death of the Donour what is this to the point why a man cannot give his Lands to any in libero maritagio or that it was not usual in those dayes to pass Lands in free marriage with a Bastard calling her only his Daughter without the addition of Bastard and thereby owning her to be of his bloud and kindred The sum is this The Lawyers of latter ages do expound the Law That Lands cannot pass in free marriage with Bastards ergo it was so taken in Glanvil's time and his words must be so understood though he say no such thing This is a great Non sequitur And yet our Lawyers say now Bastards are capable of receiving Lands after they have gained a Name by reputation which Amicia had gained as we see in the Deed where she is called and owned by the Earl for his Daughter But you tell me in the Close pag. 41. That the Common Law hath alwaies been the same because Cooke on Littleton saith That the Comon Law hath no Controller but an Act of Parliament which I have told you must be understood whilst it remains the Common Law which yet may alter and hath altered in sundry Particulars without any Act of Parliament as I have before proved But here I must turn you back to p. 12 13. where this hath been sufficiently answered before Pag. 42. Your Fourth Reply You say There is not any weight in what I say viz. That it seems to me in those elder ages Bastards were reputed of the Bloud by the frequent Appellation of them by the names of Unkle Brother Daughter Cosin c. for by the same reason I should repute them of the bloud now this Age being as Civil to them in their expressions as any Age could possibly be My Answer But where do you find almost in any Deeds of these last Ages where such are not now called Bastard-sons Bastard-daughters Bastard-brothers c. in all Settlements and Conveyances of Annuities or Portions which in the very ancient Ages was never used Nay what say you if I affirm they be of the Bloud both now and in former Ages though the Law will not allow them so because they now are esteemed in the eye of the Law quasi nullius filius for if A. have a Bastard son or daughter which is really his they must needs be of his bloud For no Law can extinguish Nature though by the Common Law they are not now esteemed so And what if I say that the reason why in the Deeds of those elder Ages they were called Daughters without any addition of Bastard whereby the Party owned them to be of their Kindred and Bloud was that the Inheritance of the Lands passed in libero Maritagio with such might descend to their heirs For our Lawyers now tell us that Bastards are capable of receiving Lands after they have gained a Name by Reputation why may not then Bastards having gained the Names of Daughters receive a Grant from their owned Fathers either in Frank-marriage or otherwise And now you come to Geva and my Precedent Pag. 43. For the Precedent I have given wherein I say Lands were given in libero maritagio you conceive it will not hold 1. Because it doth not certainly appear that Geva was a Bastard for in all the Records that I 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 you do not find by any Deed Record or Author whatsoever that she is at any time called a Bastard My Answer to the first Reason Though we find her not called Bastard in express terms yet we find it implied in an Author contemporary by certain and sure consequence which I believe can never be fully answered Secondly These words of Ordericus p. 787. Richardus pulcherrimus puer quem solum ex Ermentrude filia Hugonis de Claro monte genuit consulatum tenuit c. by which words you are not satisfied but he might as well mean that Richard was the only Son as well as the only Child begot on Ermentrude 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 mine And though he tells us p. 522. that E pellicibus plurimam sobolem utriusque sexus genuit yet be saith not that Geva was one of them My Answer to the Second Reason But you will not perhaps be satisfied of his meaning for he saith not Quem solum filium as you interpret him but indefinitely Quem solum ex Ermentrude genuit So that whether solum be understood adverbially which certainly to most men will here seem more proper or whether you take it for a Noun you can make no more of it in English than thus Richard a beautiful youth whom only Earl Hugh begot on Exmentrude c. For whether we English it whom only he begot or whom he only begot it retains the same sense for if any other person either Son or Daughter were begotten on Ermentrude by Earl Hugh then could it not be said that Richard was only begot on Ermentrude and can any man now imagine from this testimony of Ordericus that Earl Hugh had any other Issue by Ermentrude but only Richard So that if we believe Ordericus who living in that Age knew the truth better than we can now Geva was no Daughter by Ermentrude and by certain consequence must be one of the base Issue mentioned by Ordericus though he names none in particular and she cannot be by any former Wife your old Subterfuge because Earl Hugh had never any other Wife which ought either to be proved by you or else no good reason appears to the contrary and then sure the Deed proving Geva had Lands given in free Marriage the precedent holds and proves that Lands in those elder Ages passed with Bastards in free Marriage whom they owned for their own Children 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod erat demonstrandum I add further that if Hugh Lupus had a Daughter by Ermentrude for you your self confess and expound the words of Ordericus to be that Earl Hugh had no other Son what advantage is it for your purpose unless Geva was that Daughter and so she be legitimate See now then Geva must needs be Sister of the Whole-blood to Earl Richard and by consequence sole Heir to her Brother of all the Earldom as you interpret Ordericus and so I leave it to every Readers Judgement and then by your own Argument she should have had the Earldom Thirdly Page 45. Then you proceed to my 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 say you because it is possible the Earldom of Chester at that time as most times
be of their Kindred and Bloud are all Reasons against the Deed that it doth not prove her legitimate Neither is the Case of Amice and the three Sons of Roger alike for there is nothing that appears against them either to prove or suspect them for Bastards as there is in the case of Amice for here is a wife of Hugh Cyveliok certainly recorded a Son and four Daughters carrying away all Earl Hugh's Lands also Earl Hugh certainly known to have sundry Bastards and Amice having no share of any of the Lands whatsoever though the Eldest Daughter of Earl Hugh legitimate by a former wife as you suppose all which carries more than a bare probability that Amice was a Bastard And therefore here is a necessity of proving a former wife which I firmly believe Earl Hugh never had And to this you say the falling of the great Estate to the Coheirs was the cause of their being taken notice of by the Historians of that Age which Inheritance say you came to them as Sisters to Randle of the whole bloud although you prove not that Earl Hugh ever had any other wife and Amice you say was of the half bloud but you prove it not And you say further that Ric. Bacun's mother was not any Child of Earl Hugh But that she was Earl Hugh's Daughter I have clearly proved before pag. 23. So that all these strong Presumptions of the Bastardy of Amicia I leave to the Reader to judge whether any thing hath been substantially said by you to evince any mans impartial judgment to the contrary or that hath at all answered my first Argument And now you come to answer my second Reason or Argument against Amicia which I framed thus Whatsoever is given in frank-marriage is given as a Portion now the release of the Service of one Knights Fee in Frank-marriage according to your Deed 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 is always more worthy then the second and we find the other Daughters Married to four of the greatest Persons in England which is a strong Presumption that Amice was a Bastard methinks res ipsa loquitur Your Answer to my second Argument Pag. 64 65. To which you Answer That it will not hold for though what is given in Frank-marriage be given in consideration of a Marriage yet it cannot properly be called a Portion c. and further you say 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 But you perceive if this Deed of Earl Hughe's had been lost I would not have believed that Sir Raufe Manwaringe 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 you wonder I do believe that Earl Hugh had any Portion with his Countess Bertred because for ought you yet know it doth not appear that he had Again you say to my alledging how the other four Sisters were Married that you have answered that before And though I say that if Amice had been legitimate she being of the first venter would have been more worthy then those of the second yet in this Case when there be Sisters of two Venters and the Brother be of the second Venter and the Sisters claim as Heir to their Brother then the Sisters of the Second Venter shall be preferred before those of the first Venter and then you close your Answer in telling me that you do not understand why I call this gift of Earl Hugh's as I do in two several places a Release of the service of one Knights-Fee My Reply to your Answer to my second Argument Whereunto I Reply to what is necessary to be replied unto herein first whereas you say That if she had been a Bastard yet being the Bastard of so great a Person she would have had a great deal more then those services given her it may be so what then here is no reason that we can suppose she had any more Lands neither any Money answerable to the eldest Daughter of the Earl legitimate for the other Sisters had all the Lands of Earl Hugh and we find not any more Lands bought by Earl Hugh for Amicia but you perceive that if this Deed had been lost I would not have believed that Sir Raufe Manwaringe had had any thing with Amicia which say you is a strange way of arguing about things done long since and how do you know that I should have believed that he had had nothing at all but you would have me suppose that Amicia had as much Money as any of the Co-heirs I am sure she ought to have had so had she been legitimate but I believe neither you nor I nor any other Person can imagine so And if the Deed mentioned had been utterly lost I should not then have believed that there was such a Deed for how can any man believe that which he never knew nor heard of de non Apparentibus non Existentibus eadem est ratio and though I may well suppose that Earl Hugh had a good Portion with his Wife because he was so great a Person yet neither I nor any person that knows it not can well ghess what it was And had it only appear'd by Record That Sir Raufe Manwaringe had Married the Earl of Chester's Daughter and nothing appeared what was given I should then have believed she had had a greater Portion given her then what is mentioned in your Deed but the Deed appearing and so small a Portion mentioned therein makes it more strong that Amicia was a Bastard And lastly that you may understand what I mean by calling Earl Hugh's grant a Release of the service of one Knight's Fee because the grant to Raufe Manwaringe with Amicia in Free Marriage is only the service of Gilbert Son of Roger to wit the service of three Knights Fees he and his Heirs doing to Earl Hugh and his Heirs the service of two Knights Fees so as the Earl hereby reserves to himself the other two Knights Fees as formerly but now remits the service of the third Knights Fee nor is it the grant of any Land but of services incident to Land but what all this is to the taking of the Argument proposed I leave to the Reader to Judge Thirdly And now you come to my third and last Reason which I did put as a probable concurring Reason That all the Ancient Historians of our Nation who lived in that Age and have Recorded the other Daughters and Co-heirs yet not one of them mentioning Amicia which probably one or other would have done had she been a legitimate Daughter Your Answer to the third Reason Page 67. Whereunto you say
AN ANSWER To the BOOK of Sir THOMAS MANWARINGE Of Pever in Cheshire Baronet ENTITULED A Defence of AMICIA Daughter of HVGH CYVELIOK Earl of Chester Wherein is Vindicated and Proved that the Grounds declared in my former BOOK Concerning the Illegitimacy of AMICIA are not Evinced by any solid Answer or Reason to the contrary By Sir PETER LEYCESTER Baronet Anno Dom. 1673. TO Sir Thomas Manwaringe Baronet SIR YOU are pleased to tell me in the Front of the Epistle before your Book That it will appear strange to those that know the nearness of Blood betwixt us that you should appear in Print against me Truly I believe it is only the Zeal of your Opinion touching the Legitimacy of Amicia which perhaps hath taken but too deep a root within you that makes you now endeavour to incline the World to be of your Opinion and that the grounds alleadged in my Book swaying my Reason to the Contrary Opinion are no just grounds to support it But though we differ in Opinion yet we may be loving Friends for I hope we are Pii Adversarii both Contending for the Truth rather then Victory And therefore wish that we may be firmly united as well in the bond of Friendship as Nature and that as much as ever without any Animosity at all And you tell me further That if I would have been contented to have delivered what I did conceive concerning Amicia as an uncertainty only as I have done that of Roger Son of the said Earl Hugh I know you would have rested satisfied without giving me or the Reader the trouble of any one of your Lines To this I say I remember well you moved me to have put Amicia under the head or notion of the doubtfull Issue of Earl Hugh at which time I told you I must either put her under the Title of Lawful Issue or Unlawful Issue for there was no Medium She must certainly be either Lawful or Unlawful if any Daughter at all And I thought it not fit to put down in my Book any third Title of Doubtful Issue But till now I never understood you would be content with the words which I put down concerning Roger Son of the said Earl for else if I know my own mind I should certainly have gratified your desire therein For in the next Page of my Book I say I shall then add the Reasons why I conceive her to be a Bastard which is the very Expression that I used to the rest There are yet two or three things in your Epistle which in the first place I desire to observe unto you The first is That you say you very much wonder when I mention Raufe Manwaringe Chief (a) I apprehend not why you call him chief Justice of Chester when in those Ages there was onely one Judge of Chester at a time Justice of Chester and his Son Roger and William Manwaringe younger Son of the said Roger that I take not notice that they were all three Knights because I had seen Proofs thereof by many Deeds where the word Dominus is prefixed to each of their Names which was not that you know of used to be done to any in those elder Ages but those that were Knights Clergy men only excepted But I am very confident that it was applied also to the better sort of Gentlemen in those Ages who were no Knights nor is it a sure Rule to be always understood of a Knight unless the word Miles do follow and in those elder Ages it was sometimes prefixed and oftener omitted even to the same men as Domino Galfrido de Dutton who in the Original Chart of Nether-Tabley writes himself onely Ego Galfridus de Dutton dedi c. and several other Deeds I have seen of the same Person who was lineal Ancestor to Warburton of Arley wherein I dare affirm among the Witnesses subscribed he hath five times and more the word Dominus omitted for once that we find it prefixed to his Name and am very confident was not in him as many others also to be construed any more then Master Geffrey Dutton and that he was no Knight for when the Party makes a Deed he will usually use what Title he hath especially if he be a Knight for Esquires in those Ages were none which came not to be added in old Deeds till after the Statute of Additions under Henry the fifth although it was first made a distinct Title under Richard the second he will be loath to loose that Title whereas Subscription of Witnesses which are put by the Writer of the Deed many times have some distinction of the better sort of Gentlemen from the rest by the word Domino which word is never used in old Deeds by the Party himself but where it is joyned with another word as Ego Willielmus Manwaringe Dominus de Peever so also in your Book p. 70. where it is so used Ego Robertus Dominus Moaldiae for ipsa vox Dominus primo de Imperatore postea de Rege demum de quovis Territorii Domino enunciata fuit Spelmanni Glossarum p. 182. b. And in Subscriptions it is very uncertain sometimes added and sometimes not added And so are the placing of the Witnesses in those Subscriptions of elder Ages very uncertain also for we may observe that the same men being Witnesses to several Deeds are many times one put before the other in one Deed and the same put after the other in another Deed As to the word Dominus if you please to look back on those your Ancestors mentioned in those Deeds put down in your Book as p. 27. Radulfus de Meidnilwaringe Omnibus c. you have here no Title used and yet this was after Bertrey his Daughter was marriageable but you will say possibly that was before he was Justice of Chester see then p. 70. Testibus Radulfo de Menilwarin tunc Justiciario Cestriae c. without any Domino prefixed and very many others I have seen also where he is so Subscribed look but into your own Deeds diligently and tell me if you find not many more Subscriptions mentioning Roger Manwaringe and William Manwaringe without the word Domino then with it and not any Writing thus either Ego Rogerus or Ego Willielmus Manwaringe Miles see also p. 69. where most of the Witnesses are put with Domino prefixed and p. 70. the next Deed following Raufe Manwaringe then Justice Hamon Mascy Guarin Vernon and William Venables who are all Witnesses to the other Deed are in this put down without Domino prefixed nor is there any one in this Deed which hath Domino prefixed So that it is plain it was sometimes added by the Clearks and sometimes not added at pleasure and also used to the better sort of Gentlemen who were no Knights as well as to Knights and Clergymen And at this day as the word Sir is in common Discourse applicable to Persons of Quality from the highest to the lowest in it's larger
accounted a crime in your Family more then in others in the like Case True it is as lawful in your Case as any other if your Case be the same with others I say the Quartering of the Coat of a Coheir ought not to be given by any Herald to any but the Coheir of the Whole-blood which in strictness you do confess Is not that Herald then to be misliked both for his boldness and errour who shall at any time give it to the Half-blood but in this Case I believe it will not appear to be given to the Half-blood as you call it unless it be meant of a Half-blood illegitimate Page 23. You say Because Manwaringe was not an equal Competitor to the Coheir of the Earl of Chester could be no substantial Argument to prove Amicia Illegitimate and so you pass to illustrate your Ancestour to have been seized of a good Estate of Lands Whereunto I say I do not urge that for an Argument of her Illegitimacy we shall come to that anon I only there observed chiefly that she was no Coheir which you grant and therefore the Herald ought not to have given to Manwaringe the Quartering of the Earl of Chester's Coat at all which you do grant to be in strictness true and which I have touched immediately before and I shall likewise grant your Family to be a Family of good Quality both at that time and at this present also I should be loth to say to the contrary but as to your note of Dukes and Earls to have been anciently Judges of Chester you should have distinguished of the times for that was not till the Reign of Richard the Second who made Deputies to act in their stead before which time you find no such great Persons Judges there nor from Henry the Seaventh's time downwards Thirdly Page 24. You say The case was not the same with the other Daughters of the Earl of Chester when Rafe Manwaringe married 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 Lincolne 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 became to be his Heirs yet the said Earl Randle having never had Issue the expectation of that Estate added to their other Fortunes 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 My Answer Herein first you beg the Question which was never granted nor can ever be proved That Amicia was of the Half-legitimate Blood to Earl Randle by a former Wife of Earl Hugh but dato hoc sed non concesso It is more rational to imagine that Earl Hugh matching his only Daughter by a former Wife as you suppose in his life-time would have married her to as considerable a Person as was either provided by himself or his Son for his younger Children by a second venter whose expectation which you conceive added to their Fortunes whereby they matched to so great Persons could not be much being grounded upon great uncertainties since it could not be foreseen when they married that their Brother should dye without Issue who afterwards married two Wives successively purposely to have Issue of his own Body to inherit his own Lands Page 25. You say That I acknowledge I have been informed that three eminent Judges and four Heralds are of Opinion that Amice was Legitimate and was also told lately by one whom you hope I have no reason to discredit that since then several other Judges and Heralds have been consulted all which did concur in the same Opinion that Amicia was no Bastard My Answer Whereunto I answer and confess I was so informed but it was you your self who informed me nor did I ever yet see any Opinion under their hands nor their grounds and reasons for such their Opinions attested what can be made of this Let the ingenious Reader judge of the Argument some Judges and Heralds are of that Opinion Ergo she was Legitimate In these Cases all that can be said Pro and Con should have been put indifferently on both sides when any grave Person is to be consulted which hitherto hath been done privately on the one side onely without hearing the Reasons on the other side and you know how Opinions are not rarely given according to the putting of the Case but very frequent and usual when many times even the Lawyers themselves differ in their Opinions But I can compare this to be like nothing more then going about to get hands to a Petition or Certificate It is not Opinions that ought to sway the Judgment of all indifferent Readers but solid Reason And I shall desire to be Confuted with substantial Arguments not Opinions of this or that man And now I come to your Reply against my Answers given to the Arguments for Amicia which I shall fully comprehend in short that the Reader may with less trouble better apprehend the Point Page 30 31. Where you say That my Answer is that it is true the Law is so taken at this day i. e. that Lands cannot pass in libero maritagio with a Bastard but I doubt whether it was so taken in the elder Ages of Henry the Second and upwards and also that I cite Glanvil Chief Justice of England who lived in the time when Amicia lived and that I do also shew you a Precedent where Lands were given by the Father in free Marriage with his base Daughter and I say further that the Common Law in sundry other things is at this day altered from what it was in former Ages long after the time of Henry the Second for which I cite Cooke upon Littleton in several places These are my words Your Reply Pag. 30 31. Hereunto you reply to what I urge out of the Lord Cooke That you conceive the Common Law where not altered by Parliament is the same at this day that it was formerly and you cite Cooke upon Littleton p. 115. b. which should have been fol. 115. b. who saith It is a Maxime of the Law That whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still and so consequently you argue that if it ever were the Common Law that Lands or Services might pass in libero maritagio with a Bastard or one that is not of the Bloud it would be lawful to do so still because that part of the Law is not ousted or taken away by any Statute So that the places which I have cited do not prove That the Common Law at this day doth vary from what it was in former Ages in any particular but only that it was taken to be otherwise in those dayes just like some Cases in our Reports which at several
Bastard To all which is easily answered that being Witnesses to Deeds argues no great intimacy with the Parties and though the Judge in regard of his place were more conversant with the Earl yet Amicia may be a Bastard for all this Let the Ingenious Reader judge The like multitude of Charters or more you may find whereto Philip Orreby Judge of Chester was Witness in like nature and also many other Gentlemen as well as Roger Manwaringe and Henry de Audley But I speak not this to lessen your Family but to show the weakness of the Argument Page 54. You say Although I object that frequently in Histories and Records Bastards are called Brother Vncle Cosin Son and Daughter you grant it to be true but that you say was done either when Persons came to be great as Robert Earl of Glocester did or else done by their Relations out of humility But I can hardly find one you believe that I can certainly prove to be a Bastard or the Son of a Bastard who doth presume in a Deed to call so great a Person as the Earl of Chester was his Brother or Vncle unless he came to be a very great Person himself Indeed Precedents are scant but some there be What do you think of Ranulpho de Astbury nepote Comitis Cestriae who is put the last of all the Witnesses in the Deed as you may see in the Addenda of my Book Certainly he was but an ordinary Gentleman nor Knight nor Lord But you will say I cannot prove him a Bastard yet I should be glad to find out his Extraction if he were not 't is a shrewd presumption And now we shall come to another of like Nature Pag. 54. Here you tell me you believe Richard Bacun 's Mother was not a base Daughter of Hugh Cyveliok nor any Daughter of his at all because we find in Monasticon part 2. pag. 267. in his Deed of the Foundation of Roucester-Priory in Staffordshire his Vnkle Randle was living where take notice he calls Randle Earl of Chester his Vnkle and a William was then Archbishop of York and R. then Bishop of Chester and there was neither Archbishop of York whose name was Will. nor Bishop of Chester whose name began with R. in the time of Randle Blundevil and therefore you think it was Randle de Gernoniis that Bacun calls Vnkle and not Randle Blundevil But truly you are deceived in it For it is true as you observe that there was no such Archbishop of York called Will. nor Bishop of Chester whose Christian Name began with R. both living at one time either in the time of Randle de Blundevil or Randle de Gernoniis that I can find nor was the Bishop of Chester being also Bishop of Lichfield and Coventry at this time then subject to the Jurisdiction of York but Canterbury Wherefore I do conceive the Roll from whence the Deed in Monasticon was written is mistaken in Wil. and R. and miss-writ therein from the Original Chart it self so that certainly here is a mistake But that which is the greatest certainty to guide us is the body of the Deed it self which seems to be perfect and right wherein he tells us that he hath procured the Confirmation and Warranty of Randle Earl of Chester his Unkle for the ratifying of that his Grant And the very next Deed following in the Roll and transcribed in the Monasticon is the Deed of Randle Earl of Chester with Confirmation and Warranty accordingly whereunto Roger Lacy Constable of Cheshire is a witness who only lived in the time of Randle Blundevil and of no other Earl of Chester as you may see it clearly proved among the Barons of Halton in my Book nor is there any other Deed of Confirmation and Warranty to be found by any Earl save this wherefore certainly it must be Randle Blundevil whom Richard Bacun calleth Unkle in his own Deed of the Foundation of the said Priory and then must it necessarily follow that his Mother was the Daughter of Hugh Cyveliok and it is plain she was no Co-heir to Randle Blundevil and it doth not in the least appear that Hugh had any other wife save Bertred the Mother of the Coheirs nor doth it appear that ever she had so much as any Land in libero maritagio which you so much stand upon in the case of Amicia And now let every man be Judge whether I have aspersed as you call it this Lady unjustly and whether she be not a Bastard in the opinion of all impartial Readers which word aspersed you might well have spared for Aspersion is when a man maliciously seeks to throw dirt in anothers face unjustly of which sort of men I hope you do not judge me to be But these matters fall unavoidably in my way the truth whereof as near as I can I only do endeavour to find out Pag. 57. And now you come to answer the Arguments and Reasons which I bring to prove Amicia a Bastard Arg. 1. If Hugh Cyveliok had no other Wife than Bercred then Amicia must certainly be a Bastard for she was not a Daughter of Bertred as is granted on all sides But Hugh Cyveliok never had any other Wife than Bertred Ergo Amice was certainly a Bastard Now the Minor is to be proved by the Affirmer for oportet affirmantem probare Your Answer to the first Argument By this Rule you say I am as much bound to prove her a Bastard as you are bound to prove that Hugh Cyveliok had a former Wife because I clearly affirm that as you affirm the My Reply to the first Answer I confess what you say to be true yet the Rule of the affirmative part to prove in Logick alwayes holds true for a Negative cannot be proved But I say further that I have proved her a Bastard by this Argument unless he had a former wife for you must either deny the Major or the Minor or grant them wherefore the affirmative part lies now on your part to prove Your second Answer to my first Argument pag. 58. A less proof will serve by many degrees to prove a thing done long since than will be requisite to prove a thing done lately the like reason is in all Cases of Antiquity So that if you only prove her called Daughter being so long since she ought to be presumed legitimate unless the contrary do appear for the proving she was not by Bertred doth not prove she was a Bastard but only proves she was either a Bastard or else by a former wife and our Law at this day is That a Bastard shall not be allowed to be proved a Bastard but in his life time why should Amice then be charged with Bastardy so many hundred years after her Decease My Reply to your second Answer Where you say if you only prove her called a Daughter being so long since she ought to be presumed legitimate till the contrary appear I shall grant it but
no mention of her Heirs and secondly it is given to Geva alone and not unto a Husband with her whereas that given to Manwaringe with Amicia in free Marriage mentioneth their Heirs My Answer to the fifth Reason Though the Lord Cook say That by these words in Connubio soluto ab omni Servitio there passeth but an Estate for life yet he saith not That by these words in libero conjugio passeth onely an Estate for Life nor in Case the words had been in libero Connubio he saith nothing of them although you are pleased to say That the words in libero Conjugio are but like the words in Connubio soluto ab omni Servitio which make but an Estate for Life I think Sir you and I being no professed Lawyers had best to leave these things to the Sages of the Law and notwithstanding the Criticism I beg both your Pardon and my Lord Cooke's too if he should have said it which I do not find that he doth in this Case of Geva for the Lands in the Deed mentioned did descend to her Heirs by Basset and even at this day it is called Drayton-Basset in distinction of other Towns called also Drayton because the Bassets were anciently Lords thereof and this very Deed was taken out of a Manuscript in Arundel-house wherein the old Deeds belonging to the Bassets of Drayton-Basset in Staffordshire were enrolled about the Reign of Richard the Second as you may see it mentioned in my Book Again you say The Deed to Geva is worded as if it intended onely an Estate for Life and is made to Geva her self without the words her Heirs mentioned therein where you are to take notice that this Deed of the first Randle Earl of Chester is but a Confirmation to his Cosin Geva of a former Deed Sicuti Comes Hughes ei in libero Conjugio dedit which Deed may be had the Land passed to her and her Heirs or to her Husband with her and to their Heirs But for certain she and her Heirs by Basset had the same Land however Earl Hugh's Deed did run I add further to your Objection that it was intended but for Life because given to her onely without the word Heirs Cooke upon Littleton fol. 21. b citeth Peter Saltmarsh Case and Fitz Herbert de Natura Brevium fol. 172. that Lands may be given by a Man to his Son in Free-marriage and why not as well to his Daughter alone in Free-marriage which words of Frank-marriage do of themselves create an Estate of inheritance as Cooke saith in the same Page And now we have done with Geva and I appeal to the indifferent Reader whether my Reasons alledged for her Bastardy in my other Book be by you in the least taken off by any solid Answers or Reason to the contrary although in your Book you brand me with an aspersion of her Page 50 51. And now you come to the second Reason alledged To prove that Amicia is legitimate which you say hath its full strength yet and is not at all weakened by any thing I have said For in my computation according to reasonable suppositions it cannot be well affirmed that Hugh Cyveliok was above seven or eight years or thereabout older then his Wife Bertred But by your computation you say possibly he may be 26. or 27. years older whosoever will take pains to scan both our computations will see which is more moderate and reasonable in yours you suppose Maud Earl Hugh's Mother to be born the second year after her Mothers Marriage and Maud Married in the 16th year of her Age and Earl Hugh born in the 17th year of Maud's Age which falls in Anno 1129. and so all in the utmost possibility and if we may compute by possibilities as you do I say Earl Hugh might be but four years older then Bertred but if you will go by strong probabilities that Earl Randle Father of Earl Hugh was Married by Robert Earl of Glocester unto Maude his Daughter thereby to draw him to the Part of Queen Maud his Sister about the very year 1139. before which time we find no mention in our ancient Historians of Randle's actings against King Stephen but in that very year we do and then by some of them stiled Son in Law to the Earl of Glocester but not before that year that I remember I say if we reckon by utmost possibilities Earl Hugh could not possibly be above 16 or 17 years older then Bertred but rationally we may imagine he was not so old by many years and though your ghesses may be a little in the dark yet I think I am about the very time of his Marriage so that if your Argument carry its full strength it is certainly but a little strength if any at all it is but this Earl Hugh was older then Bertred Ergo he had a former Wife and of your account you say you may abate me several years and yet Earl Hugh be a great deal older then his Wife wherein you say true but I can gather no such quantity of years in respect of his Age reasonably to suppose him to have had any former Wife Page 52. The third and fourth Reasons you say are onely urged as concurrent Proof with the Argument brought from the words in libero maritagio So then your Achillean Argument failing all the other fall to the ground to which hath been spoken before Page 52 53. But yet you muster up all your forces to strengthen the third and fourth Reasons for Amicia as Hugh Cyveliok's Countess being witness to the Deed of Amicia in libero maritagio and yet you that take no notice of the Law in ancient times from the Law of later Ages and insist so much upon Law cannot but know a Wife is no good Witness either for or against her Husband and yet both here and in sundry other Deeds we find them put as Witnesses to their Husbands Deeds also Raufe Manwaringe calling his Daughter Bertrede after the name of the Countess methinks he should rather have called her after the name of his former Countess Mother of Amice if Earl Hugh had had any such Wife also Roger Manwaringe in another Deed calling Randle of Chester and Lincolne his Vncle Raufe Manwaringe being with the Earl at Coventry and a Witness to his Charler to his Burgesses there also Roger Manwaringe and Henry de Audley who Married his Sister being Witnesses to the Deed of Randle Earl of Chester and Lincolne concerning the Abby of Deulacres Henry de Audley's being a Witness to the Deed of Robert de Fernans this is far fetcht whose Mother was one of the Sisters and Coheirs to the aforesaid Earl Randle as also Rafe Manwaringe being a Witness to one Deed of Hugh Cyvelioks and to three other Deeds of the said Earl Randle These say you are such circumstances as shew a more great and constant intimacy between the said two families then probably would have been if Amicia had been a
You conceive there is no weight at all in it whereof I am so sensible that I conceive it not evincing nor do those Antient Historians take upon them to give an account of all the Children of Earl Hugh but onely of the Heirs of Randle Blundevill and yet you say this Reason is as strong as my first Reason My Reply I do confess I urged it but for a probable Reason and yet you say it is as strong as the first Reason Then you might have done well to have answered the first better whereunto I am sure you have made no substantial Answer as yet wherein I appeal to all indifferent and judicious Readers who shall read this Book And for the probability of this you say That the Historians take not upon them to give an Account of all the Earls Children but the Heirs of Randle but do you find that they have left out any of his legitimate Children except this whom you suppose legitimate And then you tell me Mr. Cambden hath mentioned Amicia though not among the Co-heirs yet without the brand of a Bastard you know well he is but of very late standing and not an Historian Contemporary with Amicia and so you and I do now mention her And then you tell me over again which I have before Answered that those Judges and Heralds that have seen your Deeds of which I have heard but I am sure I yet know not who they be nor ever saw any thing attested under any of their hands nor their Reasons nor grounds for their Opinion and you mention Mr. Dugdale in particular for whom I have ever had a great esteem as a diligent searcher of Antiquities all which you again and again affirm to be of your Opinion that Amicia was legitimate but because I have before spoken of this Supra pag. 10 11. I shall onely ask here what weight can be drawn from this some Persons are of that Opinion Ergo it is so whole Councels have erred unless like the Romanists you will say The Pope cannot err And perhaps those Persons you mention never heard what is to be said against that Opinion whereas it were but equal that in consultation of Opinions both sides should show what could be said Pro and Con both together which hitherto for ought I know onely one Party hath privately put the Case as he pleaseth I have often told you I would have you confute me with Reason not Opinions for one man may be of one Opinion and another man of another Opinion but it is firm Reason which must sway every mans Judgment Page 69.70 71 c. And lastly you put down two Deeds wherein Sir Raufe Manwaringe Justice of Chester is subscribed Witness before the Barons of Cheshire for which you think it will be difficult to give a Reason if Amice were a Bastard To this I say it will not be difficult at all to give a Reason and much more easie then to give a Reason why Amice should be no Bastard because Sir Raufe Manwaringe is sometime Subscribed before the Barons of Cheshire The Reason I give is this that antiently in those Ages the Justice was put sometimes before the Barons and sometimes after and sometimes after the Constable and Dapifer and before the rest of the Barons as it happened for proof see the Deed in my-Book making the Baron of Halton the prime Baron pag. 160. where the Justice comes after all the Barons also in the Deed of Earl Randle to his Barons pag. 162. where the Justice comes next after the Constable and Dapifer and before the other Barons see also in my Book pag. 130 131. two Deeds made by Hugh Cyveliok In the one the Justice is put after the Constable and Dapifer In the other the Justice is put before them many other like examples may be produced else where I will appeal herein to Mr. Dugdale or to any Antiquary in England and considering the great uncertainty of Subscription of Witnesses in old Deeds sometimes putting one before another in one Deed and again putting the same Person after the other in another Deed sometimes putting Domino prefixed before the names of some Persons in one Deed and omitting the word Domino before the names of the same Persons in another Deed whereof I have spoken pag. 5 6. in the beginning of this Book I say had you well considered or observed these things it was not worth your labour to have added those three or four leafs in the close of your Book And now I appeal to all Readers whether those Grounds and Reasons alledged in my former Book against the legitimacy of Amicia as also to prove the Bastardy of those two other Ladies as you call them Geva and the Mother of Richard Bacun be evinced by any solid Answer or Reason given yet to the contrary And so I take my leave for ever of this Trivial Controversie but shall ever remain Mobberley May 15. 1673. SIR Your affectionate Cosin and very humble Servant PETER LEYCESTER Courteous Reader I Have here in the end of this Book an opportunity to Rectifie some Omissions and Errours in my former Book which escaped me through misinformation of others and desire thee to pardon and amend them as followeth Page 206. after the last line but two should have followed this Also another John Brereton son of George Brereton of Ashley Esq was Baptised at Bowdon the 20th day of June 1576. he was afterwards Sir John Brereton Knight the King's Serjeant at Law in Ireland he died without Issue whose-Widow Married the Lord Chief Justice Bramston Sir John left all his Personal Estate which was great to his Widow and Caius-Colledge in Cambridge where he was educated and to Randle brereton his youngest Brother which Randle lived in London and Married and had Issue by his Wife a Daughter Married to Mr. Bourcher of Glocestershire and a Son called also Randle Brereton who hath an Estate in Lincolnshire and is the onely Issue Male or Heir-male of all the Family of the Breretons of Ashley now surviving 1672. Page 210. line 27. Where these words With the little Fields above lying up to Aston Town-field are totally to be expunged Page 214. line 18 19. Where it is said Daughter and sole Heir of Sir Henry Willoughby Read Daughter and sole Heir to her Mother and Daughter and Co-heir to her Father Sir Henry Willoughby for Sir Henry had three Daughters and Co-heirs Anne after the death of Sir Thomas Aston Married Mr. Gray younger Son of the Earl of Stamford she was by the first Wife of Sir Henry he had also two Daughters by his second Wife Ibidem page 214. line 25. Read He was Loyal to his Prince and raised a Regiment of Dragooners for the King at his own cost and charge and was a Gentleman of good Parts but was unfortunately c. Page 223. The 6 7 8. lines are to be expunged totally Page 233. line 4. There it is said Maud Married Sir
Robert Nedham of Shenton in Shropshire which words are to be expunged there Page 315. line 5. Where it is said George Venables of Agden Esq one small Tenement Read George Venables of Agden Esq three small Tenements in Mere in possession of William Occleston Michaiah Bower and Peter Chorton Page 315. line 13. It is there said Edward Allen of Rosthorne one small Tenement in Mere Read thus Edward Allen of Rosthorne one small Tenement in Mere in possession of Henry Hunt and two parts of John Occleston's Tenement Pag. 316. line 18 19. Where it is said Geffrey Cartwright Gentleman hath lately bought the Shaw-house in Millington from Millington of Millington Read thus Geffrey Cartwright Gentleman hath the Shaw-house in Millington which Richard Cartwright his Father bought of Thomas Shaw 1646. which Land was formerly John Wilkinson's and Shaw came to it by Marriage Pag. 326. lin 16. Where it is said Came to Francis Cholmondeley Read thus Came to Francis Cholmondeley for his life Pag. 327. line 10 11. It is said Thomas Brooke Second Son married Jane Daughter of one Weston of Sutton nigh Frodsham Tenant to Warburton of Arley instead whereof read Thomas Brooke second Son married Jane Woodfen Daughter of Richard Woodfen of Sutton near Frodsham-Bridge Her Mother afterwards married William Weston of Astmore in Halton so that Weston was but her Stepfather Pag. 327. line 13. Where it is said Richard Brooke third Son of Sir Richard Professor of Physick died at Boughton nigh Chester without Issue anno Dom. 1667. put out the words without Issue for he had Issue by Sarah his former wife daughter of Judge Warburton of Hifferton-Grange in Weverham Lordship although he had no Issue by Anne his latter wife the Widow of Edward Holland of Denton in Lancashire Esq and Daughter of Edward Warren of Pointon in Cheshire Esq Pag. 334. line 33 34. Where it is said Which Chappel Margery his Wife surviving erected with the two Monuments therein for her self and Husband anno Dom. 1456. instead whereof read thus Which Chappel this Randle caused to be erected with the two Monuments therein for himself and wife an Dom. 1456. for Margery died before him to wit 27. Hen. 6. and he died 35. Hen. 6. Page 280. line 44. Where in the Margin it is said Corrupte pro saltuariis id est Forrestars Read Corrupte pro saltationibus aut saltatoriis id est Deer-leaps Pag. 335 line 12. Where is omitted as followeth Agnes another Daughter of John Manwaringe Esquire married Sir Robert Nedham of Crannach in Cheshire Knight and afterwards of Shenton in Shropshire which Shavington vulgo Shenton was estated on him by Judge Nedham who purchased the same And this Match appeareth by a blewish Marble-stone or Monument in the Chancel of Adderley Church in Shropshire whereon are the Pictures of the said Sir Robert Nedham and Dame Agnes and seven Sons and two Daughters as also an Inscription all of them in Brass as followeth Here lieth buried under this Stone the Bodies of Sir Robert Nedeham Knight and Dame Agnes his Wife Daughter of John Manwaringe of Pever Esq which said Robert deceased the iiij day of June Anno Dom. 1556. And the said Agnes deceased the 11. Day of May Anno Dom. 1560. Pag. 345. line 36. The word where is to be expunged for the Lady Mary Cholmondeley died at Vale-royal which she purchased and gave it to Thomas Cholmondeley her fourth Son and his Heirs Page 361 line 19. Where it is said Died unmarried 1653. Read Was never married he drowned himself the sixth day of July 1653. Page 374. line 4. Read Sir Amos Meredeth Baronet a. Page 376. line 26. Where is omitted Hugh Toft another Son Parson of Alderley and after of Stopport 8. Hen. 4. lib. C. fol. 229. T. num 40 42. Anno 1402. 3. Hen. 4.29 Novem. Nobilis Vir Johannes le Manwaringe Dominus de Stockport praesentat ad Ecclesiam de Stockport Hugonem de Toft Capellanum post mortem Jacobi de Bagiley ultimi Rectoris lib. B. p. 12. d. Pag. 381. line 28. Where is omitted also another Son called William Leycester who died without Issue Pag. 392. line 22. Where should follow thus The said Robert Venables bought all the Demain-Land and also Wood 's Farm with the Mills called Cranage Mills But the Tenements were some of them bought by the Tenants themselves and some of them by others Page 437. line ult Add there thus Only Dodleston remains yet to Cheshire and Marleston nigh Eccleston and Claverton and Lache nigh Chester which were all part of Atiscros-Hundred These Amendments Reader will set thee straight in the Perusal of my former Book together with the correction of the Errata 's of Printing committed by the great negligence of the Printer which are now mentioned and rectified by a distinct Page at the end of the said Book Farewel FINIS
here are many strong reasons to the contrary and you are now to answer the Argument in hand and for your asserting that my proving she was not by Bertred doth not prove her a Bastard but proves she was either a Bastard or else by a former wife this is not to the Point for the Argument runs If he had no other wife but Bertred and she no Daughter to Bertred then certainly if she be a Daughter and so called she must needs be a Bastard and as to the point of Law you urge that a man cannot be proved a Bastard but in his life-time to the prejudice of an Estate because the dead person cannot answer to the exception Yet though the Law allows not this in Pleadings what hinders but Bastardy may be proved by History or Argumentation after the Parties death Suppose in a Register-Book I sind such a Bastard Christened one hundred years ago may not I justly call that Person a Bastard whom I find so Registred The law may make a Bastard legitimate by Act of Parliament as we find in the case of John of Gaunt's Children by Katharine Swynford 20. Ric. 2.1397 according to all intents and purposes in the Law excepta dignitate Regali whereby they shall inherit as if they had been lawfully born but may not we therefore call them Bastards No Law can make a Bastard once born to be no Bastard in nature for quod factum est semel infectum reddi non patest And to this your second Answer I believe it is clearly evinced without further demonstration Your third Answer to my first Argument p. 59. You conceive that the passing of Services in libero maritagio with Amice doth absolutely prove that she was a lawful Child and by consequence must be by a former wife and that she would not have been stiled as she is in the Deed unless she had been a legitimate Daughter and you cite Spelman 's quoting Coustum du Normand Art 77. Quoties enim agitur de honore vel commodo filiorum appellatione filiorum non comprehenduntur Bastardi My Reply to your third Answer to my first Argument This is what before you have said over and over again and hath before been answered by me But I conceive that neither the naming of her Daughter in the Deed nor passing of Services with her in libero maritagio doth at all prove her legitimate for I have before told you and shall entreat the judicious Reader to look back where I have before spoken of it That in those ancient Ages the word daughter was frequently used without the addition of Bastard both in old Deeds and Histories nay rarely or never was it otherwise used even to Bastards as well as Lawful Issue whereof are sundry Examples as is well known to all such as are skilled in Antiquities and by your own Argument if she were not called his Daughter no estate of inheritance could have passed by the Deed though she were a Bastard because hereby she is owned to be of his Kindred and Bloud and that Lands have passed in libero maritagio to some such who are known to be Bastards though not so named whereof I have shewed a Precedent of those Ages in my Book which is not refelled yet by any solid Reason to the contrary as the ingenuous Reader may perceive supra pag. 18. of this Book deinceps And what you add out of Spelman is little to the purpose that in cases of honour and profit distinction was then made that by the appellation of Sons Bastards are not comprehended by the Customs of Normandy what then this supposeth that in other cases and formerly by the appellation of Sons Bastards were comprehended This makes directly against you and you know what Spelman saith in the very words next following That the ancient Northern People admitted Bastards to succeed in their Inheritance and that William the Conquerour was not ashamed of that Title who began his Letter to Alan Earl of Little Britaine as he did many others Ego Willielmus cognomento Bastardus But what is all this to the answering of the Argument or proving Hugh Cyveliok to have had a former Wife only you would have the words in libero maritagio to prove Amice absolutely legitimate this is all the Answer you give to the Point and this will not do it as is before proved whither I have referred the Ingenious Reader Your fourth Answer to my first Argument p. 60 61. And here you say that if all must be Bastards if we could not tell who were their Mothers nor directly prove their Fathers married we might then conclude most Persons Bastards and so you could frame my own Argument against me thus If Roger Manwaringe who lived about 1119. had no wife then William Randle and Wido Sons of the said Roger were certainly Bastards But Roger Manwaringe aforesaid had no wife ergo c. Now if this Argument against Amicia will hold it would also hold against these three Children of Roger and so against all others in like nature My Reply to your fourth Answer to my first Argument Here you argue well and I say to your Minor that Roger had a Wife though we yet know not who she was and this appears certainly because the Lands descended from heir to heir But I frame my affirmative part more formally thus If the Son and Heir of Roger succeeded by descent in his Inheritance then Roger had a wife But the Son and Heir of Roger succeeded by descent in his Inheritance this is apparent by the enjoyment thereof from heir to heir ergo Roger had a wife If you deny the Sequel of the Major I prove it thus No Bastard can succeed in the Inheritance without a special settlement ergo if the Son and Heir of Roger succeeded by descent in the Inheritance then Roger must needs have a Wife and nothing appears here of any special settlement And so you see the Argument retorted is answered Now if you could prove by like Reason that Hugh Cyveliok had a former wife before Bertred it would be some Answer but the passing of Lands in libero maritagio in that age is no certain Argument of Legitimacy for then I confess you would prove ex consequenti Hugh Cyveliok must needs have another wife which is the chief contest between us for all the rest of your Arguments for her Legitimacy are little material and not solid Now you repeat this often over and over again where you have as oft been told that Land in those former Ages did pass to Bastards in libero maritagio whereof I have given you one Precedent which neither yet hath been nor as I conceive can be rationally answered Besides the words of Glanvil implying the same and the Term of Bastard was for certain usually omitted in the Deeds and Histories of those times and the owning them for Daughters in their Deeds possibly that the Lands might pass to their Heirs as owning them to