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 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 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 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 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 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. 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 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
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 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 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 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 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 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. 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
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 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 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 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 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 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 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 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
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. 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 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 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 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 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 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 Pâ—obability as he calls it asleep for ever take this Record here following out of the Roll de Dominabus Pueris Puellis remaining 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