Judges there because there were no such persons belonging to the then Earls except John Lacy Constable of Chester who was not made Earl of Lincoln as appears in your Historical Antiquities page 270. till the 23 of November 1232. which was but four years and upwards before the death of John Scot the last of the said Earls yet there were ever antiently persons of good quality that were Judges of Chester and if it had not been always a place of great repute the Kings of England would never have made such very great persons to have succeeded them therein As to what you alledge in the 18 19 20 and 21 pages of your Answer I do not doubt though you affirm it can never be proved but that I have already in my former Book given most persons satisfaction that Amicia was of the Half-Blood to Earl Randle by a former wife of Earl Hugh And whereas you object that it is more rational to imagine that Earl Hugh matching his only Daughter which he had by a former Wife 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 I do answer and say That I am not certain whether Amicia was the only Daughter that Earl Hugh had by his former Wife because I know some that pretend they can tell of some other Daughter or Daughters which the said Earl Hugh had by his said Wife but I do confess I have never seen just proof of any but her but supposing her to be the only Child by his first Wife I have in my former Book pa. 23 24 and 25. shewed that there is no strength in this Argument of yours And I may here further add that if you will search for examples you may find very many where the elder Sisters sometimes because swayed by their affections and sometimes for other reasons have not been married to so great persons as the younger Sisters have been neither can you tell what portions Earl Hugh gave to Amicia or to any of his other Daughters neither is there any necessity that the elder Sister because by a former wife must have as great a portion as a younger Sister by a latter Wife because many times persons are not able to give so great portions in their younger days as afterwards and because the Children of the living Wife are oftentimes better provided for than those of the dead Wife and of this I could if I pleased instance in some that I know and in case the Father dye and leave onely issue Female by a first and a Son and issue Female by a latter wife as in this case there is great likelihood besides the advantage that the Sisters by the latter wife would have by being Heirs at Law to their Brother he dying without issue that the Brother will naturally be more kind to those Sisters that are of the Whole-Blood and about the same age and bred up with him than he will be to her that is but his Half-Sister and much older then himself And whereas you say pa. 18 and 19. that the expectation of Earl Randle Blundevile's Sisters of the Whole Blood which I 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 I do think if you consider it you cannot in good earnest believe that the said Earl Randle Blundevil's four Sisters were married before the said Earl married his first wife whatever they were when he married his second wife For Bertred the Mother of Randle Blundevil being aged but twenty four years when her Husband Earl Hugh died as appears Rot. de Dominabus pueris c. in Scacc. penes remem R. sub Tit. Linc. Rot. 1. and the said Randle as appears in your Historical Antiquities page 146. being married to Constance the Widow of Geffrey fourth Son of King Henry the II. and Daughter and Heir of Conan Duke of little Brittain and Earl of Richmond in the year 1187. at which time the said Bertred was but about Thirty years old Can any one think that all the five Children of the said Bertred were then married And whereas you say that it was I who informed you of the three eminent Judges and four Heralds that were of opinion that Amicia was Legitimate If your meaning be that I was the only person who informed you thereof I must impute it to the weakness of your memory which fails you in this particular For you had many times seen our Pedigree attested by Mr. Cambden and Mr. Sampson Erdeswick who did allow her to be a Legitimate Daughter and several years since two other Heralds who are yet living at Chester did declare to you in my hearing that she could not be a Bastard and the one of them then named to you a Chief Justice of the Common Pleas and a Lord Keeper of the Great Seal of England both now deceased who did concur with them therein and you have also seen an opinion of a Third Judge under his Hand together with Reasons for the same and though you speak so slightly of the opinions of Judges and Heralds in comparing them to Hands got to a Petition or Certificate and pretend it was without hearing the Reasons on the other side I very well know though it seems you have forgotten it that that hand which was obtained was procured because you seemed to desire to know his opinion in the case And I also know that those two Heralds who at Chester did declare their judgements against you did then hear all the reasons that you could then alledge As to what you say pa. 22 23 24 25 26 and part of the 27 in all which you would willingly prove that the Common-Law is now altered some other way than by Statute you do but lose your labor and can never prove the same For in that Maxime of the Law where it is said That whatsoever was at the Common-Law and is not ousted or taken away by any Statute remaineth still the words ousted or taken away must needs be taken conjunctively and must necessarily bear this sence that the Common-Law still is the same in all points as it was before except where taken away by Statute and if those words should be taken otherwise then the meaning would be this that that part of the Common-Law which doth remain doth remain which would be a very strange Maxime And whereas you heretofore urged some places to prove that the Common-Law is alter'd at this day from what it was in former ages long after the time of King Henry the II. which you now also urge again in the 24 page of your latter Book I must give you the same answer which I formerly did viz. That
Lands in Free-marriage with his Bastard Daughter yet there are other wayes whereby any Man that pleases and hath a disposing power may settle Lands on a Bastard Daughter and her heires Also if Glanvills words did prove as you would pretend they do To what purpose should men in those ages leave the word Bastard out of their Deeds of Free-marriage to their bastard Daughters with design thereby to cause such lands to continue to them and their heirs if such gifts might be made with any woman whatsoever so that you never observe how finely you have argued here against your self VVhere you say in the 34 35 36 and 37 Pages of your Book that though you do not find Geva called a Bastard in express terms yet you find it implyed in an Author contemporary meaning Ordericus by certain and sure consequence which you believe can never be fully answered and for the fortifying of which you pretend to give some reasons Give me leave since you give the occasion again to say what I have formerly said viz. that though Ordericus speaking of Hugh Lupus his death doth add these words Richardus autem pulcherrimus puer quem solum ex Ermentrude filia Hugonis de Claramonte genuit I am not yet satisfied but that he might as well mean that he was the only Son which Earl Hugh had by Ermentrude as that he was the only 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 you alleadg that Ordericus doth not say quem solum filium as I interpret him but indefinitly quent solum ex Ermentrude genuit and so whether solum be understood adverbially or whether it be taken for a Noun no more can be made of it in English than thus Richard a beautiful youth whom only Earl Hugh begot on Ermentrude c. and so whether we English it whom only he begot or whom he only begot it retains the same sense and shews that no other person either Son or Daughter was begotten on Ermentrude by Earl Hugh You must give me leave to dissent from you herein For I conceive this expression of quem solum genuit doth amount to as much as if he had said quem solum filium genuit which if it do then notwithstanding the said expression Earl Hugh might possibly have a Daughter or Daughters by the said Ermentrude For to what Antecedent can the word quem so properly relate as to the word puer and if so then quem solum puerum is as much as quem solum filium and so doth not exclude him from having a Daughter or Daughters by the said Ermentrude For though the word puer be by some understood to signifie a Child of either Sex as you also seem to take it in your Historical Antiquities p. 113 114. But misprinted 121 122. Yet Mr. Gouldman in his Dictionary will tell you that it is a mistake where on the word puer he thus writes Nonnullis habetur communis generis sed male ex Ovidiano illo Carmine de Iphide puella in puerum mutata Dona puer solvit quae faeminavoverat Iphis. And though you say that Geva could not be by any former Wife because Earl Hugh had never any other Wife Yet that is more than either you or I know for there were many things done in those Ages which never came to our knowledges And therefore I do not take upon me to tell whether Geva was by a former Wife than Ermentrude or whether she was by Ermentrude or whether she was a Bastard But I say she might be any of the three for any thing that you have yet proved and so long as it is uncertain what she was you can bring no considerable Argument from her against Amicia And if you could prove her a Bastard it would signifie nothing because the Deed made to her is not a gift in Frank-marriage as hath formerly and will hereafter appear And whereas you ask p. 36. Being I expound the words of Ordericus to be that Earl Hugh had no other Son What advantage it is to my purpose unless Geva was that Daughter and was legitimate I answer That possibly Geva might be that Daughter or possibly Geva might be by a former Wife and that Daughter which Earl Hugh had by Ermentrude might die before Earl Richard so that nothing of certainty can be gathered from such Arguments as these As to what you say p. 38 39 40 41. that I am not to argue upon possibilities and because it might possibly be so to say that the Earldome of Chester was antiently entayled on the heires Males I Answer That I do not positively aver any such thing But let the case be how it will and whethersoever Geva or Randle de Meschines was the heir general to Richard Earl of Chester it seems to me that the said Earldome did not come by descent to the heir general whoever that was For it clearly appears that Geva had it not and Randle de Meschines had it not by descent For if what James York in his Vnion of Honour p. 105. sayes be true Randle de Meschines was made Earl by Grant of King Henry the First and Ordericus p. 876. tells us that he restored to the said King Henry all the Land which he had by his Wife the Widow of Roger de Romara for the Earldom of Chester which was more than was needful for him to do if he had a good title thereto by descent And whereas you ask me Why may I think that the King though he gave it to Randle did not give the honour and lands unto him as in whom was the greatest right to have it and do say that to this I give no answer at all I may well tell you that I could not give an Answer until you did ask the Question and you never asked the Question in your former Book But the Answer which I shall now give to this Question is That I suppose Kings in such cases do that which to them seems most just but yet Kings in these cases as well as in others are of different Judgments from one another very many times and indeed the very same Princes will be sometimes of one mind and sometimes of another mind concerning the same thing And thus we see when Randle Blundevile Earl of Chester dyed which was in the year 1232. King Henry the Third did suffer the four Sisters of the said Earl Randle who were of the whole blood to inherit that estate and the said Earldome went to John Scot son of David Earl of Huntingdon in right of Maud his Mother the eldest of the said four Sisters But when the said John Scot dyed which was in the year 1237 the said King Henry the Third would not suffer the said Earldome of Chester to come to any
the words liberum conjugium to create an Estate of Inheritance as well as the words liberum maritagium which no man before you ever said Whereas no words that are equipollent or amounting to as much can do it it being impossible to make an Estate in Free-marriage if there be wanting either the word liberum or the word Maritagium Also as the words in libero conjugio can make but an Estate for life so it is also clear that in your Deed of Earl Randle to Ceva there was no more intended than an Estate for life it running all along in the singular number Et teneat bene in pace c. ut melius liberius tenuit And it is likely the Deed of Earl Hugh did run after the same manner by that expression sicuti Comes Hughes ei in libero conjugio dedit But I believe the Bassets did afterwards enjoy the said lands though how or by vertue of what Deed I am not able to declare For in Monasticon Anglicanum Part 1. p. 439 and in your Historical Antiquities p. 113. but misprinted 121. I find Geffrey Ridell and Ralph Basset called the heires of the said Geva Now if those persons were the heires of her body and the aforesaid Deed a Gift in Frank-marriage Why did not Earl Randle confirm or grant those lands to her heires as well as to her And if they were not the heirs of her body she could not be a bastard For as my Lord Coke on Littleton fol. 3. b. tells you A Bastard can have no heir but of his own body And whereas I brought another Argument to prove that this Gift of Geva could not be a Gift in Frank-marriage Because my Lord Coke says that one of the things incident to a Frank-marriage is that the Donees shall hold freely of the Donour till the fourth degree be past which cannot be in Geva's case Because there was no Donees but one Donee only and the Estate could not continue until the Fourth degree was past because it was onely for Geva's life You tell me that my Lord Coke upon Littleton fol. 21. b. citeth Peter Saltmarch's 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 to his Daughter alone in Free-marriage But I pray you How can there be a Gift in Free-marriage if there be no Marriage at all and How can there be a Marriage if the Man or Woman be alone But you misunderstand this place as you do many others For my Lord Coke if you observe him well doth not there say that such a Gift can be made with a Man alone or with a Woman alone But there tells you that a gift in free-marriage may be either to a Man with a woman or as some have held to a Woman with a Man and for proof thereof cites Peter Saltmarsh his case and Fitz-Herbert And this is no more than what I said in the 49 Page of my former Book where I also shewed you how Bracton did therewith accord But there is none of them that saith as you do That land may be given in Frank-marriage to a Man without a Woman or to a VVoman without a Man In your 48 49 Pages you would willingly perswade the Reader that Earl Randle de Gernoniis Father to Earl Hugh Cyveliok was Marryed by Robert Earl of Gloucester unto Maude his Daughter thereby to draw him to the part of Queen Maude his Sister about the very year 1139. before which time we find no mention in our antient Historians of Randle's acting against King Stephen but in that very year we do and then by some of them stiled Son-in-law to the Earl of Gloucester But I pray you VVhy is it not full as likely that before that time Randle de Gernoniis was Marryed to the Daughter of the said Earl of Gloucester and thereby was the more easily drawn to that party to which he stood so near related as that that match should be made purposely to draw him to that party And how could you hear much of that Earl Randle's actings against King Stephen before the year 1139 seeing Gervasius a Benedictine Monke of Canterbury who lived in the Reign of King John tells us in his Chronicles or Annalls col 1345. l. 60. that it was in the year 1138 when Robert Earl of Gloucester did begin to quarrel with the said King Stephen And whereas you yet seem unsatisfied that Earl Hugh was of such an age as probably to have had another Wife before Bertred and do now say p. 49. if we reckon by utmost possibilities that Earl Hugh could not possibly be above sixteen or seventeen years older than Bertred I do very much wonder thereat seeing I have formerly from the Argument which you used to prove it to be otherwayes made it manifest that he might possibly be several years above double her age and that so clearly that I am confident no man besides your self will offer to deny the same For I then told you that whether the Marriage of Robert Earl of Gloucester with Mabill Daughter and heir of Robert Fitz-Hamon was according to Selden in the year 1109. or according to Stow in the year 1110. the said Mabill might have Maude her second Daughter in the year 1112 which Maude if she was Marryed to Earl Randle de Gernoniis in the year 1128 when she was sixteen years of age might have her Son Hugh Cyvelick in the year 1129. which if true the said Earl Hugh was fifty two years old at his death For he died in the year 1181 and if so then he was four years above twice the age of Bertred For she was but Twenty four years old when the said Earl Hugh died as appears Rot. de Dominabus pueris c. in Scacc. penes Remem R. sub Tit. Linc. Rot. 1. And it is certain that the said Earl Hugh was Earl of Chester about four years before his VVife Bertred was born besides what age he was of when his Father died and his Daughter Amicia was Married in his life time and none knows how many years before his death And if the Marriage of the said Robert Earl of Gloucester with the said Mabill was in the year 1109. then he might possibly be Five years above double the age of his VVife Bertred And this is the more likely to be true Because though Mr. Selden be a later VVriter than Mr. Stow is yet Mr. Selden cites one that lived long before Mr. Stow as will appear by the old English Rithmical Story attributed to one Robert of Glocester and recited in the 647. Page of Mr. Seldens Titles of Honour In your Answer pag. 50 51 52 53. you endeavor to weaken the Third and Fourth reasons which were brought as concurrent proof on the behalf of Amicia by saying that Hugh Cyveliok 's Wife was a witness to her Husbands Deed which a Wife cannot now be she being not
capable to be a Witness either for or against her Husband whereby you would insinuate a change of the Law in that particular from what it was formerly and you also say that if Hugh Cyveliok had had a former Wife sure Raph Mainwaring would have called his Daughter after her and not after the then Countess And you there make nothing of Roger Mainwaring's calling Randle Earl of Chester and Lincoln his Uncle in a Deed nor of Henry de Audley's being a Witness to the Deeds of Randle Earl of Chester and Lincoln and of Robert de Ferrars which later you say is far fetcht nor of Raph Mainwarings and Roger Mainwarings being Witnesses to so many Deeds of those that were Earles of Chester in their times But to these things I say that the Law is still the same as it was formerly in the particular by you here mentioned For both antiently and at this day also I know nothing that hinders but that the Wife may subscribe as a Witness to a Deed which her Husband doth make and though she neither antiently could nor yet can be a witness for or against her Husband yet there is this use of it that if the Wife survive her Husband and it come to be controverted amongst other parties whether such a Deed was Sealed by him or not she in the time of her VVidowhood may be a good VVitness for the proving of the same And as to the calling of Sir Raph Mainwarings Daughter by the name of Bertred after the present Countess and not after the name of Hugh Cyvelioks first VVife That is no wonder at all it being more ordinary to call Daughters after their Godmothers Names than after the names of their own Grandmothers and especially when the Godmothers are of great quality Now the said Amicia's Daughter being called Bertred which is a very unusual name it is more than probable according to what you expressed to me under your hand in April 1664. that Bertred the Countess was Godmother to the said Bertred Mainwaring And if so it is very unlikely that Amicia was illegitimate For VVives are seldome Godmothers to their Husbands Bastards or to the Children of such Bastards Also Sir Raph Mainwaring and Sir Roger Mainwaring and Henry de Audley the Sou-in-law of the said Sir Raph Mainwaring being so often VVitnesses to the Deeds of the Earls of Chester and to the Deeds of their very near Relations doth certainly shew there was then a very great and constant intimacy betwixt the said Families And though you pretend that Sir Raph Mainwaring was very conversant with the Earle because he was Judge and therefore came so often to be a VVitness and say that we may find the like number of Charters or more to which Philip Orreby Judge of Chester was witness in like nature I conceive that you are deceived therein although Philip Orreby was Judge of Chester perhaps longer than Sir Raph Mainwaring was For I do believe that I can make it to appear by what Deeds I have and what Deeds I have seen of others that Sir Raph Maeinwaring and his Son Sir Roger Mainwaring were witnesses to more Deeds of Hugh Cyvelioks and Randle Blundevil than any other persons of any one Family were Add hereunto which I have in my former Book mentioned that Sir Roger Mainwaring in a Deed of his own calls Randle Earl of Chester and Lincoln his Vncle and how I did there observe that though the VVriters of Histories did sometimes give to Bastards the name of Cosen Brother Uncle Son and Daughter I did believe you could hardly find any one that you could certainly prove to be a Bastard or the Son of a Bastard that did presume in a Deed to call so great a person as the Earl of Chester was his Brother or Uncle unless he came to be a very great Person himself And this is so true that in the 53 Page you are forced to confess that such Precedents are scant but yet you think you have found one viz. Randle de Estbury or Astbury who in a Deed mentioned in the Addenda of your Historical Antiquities is called the Earl of Chester 's Nephew and is put the last of all the witnesses and was certainly but an ordinary Gentleman nor Knight nor Lord. But this Precedent will fail you for two Reasons First Because you do as good as confess that you cannot prove him to be a Bastard and he might perhaps be a younger Brother or Son of a younger Brother and so not necessarily a Knight or a Lord And Secondly Because he doth not call himself the Earles Nephew but is called so by others and that is so far from contradicting that it doth confirm what I said in my former Book Also if you observe it there were no VVitnesses to the said Deed besides the said Randle de Astbury except David de Malpas whom I conceive was Baron of Malpas and William his Son And whereas you say you should be glad to find out the Extraction of the said Randle de Astbury if he were not a Bastard Though it be perhaps impossible now to tell you his Extraction certainly because he lived so long since and we only find him mentioned as a witness in one Ded Yet I doubt not but to satisfie the Reader that he and his Father and Mother might all be Legitimate For not to say that he might be a Son of some other Daughter of the said Hugh Cyveliok by his former VVife he might possibly be the Son of Roger Son of Hugh Cyveliok And I know no great reason why the said Roger should by you be suspected to be a bastard For you only find him as appears by your Historical Antiquities p. 134. and in my First Book p. 1. mentioned as a Witness to a Deed of his Brother Randle 's to the Abbey of Saint VVerburge So that you conceive him to be a bastard Because neither he nor any issue-Male of his succeeded in the Earldome of Chester after the death of Randle Blundevil VVhereas the said Roger might be lawful and be Father to this Randle de Astbury and yet both he and the said Randle de Astbury might dye before the said Randle de Blundevil For he lived very long and was Earl of Chester above Fifty years Also it is very strange if Amicia was a Bastard and the Father or Mother of the said Randle de Astbury was also a Bastard that those Bastards could find none to call their Children after but the then Countess and the then Earl For the Daughter of Amicia was called Bertred after Randle Blundevill's Mother and Randle de Astbury was of the same Name with the said Earl But admitting that the said Roger was a Bastard Why might not Randle de Astbury however be his Son and then What necessity of what you say in your Addenda of either finding out another Base Son or another Base Daughter of the said Hugh Cyveliok But you have been very willing to charge
of the Sons of any of the Sisters of the said John Scot though he had before permitted it to come to the Son of the eldest Sister of the said Randle Blundevile And whereas you say that if Geva had been but of the half-blood she woul'd by all probability have busled hard for so great an Estate in those Ages before she had lost it I do wonder very much at what you say Because any Cosen that is of the whole blood how many degrees soever the distance is will inherit at Law before a Brother or Sister that is but of the half-blood And whereas you say I am come to an excellent way of arguing by ifs and ands and possibilities by which means Answers may be made to any thing even to eternity I do not offer from those kinds of Arguments or Answers to determine any thing certainly but only make use of them to shew the uncertainty of several things which you urge But you pretend certainties from such kind of Arguments and particularly in this case of Amicia For all the reasons which you alleadg against her would not prove her to be a Bastard if those Arguments that are brought on her behalf were all laid aside In your Answer to my Defence of Amicia p. 42 43. you again cavil with me without any just cause and say that the case that I did there put comes as near to the case of Geva as an Apple to an Oyster But whether it be so as you say let the Reader judge In your Historical Antiquities p. 136. which words of yours are also in the 10 11 pages of my Defence of Amicia you have these words viz. And howbeit many Earldomes have descended to the heires Males and not to the heires general yet in this case were no heires Male but two Females an Aunt legitimate who had it and a Sister not legitimate and shew me a precedent whereever the heires of an Aunt inherited before the heires of a Sister both legally born and no heires-male left unless in case of forfeiture by Treason or some other great cause to hinder the same From these words of yours I did not offer to raise any cavil by telling you that though honours or lands may be given to any persons whatsoever by those who have power to dispose of the same that yet they cannot properly be said to descend to any but to the next heires and therefore in point of descent it is impossible that any one that is further off should be preferred before another that is nearer Neither did I tell you how you did name an Aunt legitimate in stead of the Son of an Aunt legitimate that had it But I supposing as I think any other would have done from these words of yours that your meaning was that Randle de Meschines must needs have more right to succeed in that Earldom of Chester than Geva had because the said Randle did enjoy the same and that you thought it to be very clear that whensoever there were no heirs-Male left if the honour went to any of the Kindred the King did alwayes prefer that person who was next of blood to it except in case of Treason or the like and did thereupon desire me to shew you a precedent to the contrary if I so could and you instancing in the Earldome and not in the Lands I did thereupon shew you where one that was a Baron by Writ dyed without heir Male leaving two Sisters only and the Baronry came to the Husband of the younger Sister and not to the Husband of the elder Sister it being the pleasure of the King to call Sir Hunt Bourcher who had Marryed the younger Sister to the Parliament and not to call Sir Thomas Nevil who had Marryed the elder Sister And if this be not a like case to that of Geva and Earl Randle if Geva was legitimate I am still very much mistaken And whereas you now demand of me If Geva was legitimate Why the Lands of Richard Earl of Chester did not come to her whatever the Earldom did Though I cannot give you the certain reason because the thing was done so long since yet I can shew you several possibilities why they might not For either it might be the will and pleasure of the then King that Randle de Meschines should have the Estate as well as Earldome and that Geva should have recompence made her some other way as the Sisters of John Scot Earl of Chester in the like case afterwards had or perhaps she might be of the half-blood to Earl Richard and Randle de Meschines be heir at Law before her or perhaps the said Ear I Richard having a greater kindness for the said Earl Randle than he had for Geva there being sometimes great unkindnesses betwixt Brothers and Sisters might give his Estate to the said Randle de Meschines Those Arguments of mine which you mention p. 44. and are pretended to be Answered by you pag. 45 46 47. remain yet in their greatest strength and are not at all answered by you nay the one of them is so farr from being answered that it is not understood by you unless you only pretend not to understand it because you perceive you cannot give an answer to it and I rather think that to be the truth of the case Because you have not recited my Argument as I did express it For you recite it thus Because Coke upon Littleton fo 21. b. tells us that these words in liberum Maritaginm are words of Art and so are necessarily required and there you break off abruptly Whereas I told you that the Deed which you alleadged to be made to Geva would not at all concern Amicia if Geva was a bastard because it was no gift in Frank-marriage as that gift to Amicia was And for a proof thereof I told you that my Lord Coke upon Littleton in the place abovesaid did tell you that these words in liberum maritagium are such words of Art and so necessarily required in these kind of gifts as they cannot be expressed by words equipollent or amounting to as much And he also there gave you the reason which was that these words in liberum Maritagium did create an Estate of Inheritance against the general Rule of the Law and therefore the Law required that it should be legally pursued And to explain this he also said that if a man give Lands to another with his Daughter in connubio soluto ab omni servitio c. yet there passeth in this case but an Estate for life For although those words be the same in sense as the words in libero maritagio be yet being not the very same words they do not create an Estate of Inheritance But you contrary to all this would not believe my Lord Coke if he should have said that the words in libero conjugio did make but an Estate for life which he hath indeed by consequence said But you will have
and say that Randle Blundevil made that Deed which cannot be Because those witnesses as appears before did live in the time of Randle de Gernoniis and not in the time of the said Randle Blundevil they being no witnesses at any time to any Deed of Randle Blundevils that I can find although he was Earl of Chester above fifty years so that nothing can possibly be more clear than this is As to the word aspersed which you fault me for using I do not apprehend that it signifies a malicious seeking to throw dirt in anothers face unjustly For to asperse properly signifies but to besprinkle with which malice will seldom rest satisfied and I will do you this right to declare that I believe it is not malice but a desire to divulge your supposed new Discovery which occasioned you thus to do That way of Arguing which you use in the 57 Page is very odd For Because you suppose the Respondent will deny your Minor you would have him give over answering and turn Opponent and so endeavour to disprove what you ought to prove But what you say Page 58. that you have proved Amicia to be a Bastard unless Hugh Cyveliok had a former Wife and also Page 59. that 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 is undoubtedly true For Amicia must needs be a bastard unless she was legitimate You grant in your 59 Page That my proving Amicia to be called a daughter so long since she ought to be presumed legitimate till the contrary appear But why therefore do not you presume her so to be And though you pretend there are many strong reasons to the contrary yet I have shewed the invalidity of them all and therefore what I have formerly said stands good and is to the point viz. That the proving that she was not by Bertred does not prove that she was a bastard but onely proves that she was either a bastard or by a former wife And as to what you alleadg Page 60. that though the Law allowes not this in pleadings what hinders but Bastardy may be proved by History or Argumentation after the parties death As supppose in a Register-Book you find such a Bastard Christened one hundred yeares ago may not you justly call that person a bastard whom you find so Registred I do answer and say That even in that case though it be good proof that there was then a Bastard of that name yet if in any Deed or otherwayes in the same Age you find one of that name you are not to be too positive that that Man was that Bastard because there might be more persons than one of the same Name whose Fathers might also be of the same Name each with other and though these mistakes might easily be cleared by the party concerned whilst he was alive yet it may be difficult sometimes to do it after he is dead And that is as I suppose one reason why the Law gives no liberty to prove Bastardy against any Man after his death But the cases of the children of John of Gaunt by Katherine Swynford are not like to this case For you certainly know that they were born Bastards but afterwards legitimated and I think after their legitimation they might have had the same remedies against any that did call them Bastards that persons lawfully born might have Whereas I tell you out of Sir Henry Spelman that in cases of honor and profit by the customes of Normandy appellatione filiorum non comprehenduntur bastardi You answer and say that in other cases and formerly by the appellation of sons bastards were comprehended and that this makes directly against me But how this makes against me in what cases soever bastards were formerly comprehended by the appellation of Sons and Daughters if they were not comprehended in cases of honour and profit I cannot tell feeing that Amicia is called a Daughter and that in a case of so great profit that you will needs have it to be her whole Portion And whereas you mention the next words of Spelman viz. 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 I do not know how you can apply those expressions to the case in hand and if you could they would make against you For when Bastard children were so much esteemed as to be admitted to succeed in the inheritance then certainly illegitimate Daughters would have great Portions as well as those that were legitimate And why should not Amicia if she was a Bastard be so called as well as Paganus was who as you say was the Son of Hugh Cyveliok Or why should Hugh Cyveliok himself be more ashamed to call her so than William the Conqueror was to stile himself a Bastard What else you have said Page 61 62 63. hath been said over and over again by you and hath formerly received a full Answer In the 64 65 Pages you recite and endeavour to fortifie an Argument of mine which I brought not as a good Argument but compared it to one of yours to shew the invalidity thereof neither did I at all doubt but that William Randle and Wydo Sons of the aforesaid Roger Mainwaring were all legitimate it being good proof thereof that in so antient a Record they are all three called Sons of the said Roger But I shewed you by the Rule by which you went viz. that none should be believed lawfull unless we could directly and in terminis prove their Fathers to be married that the said William Randle and Wido and most persons that lived in the First and Second Centuries might be concluded to be Bastards And though you tell me that I here argue well which must needs be because this Argument of mine is so like to yours and that you would say to my Minor that Roger had a Wife though we yet know not who she was and that this appears certainly because the Lands descended from heir to heir and that you tell me how you would frame your affirmative part more formally Yet in stead of trying whether you could in terminis prove which by this your Rule you ought to do whether William who was the eldest of the three Sons of the said Roger was his lawful Son or but a bastard you beg what you should prove and take it for granted that he was the Son and Heir and say that if the Son and Heir of Roger succeeded by descent in his Fathers Inheritance then Roger had a Wise whereas if William was the Son and Heir of Roger the said Roger his Father must needs have a Wife whethersoever William succeeded in the Inheritance by descent or was disinherited For none but a
him with many Bastards both Sons and Daughters although I find no great Reason to suspect that he had any at all unless Paganus de Milton and it is possible in that case you having neither the Deed nor a Copy of the Deed by you that you might take Hugh Cyveliok for Hugh Lupus as well as in another Deed as will anon appear you did take Randle Blundevil for Randle de Gernoniis I am still of the same opinion that I was formerly of viz. That Richard Bacuns Mother was not a Base Daughter of Hugh Gyveliok nor any Daughter of his at all but that she was daughter to Randle Meschines and Sister to Randle de Gernoniis And I think those reasons which I have given in my former Book do fully prove the same And albeit you tell me in the 54 55 and 56 pages of your latter Book that truly I am deceived in it yet I do not doubt but to satisfy all the world that it is you and not I that are deceived therein And whereas you say it is true as I 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 Blundevill or Randle de Gernoniis I answer I did make no such observation at all but the contrary For I shewed you that in the time of Randle de Gernoniis William Sisters Son to King Stephen was Archbishop of York for a time viz. about 1142 or 1143. though he was afterwards ousted of it again till 1152. or 1153. and Roger Clinton was Bishop of Coventry and Litchfield which then was the same with the Bishop of Chester from the year 1128 until the year 1148 or 1149. And I then also told you that there was no William Archbishop of York at anytime during the life of Randle Blundevill nor any man Bishop of Chester whose Christian name began with R. except Richard Peche who died about the time that Hugh Cyveliok died viz. in 1182 though some say in 1181. and some in 1183. at which time Randle Blundevill could not be of age to Seal any kind of Deed because Bertred the said Randle's Mother was then but about Twenty five years old and this Argument you perceive to be so strong against you in this point that you have no way to avoid it but by giving a strange answer to it which is that you do conceive the Roll from whence the Deed in Monasticon Par. 2. Pa. 267. is written is mistaken in Will and R. and miswrit therein from the Original Chart it self Which liberty if a Man might take he might answer any thing in the world and your reason for so saying is Because Richard Bacun in his said Deed doth say that he had procured the warranty of Randle Earl of Chester his Vncle for the ratifying of that 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 Blundevill and no other Earl of Chester as I may see cleerly proved among the Barons of Halton in your Book nor is there any other Deed of Confirmation and Warranty to be found by any Earl save this wherefore you say certainly it must be Randle Blundevil whom Richard Bacun calleth Vncle in his own Deed of the Foundation of the said Priory And you also say the Bishop of Chester being also Bishop of Litchfield and Coventry at that time he was not then subject to the jurisdiction of York but Canterbury and you also say That there was no 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 Blundevill or Randle de Gernoniis that you can find To which I answer That it is not to be doubted but that Richard Bacun did obtain the Warranty and Confirmation of that Randle Earl of Chester who was his Uncle and then living neither is it to be doubted but that the Deed to which Roger Constable of Cheshire was a witness was the Deed of Randle Blundevil I having proved it to be so in the 56 page of my former Book because Roger Constable of Cheshire was living in the time of no other Randle but Randle Blundevil so that you did not need to send me to see that clearly proved among the Barons of Halton in your Book but the Deed of Confirmation of that Earl who was Uncle of Richard Bacun is not in the Monasticon but was probably lost as many other antient Deeds were and that Deed of Randle Blundevill which is there is but another Deed of Confirmation according to the mode of those times when it was usual to obtain such from several Princes several Generations one after another and for proof hereof I did desire you to read Monasticon Anglicanum Par. 2 Pa. 24 and 25. where you might find King Henry the I. reciting and confirming what had been given to the Priory of Huntendune and pa. 27. how King Henry the III. did the like and yet there was a greater space betwixt King Henry the I. and King Henry the III. than there was betwixt Randle de Gernoniis and Randle de Blundevil and very many others of the like nature may be found by those who will take the pains to make search in the several Monasticons Also it is very strange that you should fancy that the Roll where the said Deed in Monasticon was written should be mistaken both in Will and R. especially since the word Will. was the first word in the said Deed neither is it a badge of any mistake in the said Deed because the Archbishop of York is named in it though the Bishop of Chester being at that time the same with the Bishop of Coventry and Litchfield was not then subject to the Jurisdiction of York but Canterbury For the Archbishop of York was not named upon that account but because some of the places mentioned in the said Deed were within the Province and Diocesse of York as particularly Rosington was it being within the West-riding of Yorkshire but I suppose your principal reason why you suspect the Roll was mistaken is because you say 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 Blundevill or Randle de Gernoniis that you can find Which saying of yours seems very strange to me but I believe all your doubt is about the Will that was Archbishop of York because Dr. Heylin a late Writer in his Catalogue of Bishops doth not mention the said Williams being chosen Archbishop immediately upon the death of Thurstan for I am consident that you are well satisfied that Roger Clinton was