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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

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 of Peover in Cheshire Baronet London Printed for Sam. Lowades over against Exeter House in the Strand 1673. TO Sir Peter Leicester Baronet IT will appear very strange to those who know the nearness of Blood that is betwixt us that I should appear in Print against you and I do confess it is not without some regret that I am constrained so to do If you would have been contented to have delivered what you did conceit concerning Amicia the Daughter of Hugh Cyveliok Earl of Chester as an uncertainty onely as you have done that of Roger Son of the said Earl Hugh you know I would have rested satisfied with the Judgment of those many knowing and unconcerned Persons that have dissented from you therein and would never have given you and the Reader the trouble of any one of these Lines But since you were so fond of divulging this your supposed new Discovery notwithstanding your being descended of her as to determine her in your late published Book absolutely to be a Bastard and did also many years since without any other occasion at all send a Paper tending to the same purpose to a then Deputy Herald though at that time you did wholly mistake the state of the Case I hope it will not be taken ill if I endeavor to give her a publick Vindication I might here take occasion to tell you that I very much wonder when you mention Ralph Mainwaring Cheif Justice of Chester and his Son Roger and William Mainwaring Younger Son of the said Roger which William had Over or Higher Peover by gift of his said Father that you do not take notice that they were all three Knights you having seen proof thereof by many Deeds where the word Dominus is prefixed to each of their names which was not that I know of used to be done to any in those elder Ages but those that were Knights Clergy Men onely excepted and accordingly in the 330 and 332 Pages of your Book you own Sir Thomas Mainwaring of Warmincham to be a Knight upon the like Proofs as also why you have not in the descent of the Mainwarings of Peover set down Ranulfus that is mentioned in Domesday Book whom you truly suppose to be a Mainwaring as also all the other Mainwarings that were before the aforesaid Sir William Mainwaring in regard they held Over-Peover or the most part thereof as well as they held Warmincham For that Tadetune which Ranulfus in Domesday Book is said to hold in Mildestric Hundred is Warmincham it appearing by Ancient Records that Manerium de Tetton Manerium de Warmincham est unum idem Manerium and it is also clear that Ranulfus was a Mainwaring because though he be there named without a Sirname as Odard or Hudard the owner of a part of Dutton and many others were yet the Sirname of Mesnilwaren or Mainwaring for that name in Records and Deeds is written very many ways was as appears in your Book Pag. 111. used in the days of King William Rufus as it also was ever since and all the Lands that the said Ranulfus had in Cheshire which are mentioned in your Book Pag. 422 423 426 427. As also all the Lands that Ranulfus held in Norfolk were enjoyed by the Family of the Mainwarings I might also here take notice of your mistake in the 336 Page of your Book where you blame the Herald for making in Queen Elizabeths time for the then Sir Randle Mainwarings Coat Barry of Twelve pieces Argent and Gules for which you cite Guillims Heraldry but that was the mistake of Guillim and not of the Herald as appears by the Pedegree then made which you have often seen For the Coat which the Herald did then allow the said Sir Randle to have a Right unto as well as to those two placed in your Book P. 331. and 333. the first whereof though cut right is by you blazoned amiss was Argent six Barulets Gules which Coat you take notice Sir Roger Mainwaring did Seal with and the direct Line of the said Sir Roger Mainwaring presently failing Sir Thomas Mainwaring Eldest Son of the said Sir Roger having issue Sir Warine Mainwaring who had issue a Daughter and Heir I know no reason but the Mainwarings of Peover who as is confessed by you Pag. 333. are now next Heir-Male to the Mainwarings of Warmincham have a good right to the Six Barnlets with which Sir Roger Mainwaring of Warmincham Father of Sir William Mainwaring of Peover did Seal as well as they have to the Two Bars which Sir Thomas Mainwaring of Warmincham Brother of the said Sir William Mainwaring did bear I might in like manner here let you know that I do suspect you have branded several Persons in your Book with Bastardy without direct Proof thereof And although I shall not concern my self for any but some of those which are by you mentioned when you write of the base Issue of Hugh Cyveliok yet if I make it appear that you have there without any certainty aspersed two other Ladies besides Amicia I hope you will have no just cause to blame SIR Your most affectionate KINSMAN and Servant Thomas Mainwaring Baddeley Feb. 27. 1672 3. The Words of Sir Peter Leicester concerning Amicia Daughter of Hugh Cyveliok Earl of Chester in his Historical Antiquities Part 2. Chap. 5. Pag. 134 135 136 137 and 138. IV. The Base Issue of Hugh Cyveliok PAganus Dominus de Milton whom I have seen witness to a Deed subscribed thus Filius Bastardus Hugonis Comitis Cestriae Roger witness to a Deed of his Brother Randles to the Abbey of S. Werburge whom I conceive was a Bastard Amicia the Wife of Ralph Mainwaring sometime Judge of Chester to whom Hugh Cyveliok Earl of Chester her Father gave In libero maritagio servitium Gilib filii Rogeri scilicet servitium trium Militum Faciendo sibi servitium duorum Militum as the words of the Original Deed do run now in the Possession of Sir Thomas Mainwaring of Over Peover Baronet Also another Base Daughter as I conceive Married one Bacun and had Issue Richard Bacun Founder of the Priory of Roucester in Staffordshire about the Reign of King John for the safety of his Soul and the Soul of his Vncle Randle Earl of Chester Monast Part 2. pag. 267. And here I cannot but mislike the boldness and ignorance of that Herald who gave to Mainwaring of Peover the Quartering of the Earl of Chester 's Coat of Arms. Which device was never done before the Raign of Queen Elizabeth in the time of Sir Randle Mainwaring late of Peover