that which Mr. Glanvil never said Indeed Mr. Glanvil says that Lands may be given cum qualibet Muliere with any Woman whatsoever in Maritagium but when he speaks of Gifts in Free Marriage he says they may be given cum aliqua Muliere with some Woman and the Law in this particular is still the same for Lands may now be given in Maritagium with any Woman whatsoever but Lands can only be given in Free Marriage with some Women viz. such as are of the Kindred of him who gives the Lands He also very much mistakes and wilfully I doubt the Deed made in the time of King John where he says Saher de Quency Earl of Winchester granted to Robert his Son and Heir certain Mannors ad dandum in Liberum Dotarium Hawisiae Sorori Comitis Cestriae Vxori ejusdem Roberti which Deed I shall here give you at large as I find it in the 133 page of his Historical Antiquities SAherus de Quency Comes Wintoniae omnibus Hominibus Amicis suis praesentibus futuris salutem Sciatis me concessisse dedisse praesenti Chartâ meá confirmasse Roberto de Quency Filio meo Haeredi ad dandum in liberum Donarium Hawisiae Sorori Comitis Cestriae Vxori ejusdem Roberti Bucehebeiam Grantesset Bradeham Herdewich cum omnibus earundem terrarum pertinentiis pro centum Libratis terrae Et si hae praedictae terrae non valeans per Annum centum Libras Ego in aliis terris meis de propriâ Haereditate meâ in Anglia ei tantum perficiam quòd plenari◠habeat centum Libratas terrae per visum considerationem legalium Militum hominum videlicet Comitis Cestriae meorum Et praeterea Dedi eidem Roberto Feoda duorum Militum scilicet Feodum Matthei Turpin in Winterslawa it Wilteshire pro servitio Feodi unius Militis ad dandum simul cùm terris nominati◠praedictae HawisiaeVxori suae in liberus Donarium Testibus his Comite Davide Willielmo Comite de Ferrars Philippo de Orreby Roberto de Basingham Ricardo de Lindescia Willielmo de Grumpington Henrico de Braibroc Willielmo de Syelford David Giffard Willielmo Picot Hugone Thoma Henrico Dispensariis Waltero de Coventrey Waltero Daivilla multis aliis And now as you may see in the 29 page of his second Book he says That in his Historical Antiquities the word Donarium was there misprinted for the word Dotarium whereas the word Dotarium is not in the said Copy which he Cites as a knowing Friend of mine doth inform me who at my request did very lately and carefully examine the same in one of the Couchir Books in the Dutchy Office in Grayes-Inn but the word is Donarium which probably the Transcriber did mistake for Douarium the u and n being anciently written alike and the v consonant not then used But if the word had been Dotarium it would not signifie Marriage as he doth fancy although Dos is Domesday Book be called Maritagium for Dos is twofold and that Dos which is Dotarium is the same with Douarium which we in English call Dower and is not that Dos which sometimes is called Maritagium For this see Glanvil lib. 6. cap. 1. whose words are these Dos duobus modis dicitur dos enim dicitur vulgaritèr id quod aliquis liber homo dat sponsae suae ad ostium Ecclesiae tempore desponsationis suae c. And lib. 7. cap. 1. In alia enim acceptione accipiter dos secundum leges Romanas which three last words with some others he leaves out in the eighth page of the first of his two last Books secundum quas proprie appellatur dos id quod cum muliere datur viro quod vulgariter dieitur Maritagium Now that Dotarium is that Dos which is Dower and not that Dos which is called Maritagium you may see in Sir Henry Spelman's Glossary Printed at London 1664. p. 174. whose words are these ¶ De eo Dotis genere quod uxoribus constituunt Angli ¶ Doarium Dodarium Dotarium Dinarium Dotalitium Omnia recte interpretatur vernaculum nostrum Douer non Latinum dos Est enim propriè dos illud quod maritus accipit cum uxore haec verò id quod in remunerationen dotis reportat uxor And Sir Peter very well knows that what is given in the aforesaid Deed was only given as a Dower or Joynture and not as a Gift in Free Marriage as you may see in the 132 page of his Historical Antiquities where he thus writes HAwise fourth Daughter of Earl Hugh by Bertred married Robert Quency Son and Heir of Saher de Quency Earl of Winchester She had the Earldom of Lincoln to wit the Castle and Honour of Bolingbroke and all the Lands of Earl Randle in Lindsey and Holland in Lincolnshire for which she gave 50 l. for relief On Hawise was estated for * Note Joynture Bukby Grantesset Bradeham and Herdwick as appears by this Deed in the Couchir Book of the Dutchy Office Tom. 2. Honor sive Soca de Bolingbroke num 26. pag. 508. After which he immediately doth verbatim recite the aforesaid Deed let the Reader therefore judge of the integrity of Sir Peter who in his new Books pretends that the aforesaid Lands were given in Free Marriage to the Lady Hawise and yet in his Historical Antiquities doth acknowledge that they were estated for Joynture only as by his words before mentioned doth clearly appear And whereas he says pag. 9. that it is not absolutely true which my Lord Coke doth say viz. That at this day the words in Liberum Maritagium have no other words equipollent for then a Deed in English granting Lands in Free Marriage or a Deed in French de terres en Frank Marriage would be void grants for neither of these have in strict terms the words in Liberum Maritagium c. wherefore certainly he understood it of a Grant in Latine His arguing therein is very weak for the English words in Free Marriage and the French words en Frank Marriage are the same words in Law with the Latin words in Liberum Maritagium though in different Languages but the words in Libero Conjugio though capable of the same construction in English with the words in Libero Maritagio are but equipollent to them and so the words in Wedlock free from all Services are but equipollent to the English words in Free Marriage and the French words en Nopsage acquite de Services are but equipollent to the French words En Frank Marriage Also by this Rule a gift of Lands by a Latin Deed in Libero Maritagio would be void because they are not in strict terms the words in Liberum Maritagium so that the Reader may see what strange kind of Arguments Sir Peter doth use In the 17 page he tells me that in the fourth and fifth pages of my Answer to his Addenda I further prove by comparing the age of Bertred that
supposeth but is a Member of Coventry as you may see in Mr. Dugdale's Antiquities of Warwickshire pag. 88 128 129. and in Sir Peter's Historical Antiquities pag. 129. as part of her Joynture and thereupon joined with her Son And indeed it had been a great shame to her if her Son Hugh had been such a tender Infant as Sir Peter doth suppose him to be to make him part with those Lands upon that occasion if it could have been so done and she to part with nothing at all But though I doubt not but what is here said will give full satisfaction to all judicious persons yet I think fit to acquaint the Reader that I have a Pedigres by me of the Barons de monte alto drawn not long since by Sir Peter himself and written all with his own hand in which he makes the first Robert de Monte alto Steward of Cheshire who he says lived in the time of King Steven to have issue besides other Sons who were younger two Sons Ralph and Robert who were afterwards successively Stewards of Cheshire all which is certainly true He also in his Historical Antiquities pag. 131 doth give you this Deed of Earl Hugh in which his Mother doth not join with him which I think fit in this place to Transcribe HUgo Comes Cestriae Constabulario suo Dapifero omnibus Baronibus suis omnibus Hominibus suis Francis Anglicis tam futuris quam praesentibus Salutem Concedo Sanctimonialibus de Bolintona Stagnum meum de Dunintona firmum terrae meae sicut fuit tempore Henrici Regis in perpetuam Elemosynam pro anima mea Patris mei meorum Antecessorum Et praecipio omnibus Hominibus meis quod habeant meam firmam pacem ita quod nullus inde praedictis Sanctimonialibus injuriam vel contumeliam faciat Teste Roberto Dapifero de Monte alto Filippo de Kima Simone Filio Osberti Willielmo Patric Radulfo Filio Warneri Rogero de Maletot Johanne Priore de Trentham Orm ejus Canonico Rogero Monacho de Hambi Willielmo Clerico Comitis qui Chartam scripsit apud Beltesford multis aliis Now that Robert de Montealto Stew ard of Cheshire who was Witness to this Deed was the first Robert de Montealto will be manifest because the second Robert came not to be Steward of Cheshire during the life of Earl Hugh as appean by the said Pedigree as also in Sir Peter's Book of Historical Antiquities pag. 143. and in the 33 page of this Book where you find Ralph the Steward elder Brother to the second Robert outliving Earl Hugh and being a Witness to a Deed of Randle Son to the said Hugh it will therefore necessarily follow if this Deed of Earl Hugh was made immediately before the death of that Robert de Montealto who was a Witness thereto that the said Earl Hugh was a great deal elder than his Wife Bertred for though the said Robert did live something longer than Sir Peter doth take notice of yet I think it cannot be proved that he was living any considerable time after the said Eustace and I know no reason why we should conclude that Eustace was slain immediately after he was a Witness to the other Deed or that this Robert dyed presently after he was a Witness to this Deed nay I think it will appear that the aforesaid Deed to the Nuns of Bolinton was certainly made some years before the said Robert dyed viz. in the time of King Stephen for if it had been made when Henry the Second was King Earl Hugh would not have said sicut fuit tempore Henrici Regis as he there doth but he would have said sicut fuit tempore Henrici primi or else he would have used some other words to distinguish King Henry the first from the then King Now King Stephen dying in the year 1154. and Bertred being not born till the year 1157. it will from this Deed be very clear that if Earl Hugh had sealed the said Deed immediately before King Stephen dyed yet Earl Hugh would be at the least 24 years older than Bertred his Wife And whereas he pretends that he shews pag. 93. that Earl Hugh could neither be so old as I would now suppose him nor yet that he was born Anno 1142. I answer thereto that any man who can but count 20. viz. how long it is from the year 1109. to the year 1129. or from the year 1110. to the year 1130. if he looks on my Defence of Amicia pag. 51. and my Reply pag. 61 62. may find that Hugh Cyvelick might be older than I say But I doubt Sir Peter is no good Arithmetician as well because of what he say here as also because he says in his Historical Antiquities pag. 137. which words you may also find before my Defence of Amicia pag. 14. that he was eight years older than his Wife when he was married whereas he is not now much above six years older for as you may see in his Historical Antiquities pag. 361. he was born the third of March 1613. and his Lady was baptized the 23 day of May 1620. And I believe Sir Peter will acknowledge he reckons his own birth not according to the Julian but according to the account of the Church of England and if he should say otherways he might be easily confuted for as you may find in the said 361 page he had a sister named Margaret who was born September 29 1612. and buried at Great Budworth Octob. 12 1612. so that Sir Peter could not be born the third day of March 1613. according to the Julian account for then his birth would have been but a little above five months after his said sister was born And whereas in the 49 50 51 52 pages of my Answer to his Addenda I have proved out of the Welsh History written by Caradocus Llanearuan that Hugh Cyveliok in all probability had another Wife before Bertred because he could be no less than 41 years of age when he married her although we suppose that he married her so soon as she was 14 years old Sir Peter to avoid this proof doth endeavour all he can to disparage Dr. Powell who did put out the said History and writ Notes thereon but he was not so contemptible a person as Sir Peter would make him for Mr. Wood in his History and Antiquities of Oxford lib. 2. pag. 319. doth call the said Doctor Rerum Antiquarum rimatorem industrium atque Historiarum Britannicarum peritissimum and Sir Peter doth also very well know that it is not the Doctor but Caradocus Llancaruan which I do cite he also will not suffer the said Book to be read as it should have been printed but would have it read according as he doth please which liberty if he may take he hath very ill fortune if he cannot keep it from saying any thing contrary to his own mind then he will read it not as it ought to have been printed but
Agatha could not be Daughter to the second William de Ferrars by Agnes his Wife whereas he is pitifully mistaken for I did go about no such thing but did in the 3 4 and 5 pages shew that Joane who was the wife of Lhewellyn could not be the same Joane which King John had by the said Agatha and that was all which I did there prove In the 18 and 19 pages he says that though the Writ meaning King John's Precept to the Sheriff of Shropshire to make Livery of Ellesmere to Lhewellin after his Marriage with Joane the daughter of King John if you begin the year of our Lord the 25th day of March was in the year 1204. yet it would fall out to be in the year 1205 if with ancient Historians we begin the year on the first day of January but it would be a pretty Trick if from either of these reckonings he could make out what he said in the second page of his Addenda viz. that the Marriage of the said Lhewellin with the said Joane was in the year 1206. In his 20 and 21 pages he thinks he gives me no quarter for he tells me that I would distinguish between Maritagium and liberum maritagium and say maritagium is twofold but I do not give the members of my distinction aright for a good Logician Sir Peter is the man meant without all doubt would tell me that the members of a good distinction must be opposite and not as I distinguish Maritagium est duplex vel maritagium vel liberum maritagium The members are here coincident for Liberum maritagium est maritagium Glanvils distinction is good Maritagium est vel liberum vel servitio obnoxium so that Maritagium the genus comprehends the members and both opposite one to another as either free marriage or not free marriage This is Sir Peter's charge and a very great one as he believes But for answer hereunto I doubt not but the Reader hath taken notice how in my Reply p. 39. 40. I did observe that Maritagium was twofold and that it was distinguished into Maritagium liberum and Maritagium servitio obnoxium so that when I did intend to take notice how it was distinguished Sir Peter cannot but acknowledge that I did right the only colour of Cavil that he hath is because I afterwards say that whensoever any Lands are given in a Deed in maritagio only it is always the same thing in Law as if they were given in maritagium servitio obnoxium and it is only his want of understanding that causeth him to blame me for what I so say for that expression will not thwart with what I said before this will appear because that maritagium servitio obnoxium is the elder Brother to maritagium liberum for when Lands are given in maritagio servitio obnoxio such Gifts are agreeable to the Common Law of England but when they are given in liberum maritagium as you may see Coke upon Littleton fol. 21. b. they create an estate of inheritance against the general Rule of the Law and therefore though this younger Son be connived at and tollerated yet as you may there see the Law requireth that such Gifts be legally pursued and that is the reason why such Gifts cannot be made to any but to those of the Blood as also why the words in liberum maritagium are such words of Art and so necessarily required as that they cannot be expressed by words equipollent or amounting to as much Now the Common Lawyers as you may see Coke upon Littleton fol. 189. a. have a Rule that Additio probat minoritatem and thereupon it is that my Lord Coke there tells you that the younger Son giveth the difference and pursuant to this Rule when a Gift is made in maritagio which is intended to be liable to services that being the elder Brother they use the word maritagio in the Deed and no more but when it is given in free Marriage which is the younger Brother according as my Lord Coke tells you the word liberum which is the difference is absolutely necessary And herewith agrees the common practice for I never saw in all my life where Lands were given in maritagio liable to services that the words in maritagio servitio obnoxio were used in any of the said Deeds but only the words in maritagio and if they did intend that any other services should be done over and above those services which the Law did create by the words in maritagio then they did afterwards in the said Deeds mention those other services but else not Also the word Foedum or Fee is two-fold viz. Foedum simplex and Foedum tale and yet in this Case like unto the other Fee-simple being the elder Brother to Fee-tayle all Inheritances being in Fee-simple before the Statute of Westminster 2. cap. 1. as Littleton tells you lib. 1. cap. 2. sect 13. if it be said in any Book that a Man is seized in Fee without more saying it shall be intended in Fee-simple for it shall not be intended by this word in Fee that a man is seized in Fee-tayle unless there be added to it this addition Fee-tayle as you may see in Littleton lib. 3. cap. 4. sect 293. And according to this Rule our Common Lawyers do all of them constantly use the like expressions at this day so that there is no more reason for him to tell me that I do not distinguish aright in this Case of Maritagium than there is to tell them that they do not distinguish aright as to the word Foedum the word Foedum being as much the Genus to Fee-simple and Fee-tayle as the word Maritagium is the Genus to Marriage liable to services and to Frank Marriage But would any one think if I had committed so great an Error herein as he would persuade the World I had done that Sir Peter himself within a very few lines and in the same 21 page should really be guilty of the like offence which he did unjustly charge me withall and yet you shall see that it is so for both in his 21 page and 55 page he tells you that Maritagio was often in those Ages viz. of Mr. Glanvil understood for libero maritagio both by Historians and old Deeds you shall therefore see how Sir Peter's own argument in his 20 and 21 pages may mutatis mutandis be thus retorted upon himself viz. Here Sir Peter would distinguish between Maritagium and Maritagium servitio obnoxium and say Maritagium is twofold but doth not give the Members of his Distinction aright for a good Logician would tell Sir Peter that the Members of a good Distinction must be opposite and not as he doth here distinguish Maritagium est duplex vel maritagium vel maritagium servitio obnoxium the Members are here coincident for Maritagium servitio obnoxium est maritagium Glanvil's Distinction is good Maritagium est vel liberum vel
servitio obnoxium so that Maritagium the Genus comprehends the Members and both opposite one to another as either free marriage or not free marriage let Sir Peter therefore answer this his own Argument as he thinks fit As to what he pretends in the 22 23 and 24 pages I did not say that the Gift of Ellesmere to Lhewellin was but an Estate for Life it being said in the Precept to make Livery to be an Estate in maritagio though not in libero maritagio and to make Livery thereof would have been needless if it had been a Gift in free marriage Neither is Joane his Wife proved to be a Bastard so that that Precedent is out of doors but I did give some Reasons why that Precedent would have stood him in no stead if she had been a Bastard and that a Gift in free marriage and could yet say more in that particular if occasion did require but that not being the Case I will forbear to say any more concerning the same In his 24 page and so on to the 42 besides some mistakes of his which because they are not material to the point I will not here take notice of he spends a great deal of time in proving that Hellen the Wife of John Scot was the Daughter of Lhewellin by his Wife Joane Daughter of King John whereas he did clearly prove the same in his 28 and 29 pages in very few words and the same doth also appear by a Record hereafter mentioned which very lately came to my knowledge but yet for all that this Precedent will do him no good as well because the said Joane is not proved to be a Bastard as also because Budeford and Suttehale were not given to the said Lhewellin in libero maritagio as will anon appear Sir Peter doth indeed tell us that those Mannon were given in libero maritagio to the said Lhewellin but the Deed lately belonging to Somerfield Oldfeld Esq doth prove no such thing but doth only prove that the said Lhewellin did mistake himself and think that they were given him in free marriage when they were not so given I therefore believing Sir Peter that those Mannors were given in free marriage to Lhewellin when they were not and perceiving Lhewellin to say that King John had given them to him but not telling with whom and knowing as appears in the 13 14 15 and 16 pages of my Answer to his Addenda if they were given to him in frank marriage with his Wife Joane the Daughter of the said King that the said Lhewellin had not power to dispose of them from his Son David who was his right Heir could not find out any other way to reconcile every thing in this particular but by supposing that Lhewellin had a former Wife who was a Kinswoman to King John with whom those Lands were given and by whom he had his Daughter Hellen And what I said was by way of consequence for I relied only upon my fourth Argument as appears in the said 13 page and brought the other three but as concurrent And what I there believed might very well have been true for Sir Peter proves that Lhewellin had a former Wife and if his words had been true in saying that those Mannors were given to the said Lhewellin with the said Joane in libero maritagio my words must necessarily have been true also for I was only mistaken in Hellens Mother by building upon that unsound foundation which Sir Peter did there lay But mark what work Sir Peter doth make of it now he hath proved Hellen to be Lhewellin's Daughter by his said Wife Joane for he in his 37 page grants all my Quotations I would I had cause to say the like by him and also grants what by those Lawyers is said in the 14 and 15 pages of my Answer to his Addenda which is a certain sign he doth not understand what they do say for by what is there said it appears that if a Man have Land given him in free marriage with a Wife he hath only custodiam cum uxore and hath not so much as an Estate for his own life until he be Tenant by the courtesie of England and by consequence he cannot dispose of those Lands to any person whatsoever from the next Heir And this ignorance of his runs him upon his mistake in the 36 and 37 pages of his latter Book wherein he says that a man would have but custodiam cum uxore although the Wife were not of the blood of the Donor whereas you may see in the 14 and 15 pages of my Answer to his Addenda that though when Lands be given with a Woman to a Man in frank marriage it is liberum tenementum uxoris non viri cum non habeat nisi custodiam cum uxore yet it is secus otherways when the Land is given in marriage pro homagio servitio viri and one reason of this difference betwixt Land given in marriage for which no service is to be done and Land given in marriage for which Homage is to be done is because in the one Case the Land may revert to the Donor but in the other Case the Land can never revert as you may find in Glanvil lib. 7. cap. 18. who after he hath told you what free marriage is hath these words Cum quis itaque terram aliquam cum uxore sua in maritagium ceperit si ex eadem uxore sua haeredem habuerit filium vel filiam clamantem auditum infra quatuor parietes si idem vir uxorem suam supervixerit sive vixerit haeres sive non illi in vita sua remanet maritagium illud post mortem vero ipsius ad donatorem vel ejus haeredes est reversurum Sin autem ex uxore sua nunquam habuerit haeredem tunc statim post mortem uxoris ad donatorem vel haeredes ejus revertetur maritagium Et haec est quaedam causa quare de maritagio tali non solet recipi homagium Si enim sic donata esset terra aliqua in maritagium vel alio modo quod inde reciperetur homagium tune nunquam de cetero ad donatorem vel ejus haeredes licite possit reverti ut supradictum est Sir Peter therefore must either confess that Lhewellin had no power to dispose of those Lands in such manner as he did and then that Precedent will be of no more force if the said Joane had been a Bastard than a Precedent would be of a Man who now should give Lands is libero maritagio to one who is not of the blood or else he must acknowledge that those Lands were given to Lhewellin but in maritagio and so he being liable to do homage for them might dispose of them as he did please And that they were given to him but in maritagio will appear as well by the making of Livery of them which is needless in a Gift in frank marriage as also