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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A51538	A defence of Amicia daughter of Hvgh Cyveliok, Earl of Chester wherein it is proved that Sir Peter Leicester Baronet, in his book entituled, Historical antiquities in two books, the first treating in general of Great Britain and Ireland, the second containing particular remarks concerning Cheshire, hath without any just ground declared the said Amicia to be a bastard/ by Sir Thomas Mainwaring ...	Mainwaring, Thomas, Sir, 1623-1689.	1673 (1673)	Wing M300; ESTC R13643	32,519	94

you look Fitz-Herberts Graund Abridgment 9 Hen. 3. Dower 202. the words run thus Si le Roy donne certeine tre a un homme ove une feme en mariage si le bar ' nad issue pur la feme il naver la tre apres la morte la feme mes cest issu q' la feme au devaunt enherit c. So that you see in these Cases of Free Marriage my Lord Coke makes no difference between these words Ove une feme and these words With a Woman of his Kinred and by the same Reason being in the Case of Frank-marriage also Glanvile's words Cum alia qualibet muliere are to be understood with any other Woman of his Kinred onely Also which is very observable Glanvile was first made Justice of England 26 Hen. 2. as Mr. Dugdale tells you in his Chronology of Lord Chancellors Lord Keepers Lord Treasurers Justices c. which was about Forty five years before the 9 Hen. 3. Therefore what likelihood is there that the Law should be differently taken in so short a time from what it was in the time of Glanvile and especially since the Statute of Westminster the Second was not made till about Threescore years after the Nineth of King Henry the Third Fifthly Because the Author of the Book called The Laws Resolutions of Womens Rights Printed by the Assigns of John More 1632. doth tell us That in old time these Gifts in Frank-marriage were to be made to them of the Kinred as well as now His words in his Thirty third Section of Frank-marriage pag. 73. are these It was as I suppose more frequent in the old time that Men gave Lands with their Daughters in Marriage then it was at this day but now as then if a Man liberally and freely without any Money or other considerations save onely Love and Natural Affection give Lands or Tenements to another Man with a Woman which is a Daughter Sister or Cosin to the Donor in Frank-marriage whether it be tempore Matrimonii vel ante vel post This word Frank-marriage maketh an Estate of Inheritance viz. to the Donees and the Heirs of their Two Bodies and they shall hold quite of all manner of Services except the pure Fealty till the Fourth degree be past but the Issue in the Fifth degree and his Descendant shall hold of the Donor and his Heirs as they hold over Sixthly Because the Author of the old Treatise commonly called Fleta in the Third Book and Eleventh Chapter De donationibus in Maritagiis doth imply that these kind of Gifts must be made to them of the Kinred his very words are these Est autem quoddam Maritagium liberum ab omni servitio solutum donatori vel ejus haeredibus usque ad tertium haeredem vel usque ad quartum gradum faciendum debent gradus sic computari ut Donatorius primum faciat gradum haeres ejus secundum gradum haeres haeredis tertium haeres secundi haeredis quartum qui quidem tenebitur ad servitium ut ad homagium prius autem minime ne Donator vel ejus haeredes per homagium homagii acceptionem a reversione repellantur sed in quarto gradu pro eo quod tune vehementer presumitur quod terra non est pro defectu haeredum donatoriarum reversura quia etsi propinquos haeredes non habeat vel cum habeat defecerint ad donatorem vel ejus haeredes qui homagium ceperint non erit terra reversura dum tamen aliquis remotus de consanguinitate appareat qui jus in haereditatem poterit vendicare alioquin evanescit homagium revertetur Et cum de sanguine homagium factum fuerit extunc obligatur homo ad servitium quia servitium semper sequitur homagium c. Seventhly Because Bracton lib. 2. cap. 7. par 3. says thus Et sciendum quod terra datur aliquando ante sponsalia propter nuptias a patre mulieris vel alio parente ipsi marito cum muliere aliqua vel utrique simul sc tali viro uxori suae quod idem est eorum haeredibus vel alicui mulieri ad se maritandam c. And presently after Fit etiam talis donatio ante Matrimonium contractum aliquando in ipso contractu aliquando post contractum Which in my apprehension is as much as to say That this kind of Gift can onely be made by the Father Mother or some other Kinsman for the word parens or parent in Latine and French hath oftentimes that signification and of this opinion was my Lord Coke For in his Institutes upon Littleton pag. 21. b. he tells you That one of those things incident to a Frank-marriage is that the Woman that is the cause of the Gift be of the Blood of the Donor and for this as appears Letter 1 amongst other Proofs he in the Margent cites Bracton lib. 2. cap. 7. Also which is very considerable Mr. Bracton here useth this expression Cum muliere aliqua and yet meaneth a Kinswoman and why then should we think that Mr. Glanvile doth not mean a Kinswoman though he use this expression Cum alia qualibet muliere and especially since my Lord Coke in the very Page of his Institutes last mentioned quotes Mr. Glanvile lib. 7. cap. 18. And amongst others that expression of his Cum aliqua muliere in Maritagium and also in the Margent cites Glanvile lib. 7. cap. 1. the very place on which you frame your Argument which he would never have done if he had thought the opinion of Glanvile had been contradictory to his own And if there had been any such thing as that the Law in this point had been severally taken in so very short a space as betwixt the time of Bracton and Glanvile sure my Lord Coke would in that place have taken notice thereof Eightly and lastly The Law appears to be the same in this Case which it was in Glanvile's time because as Littleton tells us in his 271 Section Gifts in Free-marriage were by the Common Law before the Statute of Westminster the Second Now the Common Law hath always been the same and as my Lord Coke tells us in his First Part of Institutes fol. 115. b. hath no Controuler in any part of it but the High Court of Parliament and if it be not abrogated or altered by Parliament it remains still But the Parliament hath made no alteration concerning Gifts in Free-marriage except the said Statute of Westminster the Second cap. 1. By which they turned the Estate that passed by those Gifts in Feesimple into an Estate Tail all Inheritances being Feesimple before the said Statute so that in other respects the Law in this Case remains as it did And that this is so I conceive is very clear because I suppose neither you nor any other person can tell any one particular in which the Common Law is or hath been altered but by Act of Parliament Neither could

several places as also Glanvile Cheif Justice of England who lived in the same time that Amicia did and you also alledge that you have found a Precedent where Lands were given by the Father in Free Marriage with his Base Daughter To what you urge out of my Lord Coke I do thus say That I do conceive the Common Law where not altered by Parliament is the same at this day that it was formerly and therefore my Lord Coke on Littleton telling us Pag. 115. b. that it is a Maxim of the Law That whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still I might thence argue That if it had ever been at the Common Law that a Man might have given Lands or Services In libero Maritagio with a Bastard or one that is not of the Blood that it would be lawful to do so still because that part of the Law is not ousted or taken away by any Statute but a Man cannot do so now And therefore the Common Law never was that a Man might give Lands or Services with a Bastard in Free Marriage or to one that was not of the Blood So that those places which you have cited do not prove That the Common Law at this day doth vary from what it was in former ages in any particular but onely that it was taken to be otherwise in those days and it is but just like some Cases in our Reports which have at several times been adjudged directly contrary to each other but notwithstanding that the Law was still the same But that I may come as near you as I can I shall acknowledge that though the Common Law was ever the same where not altered by Parliament yet in former Ages they did in some particulars take the Law to be otherwise then they now do and if you could prove that they did so in this Case of Free Marriage it would take off much of the strength of this Argument because that Antient Deeds and Grants according to what my Lord Coke on Littleton says fol. 8. b. at the bottom are to be expounded as the Law was taken to be at the time of the Grant But this is so far from making against my opinion that I think it doth add very much strength thereto for if it had been taken in former Ages that Lands might have been given in Free Marriage with a Bastard or one not of the Blood it certainly would sometime or other have been so observed by some of the Sages of the Law for where the Law hath been taken in one Age after one manner and in another age after another manner it is so remarkable that it could not pass unobserved by all As to what you alleage out of Glanvil who says Quilibet liber homo quandam partem terrae suae cum Filia sua vel cum aliqua alia qualibet muliere dare potest in Maritagium I do conceive it is the same thing in Law and shall be so intended as if it had been expresly said With any Woman of his Kinred and that for these Reasons First Because though such kind of Expressions seem to be Universal and without any exception at all yet they shall not be so largely taken but shall be expounded so as may agree with the Laws of that Kingdom or Nation to which they particularly do relate and for this I shall give you an example out of Scripture it self In the Fourteenth Chapter of Deuteronomy and the Twenty sixth Verse there was a Liberty given to the Jews in some Cases and at some of their Feasts to eat whatsoever their Soul lusted after and whatsoever their Soul desired And yet this was not to be expounded universally of all Meats whatsoever in case they desired the same but must be meant onely of such Meats as were legally clean and allowed them to eat by their Law And thus when we also say That any Man that hath Money enough may buy Lands when he pleaseth it shall not be understood of any Man whatsoever For a Traytor or a Jew or one that is convicted of Felony or an Alien cannot purchase Land in England but it shall be understood of one that is by Law enabled so to do And so in like manner the words Cum alia qualibet muliere must be understood onely of such a Woman as is capable of such a gift which a Woman that is a Bastard or not of the Blood or a Jew or an Alien c. is not For in these kind of Gifts as Mr. Bracton tells you Lib. 2. cap. 11. the Land so given is Liberum tenementum uxoris non viri cum non habeat nisi custodiam cum uxore Secondly Because I do conceive that Glanvil hath immediately contradicted himself unless by these words Cum aliqua alia qualibet muliere he understands a Woman that is of the Blood of the Donor For he tells us in the same Chapter and the very next words to those that you cite That none can give Lands in remunerationem servitii sui to hold good after the death of the Donor unless there be Seisin in the life time of the Donor which is untrue If a Man having a mind so to reward his Servants can give Lands with his Woman-servant to a stranger or with his Woman-servant to his Man-servant in Free Marriage For where Lands are given In libero Maritagio according to Law there needs no Seisin and where they are given contrary to the Law viz. to one not of the Blood of the Donor Seisin doth onely make it an Estate for Life as my Lord Coke says in his Institutes Part 1. pag. 21. b. So that it seems clear Glanvil by the words Cum aliqua alia qualibet muliere understands one of the Blood of the Donor as well as I hope hereafter to prove that Bracton doth by the words Cum aliqua muliere Thirdly Because that though Glanvil lib. 7. cap. 1. says A Man may give part of his Heritage to his Bastard and that also Bracton in his Second Book and beginning of his Seventh Chapter tells us That Lands may be given Bastardo in Maritagium cum aliqua muliere yet neither of them hath one word at all to prove That Lands may be given to a Man cum Bastarda whereas in this Case of Frank-marriage the party with whom the Land is given not the party to whom the Land is given is the principal thing that is considerable herein Fourthly Because my Lord Coke in the First Part of his Institutes fol. 21. b. tells us That if the King give Land to a Man with a Woman of his Kinred in Frank-marriage and the Woman dieth without Issue the Man in the Kings Case shall not hold it for his life because the Woman was the cause of the Gift but it is otherwise in the Case of a common Person And to prove this in the Margent he cites 9 H. 3. Dower 202. Whereas if