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A51526 An answer to two books the first being stiled a reply to Sir Thomas Mainwaring's book, entituled, An answer to Sir Peter Leicester's Addenda, the other stiled Sir Thomas Mainwaring's law-cases mistaken / written ... Sir T.M. Mainwaring, Thomas, Sir, 1623-1689. 1675 (1675) Wing M299; ESTC R21694 25,559 69

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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
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