A REPLY TO Sr. Thomas Manwaring's ANSWER TO MY TWO BOOKS.

Written by Sr. Peter Leycester Baronet, Anno Domini, 1675.

The Second REPLY.

Together with the Case of Amicia truly Stated.

LONDON, Printed in the Year, 1676.

THE PREFACE TO THE R …

THE PREFACE TO THE READER.

I Received on the 13th. of April, 1675. a very strange kind of Book from Sir Thomas Man­waring, then delivered unto me by his Servant; wherein I ex­pected a Book of Arguing to the point of the Controversie between us: But behold a book of Rail­ing, catching (as his usual manner is) at every small impertinent thing.

That I may the sooner come to the Book it self, I shall observe [Page]only out of his Epistle, this one thing, How he minceth the Truth, in telling the Reader—that my Servant did (by my Command) signifie unto him in a Letter, that I would write again, and this be­fore Sir Thomas had Printed one word of his Reply: So that if he find me thus Stumbling at the first, it is well if he do not take me oft Tripping before I come to my Jour­neys end.

Whereunto I say that he deals not clearly in his words, and de­clareth not the whole Truth: For it is true, that I did command my Servant to write unto him; but what did I command him to write? Was it barely that I would then write again? No: but to let him know, that I had then found some new Precedents which (I conceived) would clear the point between us, and came to my knowledge since I had published my Answer; of which I thought good to give him timely notice, that I would add them to my Answer already Printed, which [Page]were omitted therein; and this be­fore his Reply was Printed, as Sir Thomas here confesseth: This was rather an amendment of my former book, then writing again de novo; for as yet he had published no book against it, but this part of the Truth he conceals; and if my Ser­vant writ otherwise than to this effect, I utterly disown it to be written by my command: But be­fore I could get my Addenda Print­ed, he Published a Reply to my Answer; wherein were so many Crimes charged upon me, that I was forced to a Vindication of my self, which I did then put into my Ad­denda, yet not so fully as I might have done: See my Addenda, p. 8. and also p. 27.

And whatsoever I have also writ­ten more, then what I first intended and declared, I have been forced thereunto in my own defence.

And so I will now briefly come to his Book, and hope to shew clear­ly who Trips most in the Journey, he or I; and wherein I do Trip, it [Page]shall be readily confest: I think mine will not be found many, nor material to the main point; but I believe his will be found Funda­mental Errors: And I could wish that Sir Thomas would as freely confess his Trips as I shall confess mine, then the whole business would soon be at an end.

And herein I shall endeavour all along to avoyd all abloquies, where­with he adoundeth as much as I can; for Calumnies and Slanders will find no place among Wise and Good Men, and are ever incon­sistent with those excellent Christian Graces of Humility and meekness.

Mobberly, May the 18th. 1675.

A Second Reply.

Pag. 1. Of his Answer to my two Books.

HEre he saith, that I affirm several times, that Glanvil saith that Lands may be given with any Wo­man in liberum ma­ritagium: where­as he saith only, they may be given cum quâlibet muliere in maritagium.

My Reply.

I did, and do yet affirm it; and have proved it too; see pag. 54. of my former Reply, which yet he hath [Page 2]not answered: nor do I believe that he can rationally answer my Argument there: For though Glan­vil hath not these very words— Lands may be given with any Wo­man in liberum maritagium]; yet he saith it by Consequence, drawn clearly out of his words, lib. 7. cap. 18. which is the same in ef­fect.

Nor doth Sir Thomas repeat Glanvil's words aright; and yet he is ready upon all occasions to tax me with the like: the words of Glanvil, lib. 7. cap. 1. are—quili­bet liber homo, terram habens, quan­dam partem terrae sua cùm filiâ suâ, vel cum aliquâ aliâ qualibet muliere, potest dare in maritagium—&c. not barely cùm qualibet muliere.

Pag. 2. Of his Answer to my two Books.

Here he saith, I tell him that I have proved Geva to be a Bastard out of an Historian Contemporary; by which Ordericus Vitalis is meant, [Page 3]and yet Ordericus saith no such thing.

My Reply.

'Tis true, I said so, and have proved it too: See my Answer to his Defence of Amicia, pag. 34, 35. for though he hath not these very words [Geva is a Bastard], yet by sure Consequence it follows out of the words of Ordericus, that she was a Bastard, which is all to one effect; and here is another trip of a fallacy in Sir Thomas.

Pag. 2. Of his Answer to my two Books.

1. Here he also saith, that I af­firm the Common Law is now al­tered otherwise than by Act of Par­liament, without quoting any Au­thor.

2. And also that I brag of seve­ral Precedents where Lands were given in free Marriage with Bastards; and yet I prove not these necessary words of liberum marita­gium [Page 4](as the Lord Cook calls them) were used in any of those grants, or that any of those Persons, with whom such Lands were given, were Bastards.

My Reply.

Here is another Trip of Sir Tho­mas; for I have quoted the Lord Cook himself in several Cases for it: See my Answer to his Defence of Amicia, pag. 23, 24, 25, 26. and yet he is not ashamed to say here, I quoted no Author for it: And I could yet produce a number of Cases more, wherein the Law is altered without any Act of Parlia­ment, if it were necessary.

2. To the Second: I produced those ancient precedents to show, that those words [in liberum mari­tagium] were not anciently so ne­cessary in grants of free Marriage, as the Lord Cook would now have them to be; and then Sir Thomas saith, that I have not proved any of those Persons with whom such Lands were given (in free Marri­age) [Page 5]were Bastards: Sit liber ju­dex, as to that of Geva: See also my former Reply, pag. 38. where Joan Princess of Wales is clearly proved to be a Bastard by the Te­stimony of most of our Historians; but none saying she was a lawful Daughter, and that she had Lands given her in free Marriage by King John her Father: See my Adver­tisement to the Reader, at the end of my two said Books; also my Addenda, pag. 3, 4. and my for­mer Reply, pag. 25.

Pag. 3. Of his Answer to my two Books.

Here he saith, I tell him Lewellyn Prince of North-Wales was Di­vorced from his Wife Joan, for which I can neither shew Author, nor Record:

My Reply.

I do not positively affirm it: the words in my former Reply, pag. 44. [Page 6]are these—if she were Re-married to Audley, anno 14. Hen. 3. then it is a sure Argument that she was Divorced; and whether she was so Married or no, 14. Hen. 3. let the Record Vouched by Vincent, be the Judge.

Here is another Trip of Sir Tho­mas; for he saith, that I can nei­ther shew Author, nor Record: in­deed Vincent doth not say she was Divorced; but he saith, she was Re-married to Audley; and so by consequence she must needs be Di­vorced, Lewellyn being then a­live.

But I have now published an Advertisement to the Reader at the end of my two said Books, where I have set forth the Copy of that Record; and do find that Vin­cent hath clearly mistaken the Re­cord; for it proves Robert de Aud­ley did Marry Joan, Daughter of Richard de Landâ, but nothing at all of any Marriage with Joan Princess of Wales.

Yet nothing hinders, but she [Page 7]might have been Divorced from Lewellyn, being taken in Adultery with William de Brews; and if Sir Thomas will allow the Note of Dr. Powel to be Authentical here­in, pag. 315. of his Notes upon the Welsh-History, Lewellyn had another Wife after Joan, called Eva, Daughter of Fouk de Breant, but had no Issue by her, as he saith; which could not be without a Di­vorce, unless we suppose Lewellyn Married after the death of Joan, for he survived not Joan above two or three years; and then we find him Diseased with the Palsey, and in a dying condition, anno 1237. See Mat. Paris, pag. 437. and therefore probably, if he were so Re-married at all, it was before that declining state of his: But yet I will not positively affirm that Joan was Divorced.

Pag. 3. Of his Answer ibidem.

Here he saith, I have a fine way of Answering; for if I be prest o­ver-much [Page 8]with any point of Law, then I will tell you of my own Au­thority, that the Law in such Par­ticulars is clearly altered, though I cannot tell how, nor at what time.

2. If it be a Record that puts me too hard to it, then I conceive the Roll from whence the Deed is written, is mistaken in such and such words, and miswrit therein from the Original.

3. If out of any History you tell me any thing which I cannot An­swer, then I will not suffer the words to be read as they ought to be Printed; but I will fansie such expressions as will best suit with my turn, and also disparage the same History, although in those matters I had formerly said I did chiefly follow the same.

My Reply.

These are all nothing but Cavils; and whence these proceed, every man may judge.

1. Where do I say the Law is al­tered [Page 9]on my own Authority, and do not prove it by other Authority? it is his mistake, and though I can­not tell when precisely, nor perhaps others neither, yet it is plain such particulars are altered, and such alterations are not made in a day, nor all at a time; for they must have a long time of common practice through the Nation, before it become a common Law; and at last becomes a Law by general con­sent and practice by degrees.

2. I never say the Roll is mista­ken, but where it is mistaken; and I remember not that I say any Roll or Record at all is mistaken, save either that of (Donarium) which I conceived was mis-writ for (Dota­rium); and it is ill chid of Sir Tho­mas (as we say Proverbially) when he himself conceives (Donarium) to be there mis-writ for (Dovarium) pag. 13. or else that of Bacon's Deed: See my Reasons in my Ad­denda, pag. 23. for rectification of which, I was promised a sight of the Original, but I could not ob­tain it.

3. The third is also a great mis­take: for first, I have not seen any thing out of any History alledged, but what I have fully answered, as to the point in difference; nor do I hinder any words to be read as they ought to be Printed; but when there be plain errours in the Print­ing, and so proved to be errours by comparing sundry other good Au­thors to the contrary, as (Hugh) Earl of Chester, for (Randle) Earl of Chester, in the Welsh History, sub anno 1142. why may not I ob­serve the errour which Sir Thomas would boulster up by an erroneous Amendment, to ground several o­ther gross errors and mistakes thereupon? It is most certainly a gross mistake either in the Printer or the Copy; and not mistaken for (Hugh, Son to the Earl of Chester), but for (Randle Earl of Chester):

And then to say I disparage the Welsh History, or Dr. Powel, is ano­ther mis-judging of me: all I said was this,—The Welsh History is not exactly composed throughout, [Page 11]nor proved by good Authority; and as I believe it true in many things, so it hath some grosse mistakes; and so are some of Dr. Powels Notes thereon full of errors, especially in his absurd Pedegree of the Earls of Chester, and in several other things: See my former Reply, pa. 94. And I believe every knowing man (who hath perused the same) will say as much: indeed there are few gene­ral Histories but may have some mistakes, and without disparage­ment too to the Author.

Certainly, here are three or four extraordinary Trips of Sir Thomas. Now there is nothing material here, further to be taken notice of, till we come to his nineth page.

Pag. 9. Of his Answer to my two Books.

Here Sir Thomas saith that I mis-recite his Argument; and that I say, that the Lord Cook saith those words [in liberum maritagium] are such words of art, and so necessarily [Page 12]required, as they cannot be (under­stood) by words equipollent: so hard it is to get Sir Peter either to repeat or understand aright.

My Reply.

Parturiunt montes, nascetur ri­diculus mus: He saith, it is a hard matter to get me repeat aright; but for the repeating of those very words of the Lord Cook; see Sir Tho­mas Manwarings Law-Cases mista­ken, pag. 3. pag. 10. and pag. 14. in all which places I have repeated them aright: So it is no hard matter to get me repeat aright; but here in­deed the word (understood) is mis-writ for (exprest) pag. 4. of my for­mer Reply; which shews it self to be a mistake in the writing; and the very sence here, would guide a man of reason into a rectification; but Sir Thomas will play at small game before he sit out.

And then he saith, I understand not aright: why so? Because I do not say—by words equipollent, or amounting to as much.

Oh profound and material point! as though equipollent, or amount­ing to as much, were not the same thing; or that there were more in the words (amounting to as much) than in the word (Equipollent): let him shew me the difference between them, if he can; save only one is a Lattin word, and the other English: so that when I had named the one, the other were not needful to be named.

Pag. 10. Of his Answer to my two Books.

Here he saith, I mistake very much, when I say—that Lands given in maritagium; Habendum libere & quiete ab omni servitio ver­sus Capitalem Dominum, de me & haeredibus meis,—&c. was a good grant in free Marriage, by the words of Glanvil in those Ages, and as good as in liberum maritagium): Why so? because Glanvil doth not there, or any where else, say that Lands may be given in free Marri­age [Page 14]by those, or any other equipol­lent words, without using the words [in liberum maritagium]: and unless he saith this, he saith no­thing for Sir Peter's purpose.

My Reply.

For this see pag. 54. of my for­mer Reply, where I have proved it out of Glanvils words by sure consequence, which Sir Thomas hath not yet answered: Sit Liber Index. Glanvil, lib. 7. cap. 18.

'Tis true, those very words here mentioned by Sir Thomas, are not in Glanvil; but Lands granted in maritagium, free from all Ser­vice, &c. (saith Glanvil) was a grant in free Marriage; and by sure consequence implyed there out of Glanvil, to be the words answer­able to the words (in liberum mari­tagium), which makes clearly for Sir Peter's purpose against Sir Tho­mas; for such a grant (saith Glan­vil) was a grant in free Marriage, without telling us that the words (in liberum maritagium) must be ne­cessarily [Page 15]used at all: So that Sir Tho­mas mistakes himself here very much, and not I.

Pag. 12, 13. Of his Answer to my two Books.

Here he writeth down Saher de Quencyes Deed, out of my Histori­cal Antiquities.

In which Deed (saith he, pag. 13.) if Donarium were there mis-writ­ten for (Doterium), it would not here signifie Marriage, but Dower; and he thinks also that the Tran­scriber probably did mistake (Do­narium) for Dovarium; the n and u being anciently written alike: but he saith also, he got a friend carefully to examine the same in one of the Couchir-books in the Dutchy Office in Grays-Inn, and the word is there Donarium, with­out any mistake at all.

My Reply.

It is true, I did intrepret in libe­rum Donarium in that Deed, as meant of a Jointure in my Historical Antiquities, pag. 132. but upon better consideration I conceived it might be more properly interpret­ed here, and understood for free-marriage; in my former Reply, pag. 7, 8. and in my Book, stiled Sir Thomas Manwarings Law-Cases Mistaken, pag. 29. for finding Dos sometimes anciently taken for Mar­riage, and finding the word (libe­rum) added here unto it, I did conjecture it might have been mis­written in my Copy in liberum Do­narium, for in liberum Dotarium: and so all one as to have said in liberum maritagium; and the rather for that we find very rarely the word in liberum donarium so applyed; nor do we usually say Lands are given in free Joynture, but in free Marriage.

But now it being in the Couchir-book in liberum Donarium without mistake, as Sir Thomas tells us, he got a Friend to examine it, it must needs be here interpreted for a free gift: for Saher de Quency Earl of Winchester, grants to Robert de Quency his Son and Heir four Man­nours, ad dandum in liberum Do­narium Hawisiae Sorori Comitis Cestriae, uxori ejusdem Roberti. This was soon after the Marriage; for she was now the Wife of Robert, and these Lands were given for a free gift to Hawise his Wife, which is all one as to have said for a free gift in Marriage to Hawise; and a free gift in Marriage, is all one as a gift in Free-marriage: add here­unto, that those four Mannors, given in liberum donarium, as afore­said, accrewed to the Heires of Hawise, to wit, to John Lacy, Earl of Lincoln, in right of Margaret his Wife, Daughter and Heir of the said Robert Quency & Hawise: which by Law ought to descend up­on the Heirs of Hawise, being given [Page 18]in free marriage: Whereunto also Roger de Quency (who succeeded Earl of Winchester, upon the death of the aforesaid Robert de Quency, his Elder Brother without Issue Male) released all his Right unto the Heirs of the said Margaret: See my Historical Antiquities, pag. 271. whereas had those Lands been given to Hawise in Dower or Joyn­ture only, she could but have en­joyed them for her self, and not to her Heirs.

But whether is the more proper interpretation thereof in this place, let Learned men judge; I will not contend about it. Yet whereas pag. 15. Sir Thomas would have the Reader to judge of my Integrity, because I did formerly interpret the words aforesaid to be understood of a Joynture, and now upon more serious deliberation conceive the same to be meant for a gift in free-marriage, or a free gift in marri­age, having the word liberum joyn­ed with it: I say it is hard to cen­sure my integrity for it: for that is [Page 19]well known to all the County where we both do live; I shall make no comparisons, for those are odious, and savor of arrogancy.

Again, Sir Thomas hath com­mitted another Trip, pag. 10. where he expoundeth Mr. Glanvils words (when he speaketh of gifts in frank-marriage) cum aliquâ mulie­re, to be meant [with some wo­man]: which words he misinter­preteth altogether; for it is there meant [with any Woman] not with some Woman: He hath the same errour in his Reply to my An­swer, pag. 40,

Pag. 16, 17. Of his Answer to my two Books.

Here he saith, I tell him how he proves by comparing the Age of Bertred, that Agatha could not be the Daughter of the Second William de Ferrare; wherein (saith he) I am pittifully mistaken, for he did goe about no such thing; but he did shew pag. 3, 4, 5. that Joane, Wife [Page 20]of Lewellyn could not be the same Joan which King John had by A­gatha.

My Reply.

O pretty Subterfuge! hath he a­ny proof at all here, that Joan, Wife of Lewellyn was not the same Joan which King John had by A­gatha; but all his proof there bot­tomed on the Age of Bertred, which could not allow Agatha to be the Daughter of the Second Willi­am de Ferrars by Bertred's Daugh­ter; so as to suppose Agatha to be old enough to have Issue that Joan by King John, and that Joan to be old enough to be Wife of Lewel­lyn, Anno. 1204. which is a false ground taken from Vincent: but Speed saith, Agatha was Daughter of Robert de Ferrars, and I agree Vincent to be mistaken therein: Let me see him prove the Princess of Wales to be no Daughter of Aga­tha by King John; what he saith here, is nothing to the purpose: See my former Reply, p. 18.

Pag. 22. Of his Answer to my two Books.

Here (after a long Oration, no­thing at all material) he tells us— would any man think Sir Peter him­self within a very few lines would be guilty of the like offence, which I unjustly charged him withal? and a little after—Sir Peter would di­stinguish between maritagium, and maritagium Servitio obnoxium; and say maritagium is two-fold, but doth not give the members of his distinction aright.

My Reply.

Here are two great Trips more of Sir Thomas, for I did neither charge him unjustly with that di­stinction, which any man may read in his book, nor am I guilty of the like offence, as he saith I am: Shew me, if he can, where I go a­bout any such a distinction as he here mentioneth, or say marriage [Page 22]is two-fold, and then give the members of my distinction so ab­surdly as he there hath done; I wonder he is so disingenious either to deny the one or affirm the other: See his Answer to my Addenda, pag. 7. and my former Reply there­unto, pag. 20, 21. I appeal to all Readers; and yet in the 19th. pag. of this Answer to my two books, he tells us, it is the want of my under­standing which causeth me to blame him for what he there so saith, and then runs on in a long harangue to no purpose, telling us that maritagium Servitio obnoxium is the Elder Brother—&c.

Pag. 24. Of his Answer to my two Books.

Here he saith, that I indeed do tell him that those Mannors (Budi­ford & Suttehele) were given to the said Lewellyn in libero maritagio: But the Deed lately belonging to Somerford Oldfield Esquire, doth prove no such thing, but doth only [Page 23]prove that the said Lewellyn did mistake himself, and did think that they were given him in free-marri­age, when they were not so given.

My Reply.

Oh fine, a pretty Answer indeed! for though in the Deed it be said— Sicut Dominus Johannes Rex ea illi dedit in libero maritagio] yet here (saith Sir Thomas) Lewellyn mis­takes himself, and thought it was so given, when it was not: it is not in the Deed (mihi dedit) but (illi dedit), and by consequence could not be mistaken by Lewellyn only, if it were mistaken; but by all o­thers also then present, and especi­ally by the Writer of the said Deed: But whether was Lewellyn, and the Clerk that made the Deed, and all others then present, more like to know the truth hereof, then Sir Thomas now living 450. years after that Deed made: Every man may see the weakness of this Answer. Sure this may stand for a [Page 24]Trip with a derry-down, but he hath so many of them, that I shall forget to count them all. Ere while pag. 3. when I am put hard to it, (saith he) then I say the Roll is mis-writ: Very well; but here he denys the very words of the Deed, and avers against a Record, and yet gives no reason for it neither.

What follows pag. 26, 27, 28, 29. are all tedious things accor­ding to his custom, and little or no­thing to the point.

But pag. 26. and in other places else-where, when any thing is said by him, either not true, or not to the point, then it is my ignorance that runs me upon mistakes, that I cannot fathom what he or the Lawyers do say.

1. He saith, pag. 26. that if a man have Land given in free marri­age with a Wife, he hath only Custo­diam terrae cum uxore, and there­fore cannot dispose of those Lands to any Person from the right Heir.

2. So pag. 28, 29. he tell us that the Writ for the Livery of Budiford [Page 25]to Lewellyn runs in these words,— quod Johannes Rex ei dedit in ma­ritagium cum Johanna, &c. and (saith he) Livery would be need­less in a gift of free-marriage, and therefore concludes, it must be on­ly in maritagio given, not in libero maritagio; and so Lewellyn's Deed to John Scot is mistaken; and be it what it will, it will work nothing in this case.

My Reply.

1. To the first: For what he saith, that according to the ancient Lawyers in those elder Ages, that Lands given with a Wife in free-marriage to a man, the Husband hath only the custody of such Lands with his Wife, and therefore can­not dispose of any of those Lands to any person from the right Heir by such a Wife.

Yet we see here, that Lewellyn did grant away de facto to John the Scot, Budiford in free-marriage with Helen his Daughter, about [Page 26]1222. which Lands King John gave unto him in free-marriage, with Joan his Daughter, Mother of the said Helen, by what right we can­not now tell, whether by the con­sent of the right Heir by Joan, or other compensation else-where gi­ven; but certainly it was so given, and Helen was right Heir to her Mother Joan, after the death of David her Brother, without Issue.

2. To the second: As to the Writ of Livery concerning Budi­ford, running only in maritagium, it hinders nothing but that the grant to Lewellyn of Budiford might be in libero maritagio; as we see that of the Castle of Elles­mere, granted also to Lewellyn by King John, with his said Daughter Joan in libero maritagio, by express words: See the Deed at large in my Advertisement to the Reader, at the end of my Book, stiled Sir Thomas Manwarings Law-Cases Mistaken; and yet the Livery of Ellesmere saith only—quod dedimus dilecto filio nostro Lewelino in ma­ritagio [Page 27]filiae nostrae: See Sir Thomas Manwarings Answer to my Ad­denda, pag. 6. Now maritagio doth as well include free marriage, as not free-marriage, according as the Deed runneth.

Pag. 30. Of his Answer to my two Books.

Here he saith, he thinks he can make good what he said of my Par­tiality (which yet he will not speak publickly) and that I will not be excused by that contradiction of mine; to wit, That admit I were never so much partial in what he chargeth me with (yet I hope what I have written, he finds it impartial to all, so far as I go or know) would this cure his uncivil expressions to­wards me in another thing? but he leaves out these last words of mine.

My Reply.

Let him find out a contradiction here if he can; but all his shifts and cavils cannot prevail to cover the truth concerning Amicia, and which with all his art he cannot so­lidly refute. So having done with this Trip, I proceed to the rest.

Pag. 32, 33. Of his Answer to my two Books.

Now he would fain justifie a for­mer error of his, and shews me a Deed out of my own Book, pag. 143. (from which Book he fetcheth ma­ny things, but nothing will help his cause) In which Deed, Randal, Duke of Brittain, & Earl of Chester granted to Andrew, Son of Mabil, & to his Heirs, sundry liberties, &c. among which, it is there said—nec de querelâ aliquiâ in civitate Cestriae, vel extrâ, respondeant in praesentiâ meâ, vel summi, Justitiae mei: * up­on which he puts in the Margent a [Page 29]special mark thus (* Note): and after he saith, Now let any Person judge whether there was not a chief Justice of Chester in those Elder Ages.

But before pag. 32. he tells us most learnedly, that the word Justi­tia here, is of the Masculine Gen­der, and gives us a rule out of the Grammer for it—

Mascula nomina in a dicuntur multa Virorum, and was sometimes in those Elder Ages used for the Judge or Justice of Chester, which he believes I cannot deny.

My Reply.

No indeed, I cannot deny it; but why used for the Judge or Justice of Chester, more than other Judges in those Ages? Surely it was Anciently used for any of our Judges: Glanvil mentioning the form of Original Writs, hath it thus—quod sit coram me vel Justi­tiis meis: So also Hoveden, and o­ther of our ancient Historians used [Page 30] Capitalis Justitia Angliae for the chief Justice of England: But Bracton compiling a Book of the body of our Law in Latin, under King Henry the third, he changed the word (Justitiis) into (Justi­ciariis); and setteth down the writs accordingly—coram Justi­ciariis nostris: Since which time, in all Writs and Commissions upon Record, they have been stiled Justi­tiarij: Lamberds Eirenarcha, lib. 1. cap. 1.

And then for his profound Ob­servation, that Justitia is here of the Masculine Gender, according to the Rule—

Mascula nomina in (a) dicuntur multa virorum. Yet he hath left out three or four of the next words following, which might fitly have been added to that book of his— Ut scriba, assecla, scurra, & rabula. But now for the words of the Deed: It is certain, that here Earl Randle calls the Judge of Chester— my chef Justice; and the words of the Deed before-mentioned, I con­ceive [Page 31]runs thus in English—That the said Andrew and his Heirs should not Answer concerning any Suit (or Complaint) entered in the City of Chester, or without, ei­ther in my presence, or in the pre­sence of my chief Justice.

And it is a rare precedent (with­out a Parallel, I believe in this kind) that the Earl here calleth him— my chief Justice; undoubtedly for some reason here intended, and but accidentally neither; possibly in distinction from the Judges of his inferiour Courts: for certainly they were never called chief Justices of Chester in those Ages by common appellation, as at this day they be called; neither then were there more Judges of Chester than one at a time, nor doth this example prove it otherwise, nor is the Judge here stiled—Chief Justice of Chester; only the Earl here calls him—my Chief Justice, speaking as it were in his own person; nor will this at all excuse the errour and vain glory of Sir Thomas, speaking [Page 32]so of Rafe Manwaring, and call­ing him as at this day we call the Senior Judge of Chester; it was a Trip, it overslipt him; but he will seldom acknowledge any errour.

Again, This Deed was made be­tween the year 1188. and 1200. for all that while Randle, Earl of Chester assumed the Title of Duke of Little-Brittain in France, which Title we see he had given to him in this Deed: But it cannot be firm­ly collected that Ralf Manwaring was Judge of Chester at that very time when this Deed was made; for he is there subscribed by the name of Ralf Manwaring only, not stiled Radulfo Manwaring Justici­ario Cestriae there, as he is in many other Deeds, and as he and all o­thers were usually stiled, while they were Judges; and what Sir Thomas would stretch to have it so out of my Historical Antiquities, it will not certainly follow out of my Notes, that Ralf Manwaring was Judge of Chester all that time, from 1188. till Philip Orreby was Judge there; [Page 33]nor especially all the time, while Randle was Duke of Brittain; and therefore Sir Thomas cannot cer­tainly conclude (as he doth, pag. 34.) that Rafe Manwaring was Judge at that very time, when that Deed was made.

Pag. 35. to pag. 41. are things not worthy my taking notice of, nor pertinent to the main point, and have all formerly in my other books been Answered by me over and over again, and therefore I shall here pass them by; although, if I would cavil (as Sir Thomas doth) at eve­ry pidling thing, I could find many errors therein.

Pag. 43. Of his Answer to my two Books.

Here he saith, he is very confi­dent Sir Peter cannot prove, that persons who were under age, did then use to joyn with their Mothers, and to give away their Lands of Inheritance.

2. And then after a long ha­rangue, and writing down of Mr. Sel­den's words, which I had before cited, he saith pag. 45. (which is all the Answer he gives to my Pre­cedent that is material) that Earl Richard confirmed the Hyde of Land which Droco de Andeleia had given to Abbington-Church; and a little after, addeth—what is this to the Case of Hugh Cyvelios, who did pass away Stivinghale to the Bishop of Chester, and his Suc­cessors for ever?

My Reply.

I say it is the very self-same Case, one as the other: for Earl Richard, and Earl Hugh do both joyn with their respective Mothers, both un­der Age; but now forsooth the dif­ference he would put is this, that the one confirms another man's grant, the other grants away certain Lands for ever I would fain know if a grant of Lands for ever by one under Age, and joyning with his [Page 35]Mother, be invalid; why a confir­mation of Lands, by one under age also, and joyning with his Mother, would not be invalid likewise; but this confirmation of Lands for ever held firm, and the Lands continued to the Church of Abbington accor­dingly.

So we see how he doubts not but what is there said, will give all men satisfaction, without rendring any Reason at all of the difference in those two Cases.

And I am very confident Earl Hugh could not be twelve years old when he joyned with his Mother in the Grant of Stivinghale; and if the grant were made about the year 1156. to wit, about two or three years after his Fathers death, I ra­ther think that Earl Hugh was not above eight years old when he joyn­ed in that Grant.

But certainly Sir Thomas is far wide when he saith, pag. 45. that Earl Hugh was old enough to take Melyeneth-Castle, anno. 1142. or that he was 23. years old, Anno. [Page 36]1153. in which year his Father dy­ed: most absurd, and without any ground at all.

But since I writ this second Re­ply, I have received a sure Record that proves Earl Hugh could not be above three or four years old at the death of his Father, Anno 1153. and will lay asleep for ever all those false suppositions of Earl Hugh's Age; whereof see more in my Pe­roratio ad Lectorem, at the end of this my second Reply.

Pag. 46. Of his Answer to my two Books.

Here he tells the Reader, that I gave him a Pedegree of the Barons de Monte alto: In which I make the first Robert de Monte alto (who I said lived in King Stephen's time) to have Issue, two Sons, Rafe and Robert, who were afterwards suc­cessively Stewards of Cheshire; all which (saith he) is certainly true: [I could wish he would as ingeni­ously confess all other truths al­ledged [Page 37]by me]; and then he writ­eth out a Deed of Hugh Cyvelioc, Earl of Chester, out of my Histori­cal Antiquities; whereunto Rober­tus Dapifer de Monte-alto was a Witness.

1. And then pag. 48. he saith, this must needs be the first Robert de Monte-alto: and if this Deed of Earl Hugh was made immediately before the death of this Robert, then Earl Hugh was a great deal elder than his Wife Bertred: (why so?) For (saith he) though the said Ro­bert did live something longer than Sir Peter doth take notice of, yet he thinks it cannot be proved that he was living any considerable time after Eustace (who was Witness to the Grant of Stivinghale): and he knows no reason why we should conclude 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.

2. He saith, pag. 49. that he thinks it will appear that this Deed [Page 38]was made in King Stephen's time; for had it been made when Henry the Second was King, it would not have been here said—sicut fuit tempore Henrici Regis; but sicut fuit tempore Henrici Primi; or else here would have been some other words used, to distinguish King Henry the first from the then King.

Pag. 49. Now King Stephen dy­ing, 1154. and Bertred not born till 1157. it will from this Deed be clear, that if the said Hugh had sealed the other Deed immediate­ly before King Stephen dyed, yet Earl Hugh would be at the least 24. years older than Bertred his Wife.

My Reply.

Is not here a long Prose of his running all upon ifs and ands, with­out the least ground of truth?

1. To the first: I do remember that I have seen some proof that the first Robert de Monte-alto (as he calls him) was living 17. Stephani▪ [Page 39]what then? why should we con­clude (saith he) that Eustace was slain immediately after he was a Witness to the one Deed, or that Robert dyed presently after he was a Witness to this other Deed?

Is not here pittiful weak reasons to bottom on? we find Eustace slain Anno. 1157. So Stow, and other Historians: as to Robert de Monte­alto aforesaid, I conceive he sur­vived Hugh Cyvelioc: I have not yet seen any thing to induce me to think he dyed before Earl Hugh; and this Deed of Earl Hugh to the Nuns of Bolinton, I believe was made far in the Raign of King Hen­ry the Second, nor can he give any reason at all to the contrary, and we find not Rafe de Monte-alto a Wit­ness, till Randle Blundevil's time, and that must be either in King Ri­chard the First's Raign, or towards the very end of Henry the Second at soonest.

2. To the second: Let him prove this Deed to be made in King Ste­phen's time, and I will burn my [Page 40]book: as to his reason of distin­guishing of one King Henry from a­nother, how many times do we find mention of the Henrys in old Char­ters, without distinguishing at all? Somtimes they are distinguished, and sometimes not; but not adding the word of Henrici Regis nunc, shews clearly it is meant of Hen. 1.

3. To the third: As he proves nothing from the Deed, nor when it was made, so his ifs signifie nothing; for Earl Hugh was certainly a Child under age, when he joyned with his Mother in the Deed of Stiving­hale.

And his ifs are very pretty, if Earl Hugh made this Deed to the Nuns of Bolinton, immediately be­fore the death of Robert de Monte­alto aforesaid; and then you must take his other (if) too—if this Deed was made in King Ste­phen's time, and then you must take his third (if) too— if Robert de Monte-alto dyed soon after King Stephen: what then? why then [Page 41]Earl Hugh must be a great deal older, at least 24. years older than Bertred his Wife.

But if these (ifs) be all false sup­positions, and if Earl Hugh did make this Deed towards the middle of the Raign of Henry the Second, and if Robert de monte-alto out­lived Earl Hugh, (all which are more reasonable to imagine than the other ifs): what then? We may then conclude Earl Hugh was not near so much older than Bertred his Wife, as Sir Thomas would suppose him: See what stuff he here pro­duceth to prove nothing.

Pag. 49. Of his Answer to my two Books.

Here he saith, that whereas I pre­tend to have shewed that Earl Hugh could neither be so old as he would suppose him, nor yet that the said Earl was born in the year of Christ, 1142. Sir Thomas Answereth, that any man who can but count 20. to wit, how long it is from 1109. to [Page 42]1129. or from 1110. to 1130. if he looks on his Defence of Amicia, pag. 51. and on his Reply, pag. 61. may find that Hugh Cyvelioc might be older than he saith.

My Reply.

But whosoever views his Compu­tation in those places, will find the same very wilde: every supposition upon the utmost possibility; and as here, so there, he goes all upon (ifs), which cannot encline any judicious man to a belief; & here he concludes too, but upon a bare possibility, That Earl Hugh might be older than he now saith; that is, at least 24. years older than Bertred his Wife, which is certainly a great deceit of the Reader, to encline a belief that a thing is so, because it is possible to be so: Doth he any where prove substantially that Earl Hugh was so much older than his Wife, more than what may be very ordinary with other men in the like Case, or reasonably to suppose he had a for­mer [Page 43]Wife? Shew me that if he can: I am sure it cannot be proved; see my Answer to his defence of Ami­cia, pag. 48, 49. It appears clear­ly by the Record in the Exchequor at Westminster, that Earl Hugh was but six years older than Bertrey, or thereabout, which dasheth out all his Ifs for ever: See more hereof in my Peroratio ad Lectorem, at the end of this my second Reply.

Pag. 50. Of his Answer to my two Books.

Here he knocks me dead, and thinks now he proves Amicia no Bastard for certain,—for he doubts I am no good Arithmetician, be­cause in my Historical Antiquities, pag. 137. I said I was eight years older than my Wife, and he hath taken great pains to search out the difference of our Ages, and finds I am not much above six years older than my Wife.

My Reply.

It is true, I there said so, speak­ing cursorily and over-hastily with­out due examination; for I then conceived she had been born in the eighth year of my Age; but it ap­pears now she was born in the sea­venth year of my Age; so that I am by exact account only six years and two moneth, and about two weeks older than my Wife.

But what is all this to Amicia? The Reader may see how he makes it his business to catch and carp at every thing material or not mate­rial.

Pag. 51, to pag. 60. Of his Answer to my two Books.

In all this, there is little or no­thing material to the main point; but he spends much time in compa­ring sundry ancient Authors, to shew that Matthew Paris is mis­printed in the place urged by me [Page 45](to wit, in the Edition put out by Doctor Wats, 1640. pag. 79.) where he saith (William) Mandeveyle was taken Prisoner at Saint Albons, sub anno. 1142. for (Geffrey) Mandeveyle.

My Reply.

I will never excuse an errour, nor deny a truth: I would I could say as much of Sir Thomas: indeed it is much that this very word should be mis-printed above other words in Matthew Paris: I believe neither Sir Thomas, nor any other scarcely, upon such an accidental business could have suspected it to be so, having lighted upon the place by chance, else I should have made a stricter enquiry; but it had reason to put him upon an enquiry.

Yet where he saith, pag. 59. that I dealt deceitfully herein, and that I did it purposely: This is another Trip of Sir Thomas; for had I then known it to be mis-printed, I would [Page 46]never have urged it, at least without a Note upon it.

However the mis-printing of (Hugh) Earl of Chester for (Randle) in the Welsh History, pag. 197. holds firm for ever: and Sir Thomas confesseth it mis-printed in this his Answer, pag. 52. very pro­bably in the latter Copies, the let­ter (R) standing for a word in the Original book, might be mis-writ­ten (♄) in the Copy; which was supposed to be Hugh, or else for certain the Original was mistaken.

But for all this, Sir Thomas is so far from an ingenious Confession herein, that he will justifie his ab­surd errour of computing Earl Hugh to be 41. years old when he married Bertred; & this he grounds upon the Errata at the end of Do­ctor Powels Notes on the Welsh-History aforesaid, where it is said, we must read—pag. 197. line 16. Hugh Son to the Earl of Chester.

Which amendment is certainly as far from the truth, as that alrea­dy Printed, and it is very question­able [Page 47]whether the said Earl Hugh e­ver lived to be 40. years old, for he dyed Anno Domini, 1181. and sup­pose we, that he was eight years old when his Father dyed Scilicet, 1153. (which I believe is as much as by reasonable account any indifferent person can well judge him so to be) yet would Earl Hugh be but 36. years old when he dyed, Anno sci­licet 1181. and if he were twelve years old at the death of his Father (which I am confident can never be proved by good Authority) yet would Earl Hugh be but 40. years old when he dyed: See what a shift Sir Thomas would now make, but to suppose Earl Hugh to have a former Wife, which certainly he never had; but it appears now by a Record, that he dyed about the Age of 32.

Again, Sir Thomas saith, pag. 51. that I go about to disparage Doctor Powel all I can, and that I will not suffer the Wesh History to be read, as it should have been Printed; as also pag. 52. that I will now dispa­rage the said History, although in [Page 48]my Historical Antiquities touching the Kings of Wales, I did chiefly follow the same:

This is another unkind reflecti­on: Sit liber Judex, See page ioii. supra. pag. 94. of my former Reply; my words are these—As I believe it [that is the Welsh-History] to be true in many things, so it hath also some gross mistakes; nor is it at all proved by good Authority, or ex­actly composed through out; nor shall you therein from the begin­ning find all the Wives, Children, and Bastards of the Ancient Kings and Princes of Wales clearly Re­corded; and so are Doctor Powels Notes thereon full of Errors, and especially in his absurd Pedegree of the Earls of Chester, and in several other things.

Here is nothing but what every knowing man (who doth seriously peruse the same) will acknowledg to be true; and some mistakes may be, and are in the writings of very Learned men, and yet no great [Page 49]disparagement neither: and I do confess also, that I followed the Welsh-History in the Princes of Wales, for I had no better, nor o­ther to follow.

Pag. 60. Of his Answer to my two Books.

Having now concluded his An­swer to my former Book, he tells us that in my Latine Epistle to the Judges (which he supposeth to be mine, though I vouchsafe not to set mine name thereto) I said he was the first Instigator of this Con­troversie; but whether that be so or [...]o, he refers the Reader to his E­pistle before his Defence of Amicia, and to the second and third pages of his Reply.

My Reply.

But what Sir Thomas saith there, was not the first time of this Con­troversie between us: For he saith in that Epistle, that if I would have [Page 50]delivered what I did conceit about Amicia, as an uncertainty only, then I knew he would have rested sa­tisfied with the judgment of those many knowing persons, who dis­sented from me in opinion there­in.

But this was a little before my Historical Antiquities were Printed; nay he came to Tabley About 1672. also, purposely to de­sire me (hearing then that my Book was about to be Printed) that I would put A­micia under the Title of the doubt­ful Issue of Earl Hugh; when I told him that I thought it not sit to put down in my book any such third title of doubtful Issue, for she must certainly be either lawful or unlaw­ful, which method I had observed in the rest. I told him also that it was not at all doubtful unto me, for in my judgment she was certainly a Bastard: And then he said, if I did place her under the unlawful Issue of Earl Hugh, he would write a­gainst it, which afterwards he did [Page 51]and I believe it had been as good to have let it alone.

But before this, 1664 Also 1672. we had long entercourse (some years before) by Papers be­tween us upon this Contro­versie, which Papers I have yet by me; and which (when my book was in Printing) he desired I would not print any of them without his consent, and I promised I would not, and I kept my word with him; and had it not been for those pas­sages betwixt us, I had not said near so much of it in my book as I did, and so much for this. See my An­swer to the Defence of Amicia, pag. 3.

Pag. 60. Of his Answer to my two Books.

He tells us also in the same page, that I do not put the question of Law aright; but the point must be otherwaies proved then by such a frivolous question as mine is.

My Reply.

I am sure I know not how to put it clearer to the point; videlicet, whether Lands in those Ages might not by the ancient Law be given in free-marriage with Bastards? for Sir Thomas saith, the Deed of Ser­vices in frank-marriage with Amice, proves she was no Bastard, because (saith he) the Law will not allow such a grant with a Bastard: I say, though at this day the Law will not allow it, yet it would then allow such a grant in the Age when Amicia lived, as the Law as then taken: must not now the question be— whether the Law in those Ages would so allow it, or no?

And yet it is no sure Argument to prove Amice no Bastard, though the Law should not then allow such a grant; as to argue thus— Amice had Lands given with her in libero maritagio, ergo, Amice was no Bastard, for many irregular Deeds may sometimes pass, which in strict­ness [Page 53]of Law might not prove au­thentical: But I conceive the Law in those elder Ages would and did allow such grants; and we plainly see he waves the question, and will not abide the test; and it may sup­pose too, that the Opinions of some Lawyers (which he brags on in his books) were procured by putting off a wrong Case.

I will also agree with him to put the other Case to the Judges, as he would have it put; videlicet, whe­ther the Law be not now altered in this and sundry other particulars, from what it was in elder Ages, and that without any Act of Parliament? for otherwise Lands would now pass with Bastards legally in libero maritagio.

Pag. 61. Of his Answer to my two Books.

Here the saith, that if I had been so conversant in Divinity, as I would have the Judges to believe, it seems strange to Sir Thomas that [Page 54] I had not learned by duty better to my deceased Grand-mother; for we are bound to Honour all our Pa­rents, mediate or immediate, living or dead; and so compares my wri­tings of these books to the wicked act of Cham in the Scripture, who divulged the shame of his Parent.

My Reply.

In the first place, let me observe to the Reader, that this is he who oft blameth me for mis­repeating, and yet runs into the same errour himself, and tells us here, that I would have the Judges to believe that I am much conver­sant in Divinity; let him shew me where I say so, if he can, or that I make, or say, that I am conversant in Divinity; my words are—I pre­fer Divinity above all other Stu­dies; this is far from saying, I am conversant in Divinity.

In the next place, this act of mine cannot by any rational man be said to be like that of Cham, for he re­vera, [Page 55]saw his Fathers Nakedness, and did not cover it, but told his Brethren without: now I could not see my said Grand-mother's naked­ness in that sence, who dyed above 450. years agoe; nor will any man say, but himself, that I have utter­ed any scornful or disgraceful words at all against her.

Expositors on the Fifth Comman­dement, tell us, it includes in it the honouring of Kings and all in Au­thority over us, as well as our natu­ral Parents, to whom we owe ho­nour and reverence in like man­ner.

And tell me, vvere ever any of those vvorthy Persons or Historians, vvho have commemorated the Wises and Concubines, Children and Bastards of our Kings of Eng­land in their Histories, ever tearm­ed Chams for the same? Nay, doth not Moses himself, in his History of Genesis, chap. 38. Record the Whoredom of Judah (who was great Uncle to the Father of Moses) with Thamar, his Daughter in Law, [Page 56]and also her Bastard-Twinns, Pha­res and Zarah? Nay, are not these Twinns reckoned up in the sacred Genealogy, Matthew, Chap. 1.

How many great and most ho­nourable Families have been de­scended from Bastards, Kings, Dukes, Earls, and others?

I have heard that King James used to say, it vvas a good Family that had neither Whore nor Thief a Kin to it: I am sure it is a rare Family that never had any Bastard.

But Sir Thomas saith, that in some respects I have exceeeded that Pattern of Cham, pag. 62. though I have done nothing at all like that Act of Cham; I am sure he is Kim-Kam from the point, but he forgets his ovvn duty, as to revilings, 1 Cor. 6.10. and follovvs not the Pattern of Michael the Arch angel, vvho durst not take up a railing ac­cusation against the vvorst of Anta­gonists, Jude vers. 9. and so much for the Case of Divinity, vvhich he mistakes as vvell as his Lavv. It is [Page 57]as Lawful for any Historian to Re­cord the Bastards, as Lawful Chil­dren: It is an error not to do it.

Pag. 62. Of his Answer to my two Books.

1. Here he saith, that in the se­cond book which I direct to all the Judges of England, it so falls out that there is nothing therein, but what is in my former books, and is already Answered; though if there had, he should not have presumed to have given any Answer thereto, because those learned Persons know well enough what the Law was and is, in all particulars.

2. How-ever he cannot but ob­serve how slightly I speak of the Lord Cook in my 48. page.

3. And also, how I have such light expressions in my book direct­ed to the Judges, as he believes were never used before by any Per­son of discretion to such Reverend and Learned men; no wonder therefore if I speak coursely of him, [Page 58]and tell him of so many impertinen­cies.

My Reply.

1. To the first, I believe there is something in that Second book, which is not in my former books, nor yet answered by him; and though the Learned Judges know what the Law was and is, better than either of us; yet we may with modesty offer what we conceive is right to their more grave judg­ments; but it is a good excuse.

2. To the second, I do not speak slightly of the Lord Cook in my 48. page, nor any where else; my words there are these,—As for the Lord Cooks citing of Bracton or Glanvil, in the Margent, as Authority, for what he there saith, if he maketh a false quotation, or such, as is not to the point, neither I nor any man [...] else are bound to believe the Lord Cook more than any other.

So let the Reader judge whether this be not another Trip.

3. To the third: I conceive I I have no such light expressions that might not be used to our light Con­troversie, or before Learned Judges, nor yet such as were never before used by any person of discretion, as he alledgeth: he might have done well to have shewed what those expressions were; but per­haps, if they had been used by such a discreet Person as himself, then they would not have been account­ed light expressions, but rather plain to the Point, not rude at all.

Pag. 63. Of his Answer to my two Books.

He saith here in the very Con­clusion of his book—whether he be guilty of those [Impertinencies] or untruths, or of that opprobrious Language which I do charge him with, let the indifferent Reader be judge; and whereas it appears that I am resolved to have the last word, though I have nothing new to say; and that my writing again [Page 60]be contrary both to my duty to my Deceased Grand-mother, and to my promise in Print: He declares that if what I shall write hereafter be no more to the purpose than what I have said in those two last books, that he will not appear in Print a­gainst me any more.

My Reply.

To all which I say, that I do not know that I have any where at all charged him either with Imperti­nencies or Untruths, but what are so charged justly by me, that I can suddenly call to remembrance.

And for opprobrious Language (wherein this last Answer of his far exceeds.) I have only this to add for my self, that in my Answer to his Defence of Amicia, I think no man can shew me any one uncivil expression in the whole book; but afterwards, when he had in his fol­lowing books taxed me unjustly in many things, and carped at every thing in mine, Pertinent or Imperti­nent, [Page 61] I confess I was more severe in my expressions in my latter books, but he led the way; what I have said, was but in vindication of my self, for my Reputation is as dear to me as his can be to him; and though my expressions sometimes may seem tart, yet not so oppro­brious neither as he makes them; had he kept close to the point, and avoided his Calumnies and Cavils, and confest his Errors more ingeniously throughout, I should neither have had occasion to retort, nor have Answered to them.

And what I have written above my first intention, he hath forced me thereunto.

But now he will appear no more in Print against me, if what I shall write hereafter be no more to the purpose than what I have said in those two last books.

Whereunto I say, that for cer­tain there is so much already said [Page 62]to the purpose in them, as is not yet solidly and substantially an­swered by him; and herein I sub­mit my self to all Ingenious Rea­ders.

Mobberley, May 28, 1675.

PERORATIO AD LECTOREM.

SInce I writ this Second Reply, I am credibly informed that Sir Thomas did write to some of his Friends about May or June, Anno Domini, 1675. to this or the like effect.—

I hope now the Contest between Sir Peter and me will be at end; for Mr. Dugdale, in his Baronage of England, page 41. hath delivered his Opinion on my side: and Sir Peter having appealed to the Judges, Mr. Dugdale thereupon did move them in the Case; and they upon [Page 64]mature debate determined that A­micia was no Bastard. I have seen his last Sheet, which I have Answer­ed, but shall not yet Print it.

1. This Letter was shewed up and down Chester, purposely to de­lude the easie multitude; for since he cannot demonstrate or support the legitimacy of Amitia, either by good Reason or Authority, Sir. Tho­mas used this secret practice to gain a belief of his Cause, as supported by Opinions; whereas in truth there is no such thing as a mature debate by our Reverend Judges in the Case of Amicia; for as yet the Case in Law is not agreed upon by both sides, how then can there be a ma­ture debate, or determination of the Controversie? for Sir Thomas faith in his Answer to my two books, pag. 61. that the point must be o­therwise proved than by such a fri­volous question as mine is; and a little before pag. 60. he saith that in the Epistle Dedicatory, wherein I appeal to the Judges, I do not put [Page 65]the question aright; whereas there can be no other point of Law to be resolved as to the Controversie in hand, but this,—Whether Lands in those elder Ages might, and did Lawfully pass with Bastards in libe­ro maritagio, or no? That they might, and did so pass, I have be­fore in my other Books clearly proved as well by the very words of Glanvil himself, and the Law then no where disallowing the same; as also by three sure Prece­dents of those Ages.

But because Sir Thomas takes this upon trust from Mr. Dugdale, I shall here in publick unmask that Letter more fully, to the unde­ceiving of all men.

2. As to the Opinion of Mr. Dug­dale, it is true, he hath delivered his opinion for the Legitimacy of Amicia, in his Book of the Baronage of England, newly Published, Tom. 1. pag. 41. And it is no more than what Sir Thomas formerly told us in his books, That he was of that judgment before he published his [Page 66]said book of the Baronage: What then? many very wife and knowing men have declared their Opinions with me, that she was a Bastard; both Divines and Lawyers, and o­ther grave and understanding men; but I shall examine these things more particularly.

3. And in the first place, I shall always desire to be understood without the least detraction from the honour and due praise of Mr. Dugdale, of whom I have ever had a good esteem, as a most diligent and indefatigable searcher of the Records and Antiquities of our Na­tion: Sed Bernardus non videt om­nia; nor should I now have men­tioned him at all for his opinion herein, but that Sir Thomas Man­waring brings him here upon the Stage.

Only we may by the way take notice, that some years agoe Mr. Dugdale did draw up Sir Thomas Manwaring's Pedegree; wherein he puts Amicia, the Wife of Rafe Manwaring, without her due di­stinction [Page 67](as I conceive) of a Ba­stard, and is therefore the more concerned to stickle for Sir Thomas in this Contest between us: So that formerly he consulted some Law­yers for their Opinions in this Case of History; for whether Bastard or no Bastard hath nothing of Law in the Case, or whether Hugh Cyve­lioc Earl of Chester, had any former or other Wife besides Bertra? these are questions to be resolved by History, Records, and Reason; but Mr. Dugdale would now sup­port his opinion with a point of Law, and therefore moved some Lawyers for their opinions; but how the Case was stated, no body but himself knows, nor what the point of Law was, wherein they delivered their opinions: and me­thinks it argued some doubt within his own breast, that she was a Bastard; otherwayes why should he consult any Lawyers in the case: and in truth, let the Law be what it will, she was certainly a Bastard, which to my poor reason, is as plain [Page 68]as the Sun when it shines; but it seems he was satisfied with the O­pinions of those Lawyers, that she was Legitimate, because (saith he) it is a known Maxime in the Lavv, that nothing can be given in Frank­marriage to a Bastard: but this Maxime is to be understood vvith a due distinction of the times and ages, othervvise it will fail; but I shall anon speak more of this, and of his moving the Judges in the Case; wherein I should be glad to see vvhat Case he put, and the resolu­tions of our Reverend Judges thereon, under their hands; in the mean time I shall go on with Mr. Dugdale's Opinion, whereon Sir Thomas so much depends.

4, In his said Book of the Baro­nage of England, pag. 34. b. he calls Robert and Ottiwel, two Ille­gitimate Sons of Hugh (Sirnamed Lupus) Earl of Chester; wherein he is to be commended for speak­ing out, for so they were without all doubt: Hovvbeit, I find not any Author hitherto, vvho have Writ­ten [Page 69]of our ancient Earles of Chester, Commemorating either these, or any other at all, as Bastards, to any of our ancient Earls of Chester; neither Brooks in his Catalogue of Nobility, nor Vincent in his Gor­rections of Brook, nor Milles in his Catalogue of Honour, nor Fern in his Lacyes-Nobility, nor Powel in his Notes on the Welsh-History, pag. 294. nor yet Mr. Dugdale himself, in his Warwick-shire; till here in his late book of the Baronage, he now speaks out a little more.

5. But yet in the same page, he calls Geva (Daughter of Hugh Lu­pus, and Wife of Geffry Ridel) a Legitimate Daughter not to be doubted of, because she had Dray­ton-Basset given her in Free-Marri­age by her Father, which could not have been so bestowed on a Bastard, as our Learned Lawyers do clearly affirm; thus Mr. Dug­dale.

Which very Deed of Drayton-Basset to Geva, I have produced in my Historical Antiquities, pag. [Page 70]112. 113. as a sure Precedent that Lands did pass with Bastards in Free-marriage in those more anci­ent Ages, as well as with lawful Daughters; and have fully proved Geva to be a Bastard out of an Historian of good Credit, and Con­temporary with Geva, by sure Con­sequence out of his words: See my Answer to the Defence of Amicia, pag. 33. to pag. 47. which Reasons and Authorities are not yet solidly or rationally Answered by any, and which I shall have occasion further to mention, when I come to the Case of Amicia truly stated.

And here by the way, we may take notice, that these two Stick­lers for Geva, Sir Thomas Manwa­ring, and Mr. Dugdale, agree not in their points of Law; for Sir Tho­mas will not have these words (in libero Conjugio) used in the Deed of Drayton, to be good in Law, to make it a gift in Free-marriage, and only to convey but an Estate for life unto Geva; because the Lord Cook affirms that a gift in Free-marriage [Page 71]must be strictly tyed up to the words (in libero maritagio) and no other: See more of this in my first Reply to Sir Thomas, pag. 4. to pag. 15.

But Mr. Dugdale and his Law­yers take the words (in libero Con­jugio) in the Deed of Drayton, to be a good gift in Free-marriage; and so without doubt it was, and in those Ages as good as in libero maritagio; and did convey an E­state of Inheritance to the Heirs of Geva, who enjoyed Drayton ac­cordingly.

So we see Sir Thomas and the Lord Cook are of one Opinion, and Mr. Dugdale and his Lawyers are of another opinion; both of them against the Bastardy of Geva, which yet is clearly collected by sure con­sequence out of Ordericus an Histo­rian, of very good Credit, and contemporary with Geva, who knew the truth better than any man now living can possibly know, and needeth no point of Law to prove the same, and cannot be dis­proved [Page 72]by any point of Law what­soever.

6. As to Amicia, he hath these words in his said Book of the Ba­ronage, pag. 41.—That she was Daughter of Earl Hugh—

1. It sufficiently appears, not only from the grant of two Knights Fees with her in Frank-marriage, to Rafe de Mesnilwarin, where he so termeth her, but by another Deed of Roger de Mesnilwarin, her Son, wherein he calls Randle, Earl of Chester, his Uncle, who was Son of the said Earl Hugh.

2. As to her Legitimacy, I do not well understand how there can be any question, it being a known Maxime in Law, that nothing can be given in Frank-marriage to a Bastard.

3. The point being then thus briefly cleared, I shall not need to raise further Arguments from Pro­babilities to back it, then to desire it may be observed that Bertra (whom I conclude to be a second Wife) was Married unto him when [Page 73]he was in years, and she her self ve­ry young: So that he having been Earl no less than 28. years, it must necessarily follow that this Bertra was not born till four years after he came to the Earldome; nor is it a­ny marvel he should then take such a young Wife, having at that time no Issue-male to succeed him in this his great Inheritance: thus Mr. Dugdale.

1. To all which I say, first, That it plainly appears she was Daughter of Earl Hugh; but that she was a Lawful Daughter, that no where appears; nor did the Earl in the Deed mentioned, grant her two Knights-Fees in Frank-marriage, as is here alledged; but he granted with her in Frank-marriage, the Ser­vice of Gilbert, Son of Roger; to wit, the Service of three Knights-Fees, by doing to the Earl and his Heirs, the Service of two Knights-Fees; so that the Earl released on­ly the Service of one Knights-Fee by this Deed; too mean a Portion [Page 74]for a Lawful Daughter of the Earl of Chester, especially for the sole Daughter and Heir by a former Wife, as Mr. Dugdale supposeth her to be; so that res ipsa loquitur, whereas the four lawful Daughters of Earl Hugh, by his Wife Bertred, Married four of the greatest Earls then in England, and shared all the Lands of the Earldome of Chester; and sure the Eldest Daughter by a first Wife (if the Earl had a for­mer Wife) ought to have had as good a Portion of Lands or Money, as any of his Younger Daughters by a latter Wife, which for certain Amicia never had, nor claimed.

2. To the second, the Maxime of Law, that nothing can be given in Frank-marriage to a Bastard, is to be understood of the Law, as it is now taken in these latter Ages; but that the Law was otherwise ta­ken in the time of Amicia, and those more ancient Ages, I have proved in my former books, both from the words of Glanvil, who was Chief Justice of England, and lived in [Page 75]the very Age with Amicia, as al­so by three clear Presidents of those former Ages; and shall have fur­ther occasion to mention the same in the Case of Amicia hereafter following, which I have briefly and truly stated by it self, for the better apprehension of all men.

3. To the third: Here Mr. Dugdale concludeth Bertra to be a second Wife; but doth not, nor cannot in the least prove a former Wife; much less Amicia to be the Daughter of a former Wife.

And as to his Argument of Pro­bability, I deny absolutely that Earl Hugh Married Bertra when he was in years; for though he were Earl three or four years be­fore she was born, yet it follows not that he did Marry her when he was in years, for he came to be Earl in his Infancy.

But that I may lay this Argu­ment of P [...]obability (as he calls it) asleep for ever, take this Record here following, out of the Roll de Dominabus Pueris, & Puellis, re­maining [Page 76]in the Exchequer at West­minster: Which Roll Mr. Dugdale hath there also cited in the Mar­gent, to prove the Age of Bertrey, though not in the Words which I have here more at large expressed: I say, take here the true Coppy of the Rcord Verbatim, which my Friend hath twice examined for me, to prevent Mistakes: viz.

Scacca­rium a­pud West­minster. In Rotulo de Dominabus Pueris, & Puellis, de an­no 31. Hen. 2. in Custo­dia Rememoratoris Regis Existente, continetur (in­ter alia) ut Sequitur, &c.

Cow. Lincoln.

Balteslaw-Wapentak.

Matilda Comitissa Cestriae est de do­natione Domini Regis: et fuit fillia Roberti Comitis Glocestriae filij Re­gis Henrici Primi, et est L anno­rum, & amplius: Hujus villae Re­cepit Comitissa his VIII. annis: Ip­sa [Page 77]tenet Wadinton in dote de feodo Comitis Cestriae: et firma est XXII.libr. per annum: dict a villa valet per an­num XL. lib: Cum hoc instaura­mento, Scilicet, II Carucis, IIII Vac­cis, I Tauro, IIII Suibus, I Verre, Dovibus, quae ibi sunt: — &c.

Com. Lincoln.

Jeretre-Wapentak.

Bertreia Comitissa, filia Comitis de Evereous, uxor Hugonis Comitis Cestriae, est de donatione Domini Regis; & est XXIX annorum. Ter­ra quam Comitissa habet, XL. lib. Maritagium; & defectus sunt ultrà mare, ideo nesciunt Juratores quid valeant. Dominus Rex praecepit, quod ipsa haberet XL libratas terrae Domini sui in Beltesford, Hem­mingly, & Duninton: licet non habuit nisi XXXV libratas, & X solidatas. Quiá (ut dicunt) dicta terra non po­test plus valere cum Instauramento quod comitissa ibi recepit; Sci­licet, V Carucis, CCCXLI Ovi­bus, [Page 78]X Suibus, I Verre. Sed si in Duninton apponerentur CCoves, & X sues, & I verris, tunc Valeret.

So that, by this Record it clearly appears, that as Bertrey was twenty nine years of Age, 31. Hen. 2. 1185; So Maud (the Mother of Hugh Cy­vellioc, Earl of Chester) was aged fifty years, Anno Domini 1185. 31. Hen 2. &c.

And so Maud must be born Anno 1135. and Bertrey must be born An­no 1156.

Now it cannot be imagined, that Maud could have a Child before she was fifteen years of Age: And then Earl Hugh could not be born till the year 1150. at soonest. And by Consequence, Earl Hugh was a­bout three years old when he came to be Earl; and about six years older than his wife Bertrey.

What a monstrous and wild Com­putation then hath Sir Thomas Man­waring made, and upon utmost Pos­sibilities too, supposed, in his An­swer to my Addenda, pag. 50, 51. [Page 79]where he would have Earl Hugh to be 41. years old when he marryed his Wife Bertrey, which Marriage he supposeth to be Anno 1171? So also in his Answer to my two Books, pag. 49. Wherunto see my First Reply, pag. 91. to pag. 94. See also in my Second Reply, to his Ob­jection in that Point, mentioned here a little before, Pa: 46, 47.

And how could Earl Hugh now be in years (as Mr. Dugdale would have him) when he marryed his Wife, supposing with Sir Thomas, the Marriage to fall Anno Domini 1171? For, by this Record Earl Hugh would then be but 21 years old, and his Wife about 15. years old. So this Argument of Proba­bility is become an Argument of Improbability of the Earl's having any former VVife.

This Record came to my hands after I had written my Second Reply: And I am very confident, that when soever any Record, tending to this Point, concerning Earle Hugh, or Amicia, shall hereafter, at any time, [Page 80]be discovered, it will more and more illustrate the Truth of what I have written about them.

7. Having now laid asleep for ever The Argument of the Sticklers for the Legitimacy of Amicia, drawn from the Erroneous Computation of Earl Hugh's Age; I come now to the Letter of Sir Thomas Manwa­ring, before mentioned, written by him to a Kinsman both of his and mine, and left with Throp the Sta­tioner in Chester, purposely to be divulged, and made known to every Man in Town: wherein he writ. (among other things), That I having appealed to the Judges, Mr. Dugdale had moved them in the Case: who upon Mature debate, determined, that Amicia was no Bastard, as I was credibly inform­ed by one who saw the Letter.

But, (as I said before) How could there be any Mature-debate, or Determination of the Point in Controversie by our Reverend Judg­es, whiles as yet the Case is not at all agreed upon between us? For, [Page 81]Sir Thomas waves the Question in Law, and will not abide the Test; See pag. 60, 61. of his Answer to my two books.

For whether Amicia was a Bastard, or no? this Question hath nothing of any Law in the case, and therefore unfit to be put to our Re­verend Judges for their Opinions, unless also all the Records and Histories touching the same, toge­ther with the Reasons alledged on both sides, were produced before them: It is more proper for them to judge only upon the point of Law.

And it is granted on all hands, that Lands cannot pass with Bastards in libero maritagio, at this day, as the Law is now taken: but in the more ancient Ages, when the Deed to Amicia was made, Lands might and did usually pass with Bastards in libero maritagio: I af­firm it out of ancient Precedents; Sir Thomas denies it.

Now all Deeds by the rule of Law, are to be Construed and under­stood [Page 82]according to the time when they were made; so that there is now no other Case of Law to be put, but this, as I put the same in my Epistle Dedicatory, to all our Reverend and Learned Judges; to wit—

Whether in the Age of Glanvil, Lands lawfully might, and did u­sually pass with Bastards in Free-Marriage, or no?

Again, I am assured from very good hands (who have lately en­quired of many of our Judges a­bove) that there was no such thing as a mature debate & determina­tion, as Sir Thomas mentioneth in his Letter, nor their Opinions at all delivered as yet in the Case of Ami­cia, now in Contest; and some of them said, that they never had any such a question asked them, as whe­ther in the Age of Glanvil, Lands might Lawfully pass in Free-mar­riage with Bastards?

If Mr. Dugdale hath moved any of the Judges in private, for their Opinions in any point of Law about [Page 83] Amicia, had he but given me due notice of such his intention, I would have met him half way, and so the Case might have been truly stated, and the point thorowly debated; for he being on the place, might have those opportunities which I could not at this distance possibly have, and so the truth would have appeared to the world.

And therefore, that I may deal above-board, I have here follow­ing, published by it self, The Case of Amicia truly Stated, for the bet­ter apprehension & information of all Persons; and the rather, for that Mr. Dugdale only buildeth his Opinion of the Legitimacy of Ami­cia on the same point of Law, in his Baronage of England.

And howbeit (as I formerly said) I left every man to his own free judgment, thinking rather to esta­blish my own Opinion by Authori­ties and good Reason, then by other mens Opinions; so I never went a­bout to hunt for Opinions, especi­ally in the Case of Amicia, (for ma­ny [Page 84]did concur with me without my seeking) till after that Letter of Sir Thomas Manwaring before-mentioned: for I ever counted it an improper thing to prove a point of History by a nice point of Law.

But I have lately made some en­quiry, and am assured from very good hands, that some of our more eminent Judges above (and I be­lieve all of them, if they would deliver their Opinions in the Case) do concur with me in the point of Law aforesaid; and so do also o­ther Eminent and Learned Law­yer here below; that in those elder Ages, a gift in Free-Marriage, with a Bastard, was good, although at this day our Law is otherwayes ta­ken.

So that now there is not so much as one seeming Argument of Rea­son left to uphold the Legitimacy of Amicia.

Besides, one of our most eminent Heralds of our Nation, and King at Armes, is of Opinion with me also, that Earl Hugh never had any other [Page 85]Wife but Bertrey, as I have it from a sure hand, who was then present when he publickly spoke it, whose judgment I may well bottom on; for I am sure there is no History, or Record to prove any other Wife at all, and very many other judici­ous and knowing men do concur in opinion, that Amicia was a Bastard; and so I leave it to the judgment of all men, who are vers'd in Anti­quities, Records, and Histories.

And so I have done, if Sir Tho­mas hath doee; and now I think it will be time for both to have done.

Mobberley, Decem­ber the 17th. 1675.
FINIS.
THE CASE OF AMICIA T …

THE CASE OF AMICIA Truly Stated.

By Sir Peter Leycester, Baronet.

August the 5th. MDCLXXV.

Qui vult decipi, decipiatur.

Printed in the Year, 1676.

THE CASE OF AMICIA Truly Stated.

THe Question concerning A­micia, Wife of Rafe Man­waring, and Daughter of Hugh, Sir-named Cyvelioc, Earl of Chester, is briefly this—

Whether the said Amicia was a Bastard, or no? This is altogether a question of History, and nothing of Law at all in the Case.

The Reasons Collected out of History, Records, and Evidences, shewing her to be a Bastard, are these—

1. It is confessed on all hands, that Amicia was no Daughter by Bertrey, the Wife of Earl Hugh, for then she would have shared the Lands of the Earldom, with the o­ther Daughters by Bertrey, which for certain she did not, nor ever claimed any part of the same, as is most manifest by the Record of 18. Hen. 3. when all the Co-heirs did implead John the Scot, then Earl of Chester, upon a Writ de rationa­bili parte: See my book of Histori­cal Antiquities, pag. 151. as also by the testimonies of many of our ancient Historians, who have Re­corded all those Daughters in their books.

And she could be no Daughter by any latter Wife, because Bertrey survived Earl Hugh, her Husband: See my said book of Antiquities, pag. 132, & 139, & 143, & 148.

And she could be no Daughter by any former Wife; because Earl Hugh never had any other Wife but Bertrey? And the Sticklers for the Legitimacy of Amicia, do confess that they cannot prove a­ny other VVife at all; much less can they prove Amicia to be the Daughter of any such Wife: Therefore the Earl having no o­ther Wife but Bertrey, and Ami­cia being no Daughter by Bertrey, Amicia, Daughter of Earl Hugh, must certainly be a Bastard.

2. Earl Hugh had several other Bastards, as is evident by anci­ent Deeds; and if the bare al­ledging that he had another Wife be sufficient without due proof, then all his other Bastards may be made Legitimate, by saying that they were by another Wife: And our ancient Historians, as Matthew Paris, Poly-Chronicon, Knighton, Stow, and others, have Recorded the Lawful Children of Earl Hugh; but not one of them [Page 92]mentioning Amicia in the least, nor any former Wife at all, which some one or other of them, with­out doubt would have taken no­tice of, had Amicia been a Le­gitimate Daughter.

3. Rafe Manwaring, the Hus­band of Amicia, was not an equal Competitor at that time, to have Married a Lawful Daughter of the Earl of Chester; for we find the Lawful Daughters of this Earl Hugh were Married to the great­est Earls then in England: The Earl of Huntington, who was Brother to the King of Scot­land; the Earl of Arundel; the Earl of Darby; and the Earl of Winchester's Son and Heir; and therefore it is more than proba­ble, that Amicia was not a Lawful Daughter, especially since no pro­vision considerable was made for her, who must have been the only Daughter & Heir of Earl Hugh, by a first Wife, as those of the con­trary opinion would make her; [Page 93]and if so, she ought in all Reason to have had fully as great an E­state provided for her, as any of his Children by a latter Wife, which certainly she never had. Where­fore res ipsa loquitur; for nothing appears to be given unto her, save only the release of the Service of one Knights Fee, given with her in Frank-Marriage, which sure was too small a Portion for a Lawful Daughter of the Earl of Chester.

And thus much for the Question of History, whether Bastard, or no Bastard?

Which I submit wholly to the Judgement of all Wife and knowing men, who are versed in Histories, Records, and Antiqui­ties.

And many very wise and know­ing men, some Divines, some Lawyers, and other grave and un­derstanding Persons, have here­in declared that they concurre in Opinion, that Amicia was a Bastard.

But now ariseth another Questi­on; for those who would have Amicia to be a Lawful Daughter, and no Bastard (which cannot be supported either by History, Re­cords, or Reason) they would ground their Opinion from a point of Law; to wit, that Lands cannot pass in Free-Marriage with a Bastard; and because Amicia had a grant of some Services in Free-Marriage, from the Earl her Fa­ther, therefore they conclude she was no Bastard: For all other Ar­guments for her Legitimacy are so void of Reason and Authority, that all bottoms on this one Argu­ment; and the Question now is this—

Whether the Deed of Hugh, Earl of Chester, (wherein he gran­ted unto Rafe Manwaring in Free-Marriage with Amicia his Daugh­ter, the Service of Gilbert, Son of Roger; to wit, the Service of three Knights-Fees, by doing to the said Earl & his Heirs the Service of two [Page 95]Knights-Fees,) be a sure Argument to prove Amicia a Legitimate Daughter?

But for the better stating of the question, it is granted on both sides, that Lands cannot now pass in Free-Marriage with a Bastard, as the Law is taken at this day. The pro­per question of Law therefore in the present Case is this—

Whether by the Law, in Glan­vil's time (who was chief Justice of England, under King Henry the Second, and lived in the very Age with Amicia, when the said Deed was made) Lands might and did usually pass in those Elder Ages in Free-marriage, as well with Ba­stards as no Bastards?

The Arguments for the Affirma­tive part are these—

1. From the very words of Glan­vil himself (who was the first after the Norman-Conquest, who re­duced the Model of our Common-Law into writing) in his Treatise de Legibus Angliae, lib. 7. cap. 1. [Page 96] Quilibet liber homo quandam par­tem terrae suae cùm filiâ suâ vel cum aliquâ aliâ quâlibet muliere, dare potest in maritagium, sive habuerit haeredem sive non, velit haeres vel non, imo & eo contradicente: Also lib. 7. cap. 18. Liberum dicitur ma­ritagium, quando aliquis liber homo aliquam partem terrae suae dat cum aliquâ muliere alicui in marita­gium, ità quod ab omni Servitio ter­ra illa sit quieta, & à se & haeredi­bus suis, versus capitalem Domi­num, acquietanda.

And Bracton expresly, lib. 2. cap. 7. Quoniam terra data Basta­do in maritagium, sicut & aliis, vel Bastardo per se, in se tacitam habet Conditionem vel expressam de reversione—&c. See also Sir Thomas Manwaring's Law-Cases mistaken, pag. 10, 11.

So that Lands might be given in Free-Marriage to any man, with any woman whomsoever, without any exception; and if with any wo­man whomsoever, then certainly [Page 97]with a Bastard; and Bracton more expresly, that Lands might then be given to a Bastard in Marriage; neither are Bastards any where dis­allowed by the Law, either in Glan­vil or Bracton, for having Lands given in Free-marriage.

2. That the Law was so taken in the time of King John, and upwards, appeareth by sundry Precedents of those elder Ages, whereby Lands were given in Free­marriage with Bastards.

See one in my Book of Antiqui­ties, pag. 112. wherein Randle, Earl of Chester (Sir-named de Gernouns) gave unto Geva Ridel, Daughter of Earl Hugh [that was Hugh Lupus] Drayton, in Free­marriage with the Appurtenances, even as Earl Hugh gave the same unto her in Free-marrige: This Deed was made about the end of Hen. I. or King Stephen.

And that Geva was a Ba­stard, Ordericus an Historian of good Credit, and Contemporary with Geva, plainly shews; for lib. 4. [Page 98] Ecclesiasticae Historia, pag. 522. He tells us that Hugh Lupus had many Bastard-Sons & Bastard-Daughters; yet nameth none of them in particu­lar, è Pellicibus plurimam Sobolem utriusque sexûs genuit, quae diver­sis infortunijs absorpta penè tota periit: Exmentrudem filiam Hu­gonis de Claromonte Beluacensi ux­orem duxit, ex quâ Ricardum Ce­strensis comitatûs haeredem genuit, qui jnvenis liberisque Carens nau­fragio periit. So that having given an account of his Wife, and his Son by her, who dyed young, and without Children, he would cer­tainly have given an Account of his other Children by his Wife, if he had had any other by her; but [...]o put it out of all doubt, he tells us af­terwards, lib. 10. Eccles. Hist. pag. 787. Ricardus Pulcherrimus puer, quem solum ex Ermentrude filiâ Hu­gonis de Claromonte genuit, Consu­latum (Cestriae Scilicet) tenuit, so that Earl Hugh only begot Richard on Ermentrude his Wife & then by sure consequence out of his words, it must needs follow that Geva was [Page 99]was one of the Earl's Bastards, she being no Child by Ermentrude, his Wife; which is clearly proved without a point of Law, and cannot by any point of Law be taken off.

Again, if Geva had been a Law­ful Daughter by Ermentrude, then she would have been sole Heir to her Brother Richard, and ought to have had the Earldom of Chester, which she never had, nor ever claim­ed: See this more fully in my An­swer to the Defence of Amicia, pag. 35. to pag. 40. and if and shall run to the old Subtersuge, and say, she might be his Daughter by a former Wife, let him prove it, and take it; and she could be no Daughter by a latter Wife, because Ermentrudo survived Earl Hugh her Husband: See my Historical Antiquities, pag. 114.

Other two Precedents we have of Lands, granted in Free-marriage with Joan, Bastard-Daughter of King John.

1. One, wherein King John granted to Lewellyn, Prince of [Page 100] North-wales, in Marriage with Joan his Daughter, the Castel of Ellesmere in Shropshire; Tenendum ei, & haeredibus suis qui de eo & praedictâ filiâ nostrâ exierint, de nobis & haeredibus nostris in liberum maritagium; Salvis conventionibus inter nos & ipsum de terrâ & eo­dem maritagio factis, &c. Dated Anno Sexto Johannis Regis, 1204. See the Deed at large in the Adver­tisement to the Reader, at the end of my book, stiled Sir Thomas Manwaring's Law-Cases mistaken, pag. 53. transcribed from the Re­cord in the Tower of London.

2. Another see in my book of Antiquities, pag. 152. wherein it is Covenanted that John the Scot, Nephew of Randle, Earl of Chester and Lincoln by his eldest Sister, shall Marry Helen, Daughter of Lewellyn, Prince of North-wales; and that the said Lewellyn shall give to the said John in Free-Mar­riage all the Mannor of Budford in Warwick-shire, and the Mannor of Suttehele in Worcester shire, cum [Page 101]omnibus Pertinentiis, sicut Dominus Johannes Rex ea illi dedit in libero maritagio—&c. This Deed was made about 6. Hen. 3. Anno Christi. 1222. Now that the said Joan was a Bastard-Daughter of King John, take these several Authorities, Vin­cent upon Brook, pag. 204. Speeds History, p. 518. Stow's Annalls Aug­mented by Howes, pag. 167, 168. Polychronicon Translated into Eng­lish by Trevisa, lib. 7. cap. 33. Camb­dens Brittannia in Shropshire, pag. 453. also Daniel and Fabian, and Milles Catalogue of Honour, and Sir Richard Baker's History, who do all call her base Daughter of King John; and no Author at all calls her Lawful Daughter, or reckoneth her among the Daughters by any of his Wives; some of them say she was begot by King John on Agatha de Ferrars.

And therefore these Deeds and Charters which concerned so great Persons (whom we cannot suppose to be without Learned Councel a­bout them) are clear Precedents, [Page 102]showing how the Law was then ta­ken, and were good Deeds, con­veying the Lands with Bastards in Free-marriage in those Ages, which Lands were quietly enjoyed accor­dingly, and nothing can be said a­gainst them: Many other Prece­dents of like nature in those ancient Ages, might without doubt, upon diligent search and enquiry be found out.

For as much then as it appears by the words of Glanvil, that Lands might then be given with any Wo­man whomsoever in Free-marriage, and no Bastards then excepted or disallowed by the Law, either in Glanvil or Bracton, and that clear Precedents of those elder Ages do prove and show, that Lands did then usually pass in Free-marriage, as well with Bastards, as Lawful Daughters; and that all Deeds by the rule of Law, are to be constru­ed and understood according to the time when they were made: How can a Deed of Services, given in libero maritagio (in the Reign [Page 103]of Henry the Second) with one just­ly suspected to be a Bastard, be a sure Argument, or any Argument at all, to prove her Legitimate?

Wherefore it is very evident, that in those elder Ages (as the Law was then taken in the Reign of King John, and upwards) Lands lawfully might, & usually did pass in libero maritagio with Bastards, as well as with no Bastards, how­beit at this day our Law will not permit the same.

FINIS.

ERRATA.

PAge 7, line 16, [...] deseased for diseased; p. 8, l. 12, you for he, p, 14, l. 10, Index for Judex; p. 14, l. 19. The, to be expunged; p. 15, l. 9, Doterium for Dotarium; p. 30, l. 1, Cupitalis for Capita [...]is; p. 48. last line, man for men; p. 40, l. 22, 23. this this, expunge the one of them; p. 58, l. 19, 20. man man, expunge the one of them; p. 42, mispaged for 59; p. 76. in the margent, Seaccarium for Seaccarium.

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