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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A51562	A reply to an answer to the Defence of Amicia, daughter of Hugh Cyveliok, Earl of Chester wherein it is proved, that the reasons alleadged by Sir Peter Leicester, in his former book, and also in his said answer, concerning the illegitimacy of the said Amicia, are invalid, and of no weight at all / by Sir Thomas Mainwaring ...	Mainwaring, Thomas, Sir, 1623-1689.	1673 (1673)	Wing M303; ESTC R10002	39,045	108

Judges there because there were no such persons belonging to the then Earls except John Lacy Constable of Chester who was not made Earl of Lincoln as appears in your Historical Antiquities page 270. till the 23 of November 1232. which was but four years and upwards before the death of John Scot the last of the said Earls yet there were ever antiently persons of good quality that were Judges of Chester and if it had not been always a place of great repute the Kings of England would never have made such very great persons to have succeeded them therein As to what you alledge in the 18 19 20 and 21 pages of your Answer I do not doubt though you affirm it can never be proved but that I have already in my former Book given most persons satisfaction that Amicia was of the Half-Blood to Earl Randle by a former wife of Earl Hugh And whereas you object that it is more rational to imagine that Earl Hugh matching his only Daughter which he had by a former Wife would have married her to as considerable a person as was either provided by himself or his Son for his younger Children by a second venter I do answer and say That I am not certain whether Amicia was the only Daughter that Earl Hugh had by his former Wife because I know some that pretend they can tell of some other Daughter or Daughters which the said Earl Hugh had by his said Wife but I do confess I have never seen just proof of any but her but supposing her to be the only Child by his first Wife I have in my former Book pa. 23 24 and 25. shewed that there is no strength in this Argument of yours And I may here further add that if you will search for examples you may find very many where the elder Sisters sometimes because swayed by their affections and sometimes for other reasons have not been married to so great persons as the younger Sisters have been neither can you tell what portions Earl Hugh gave to Amicia or to any of his other Daughters neither is there any necessity that the elder Sister because by a former wife must have as great a portion as a younger Sister by a latter Wife because many times persons are not able to give so great portions in their younger days as afterwards and because the Children of the living Wife are oftentimes better provided for than those of the dead Wife and of this I could if I pleased instance in some that I know and in case the Father dye and leave onely issue Female by a first and a Son and issue Female by a latter wife as in this case there is great likelihood besides the advantage that the Sisters by the latter wife would have by being Heirs at Law to their Brother he dying without issue that the Brother will naturally be more kind to those Sisters that are of the Whole-Blood and about the same age and bred up with him than he will be to her that is but his Half-Sister and much older then himself And whereas you say pa. 18 and 19. that the expectation of Earl Randle Blundevile's Sisters of the Whole Blood which I conceive added to their fortunes whereby they matched to so great persons could not be much being grounded upon great uncertainties since it could not be foreseen when they married that their Brother should dye without issue who afterwards married two wives successively purposely to have issue of his own Body to inherit his own Lands I do think if you consider it you cannot in good earnest believe that the said Earl Randle Blundevil's four Sisters were married before the said Earl married his first wife whatever they were when he married his second wife For Bertred the Mother of Randle Blundevil being aged but twenty four years when her Husband Earl Hugh died as appears Rot. de Dominabus pueris c. in Scacc. penes remem R. sub Tit. Linc. Rot. 1. and the said Randle as appears in your Historical Antiquities page 146. being married to Constance the Widow of Geffrey fourth Son of King Henry the II. and Daughter and Heir of Conan Duke of little Brittain and Earl of Richmond in the year 1187. at which time the said Bertred was but about Thirty years old Can any one think that all the five Children of the said Bertred were then married And whereas you say that it was I who informed you of the three eminent Judges and four Heralds that were of opinion that Amicia was Legitimate If your meaning be that I was the only person who informed you thereof I must impute it to the weakness of your memory which fails you in this particular For you had many times seen our Pedigree attested by Mr. Cambden and Mr. Sampson Erdeswick who did allow her to be a Legitimate Daughter and several years since two other Heralds who are yet living at Chester did declare to you in my hearing that she could not be a Bastard and the one of them then named to you a Chief Justice of the Common Pleas and a Lord Keeper of the Great Seal of England both now deceased who did concur with them therein and you have also seen an opinion of a Third Judge under his Hand together with Reasons for the same and though you speak so slightly of the opinions of Judges and Heralds in comparing them to Hands got to a Petition or Certificate and pretend it was without hearing the Reasons on the other side I very well know though it seems you have forgotten it that that hand which was obtained was procured because you seemed to desire to know his opinion in the case And I also know that those two Heralds who at Chester did declare their judgements against you did then hear all the reasons that you could then alledge As to what you say pa. 22 23 24 25 26 and part of the 27 in all which you would willingly prove that the Common-Law is now altered some other way than by Statute you do but lose your labor and can never prove the same For in that Maxime of the Law where it is said That whatsoever was at the Common-Law and is not ousted or taken away by any Statute remaineth still the words ousted or taken away must needs be taken conjunctively and must necessarily bear this sence that the Common-Law still is the same in all points as it was before except where taken away by Statute and if those words should be taken otherwise then the meaning would be this that that part of the Common-Law which doth remain doth remain which would be a very strange Maxime And whereas you heretofore urged some places to prove that the common-Common-Law is alter'd at this day from what it was in former ages long after the time of King Henry the II. which you now also urge again in the 24 page of your latter Book I must give you the same answer which I formerly did viz. That

of the right Line as also the Mainwarings of Peover after they became next Heirs Male have constantly born the two barres for some hundreds of years I might reply and tell you that the Mainwarings of Peover have not constantly given Argent two Barres Gules since they became Heirs Male to the Mainwarings of Warmincham as appears by my Deeds Neither do I think that Mr. Cambden did look upon the Six Barrulets as a Coat most peculiar to us for in his Britannia in his Description of the County of Chester he names the two Barres as the Coat most proper to our Family as appears by these words of his when he writes of Astbury Church viz. Haec enim perpulchra est cujus porticus Occidentalis ipsam Ecclesiam quae sane alta sua altitudine adaequat pyramidem adjunctam habet In caemeterio duae jacent sepulchrales Militum effigies in quorum scutis sunt duae directae areolae sive Barrae Verum cum coloribus suis destituantur non facile quis dixerit fuerintne ex Breretonis Mainwaringis vel de Venables quae clarissimae sunt in vicinia familiae ejusmodi Barras variantibus coloribus gentilitiis in clypeis gestant I rather think that my Great Grandfather having a Fancy to that Coat of Six Barrulets more than to that of the two Barres because the most antient of our Deeds were sealed therewith that Mr. Cambden gave him liberty to bear either the one or the other which I see not but it might be done being our Family had for several generations usually born the one and the other had been born by our Ancestor and had never been used by any other Family and I am sure though you be so captious with us that you your self have of late years given a different Crest from what had for a long time been born by your Predecessors because you found a more antient Crest in some of your Seals And whereas you instance in the great Suit betwixt Scroop and Grosvenour in the Marshals Court under Richard the II. concerning the bearing of a Coat of Arms whereto both challenged a right and propriety by usage but no other way You thence rightly infer that usage makes a right in such cases but when you say that usage only makes a right you are mistaken therein For not to mention the case in hand where a mans Ancestor hath born a Coat which for sometime hath been laid aside but never taken up by any other Family a Man could then have no right to a Coat which was given him by a King of Arms. I am still of opinion that you have branded several persons in your Book with Bastardy without any proof thereof but shall not yet concern my self for any besides my own Ancestor except such as you give me just occasion to take notice of And as for Geva and Richard Bacun's Mother the first of them is not yet by you proved to be a Bastard and I shall certainly hereafter make it appear that the second was no Daughter of Hugh Cyveliok so that Amicia is like to receive no blow at all And if they were both Bastards it would be no prejudice to Amicia because I have in my former Book fully proved that the gift to Geva was not a Gift in Free-Marriage as that to Amicia was and you do not pretend at all that any such gift was made to the Mother of Richard Bacun And whereas you tell me you believe that Geva and the wife of Bacun had never been spoken of nor suspected nor doubted of by me had not the case of Amicia been concerned I can assure you I should have been of the same opinion concerning them if you had never mentioned Amicia but if you had not pretended from their Cases to raise some Arguments against the said Amicia I should never have troubled my self about them and therefore I forbear to tell you of all mistakes except such as the case in hand doth give me just occasion to observe And whereas you say page 12. that you think you shall make good what you have alledged with as much certainty as the nature of the thing and times will admit And also page 27. that Geva was certainly a Bastard by as good proof us can possibly be expected in such a case You do thereby implicitely confess that you do not make those things appear with any certainty at all I have now done with what you have said concerning my Epistle and shall now proceed to consider of your Answer to the Book it self and because you do in several places again say what you have said heretofore I hope the Reader will excuse me if I be constrained sometimes to repeat the same things which I also have formerly said In the 14 and 15 pages you do tell me that I said I would remind you of that which you had formerly been told viz. Who those Heralds were that gave to Mainwaring of Peover the quartering of the Earl of Chester's Coat in Queen Elisabeth's time and withal do say that I never told you till long time after that part of your Book was written which perhaps may be true because that part of your Book was written very long since viz. in the year 1647. but I am sure I have often told you of them and you have also often seen the Pedigree it self under the hands of Mr. Cambden and Mr. Sampson Erdeswick the rest in that place is only the repeating of your former quarrel with them for suffering us to quarter the Earl of Chester's Coat but if we can really prove that we are of the Half Blood whatever you conceive of it I suppose all indifferent persons will think it but meet that we should have the like liberty that all others have in the like case in these last ages of ours What you say in the 16 and 17 pages hath been some of it formerly said in your Historical Antiquities and also in the 15 page of this your Answer and there is nothing there that is new but that you only alledge that as to my note of Dukes and Earls to have been antiently Judges of Chester I should have distinguished the times for that was not till the Reign of Richard the II. who made Deputies to act in their stead before which time there were no such great persons Judges there nor from Henry the Sevenths time downwards But what necessity there was for me particularly to distinguish the times in which those great Dukes and Earls were Judges of Chester I do not know For I only instanced in that to shew that the place of Judge of Chester was antiently a place of great repute and though it was some time after the death of John Scot before any such great persons were made Judges of Chester by the Kings of England and that in all the times of the Earls of Chester before that Earldom was united to the Crown there could not be any Dukes or Earls made

those places do not prove that the common-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 otherways in those days and that it was but just like some Cases in our Reports which have at several times been adjudged directly contrary to each other but notwithstanding that the Common-Law was still the same And that I might come as near you as I could I did then acknowledge that though the Common-Law was ever the same where not alter'd by Parliament yet in former ages they did in some particulars take the Law to be otherways than they now do And I did also acknowledge that if you could prove that they had done so formerly in this case of Frank-Marriage that it would have taken off much of the strength of my Argument from the words in libero Maritagio 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 Now these places which you alledge do not prove a change of the Common-Law in any particular other than by Statute but only that the Law was sometimes differently taken in one Age from what it was in another Age for in your 24 page where you cite Coke upon Littleton fol. 34. Sect. 39. you do not there say that my Lord Coke's words were That the Law was different in Glanvile's time in the particular you there mention from what it is now but you say that he saith that in antient times as it appears by Glanvile lib. 6. cap. 1. it was taken that is the Law was taken that a Man could not have endowed his Wife ad Ostium Ecclesiae of more than a third part but of less he might but at this day the Law is taken as Littleton holdeth which is That a Man may Endow his Wife ad Ostium Ecclesiae of his whole Land or of the half or other less part which is the very same thing that I said And where you again cite Coke upon Littleton fol. 8. a. towards the bottom you bring him in saying that of antient time the Heir was permitted to have an action of Debt upon a Bond made to his Ancestor and his Heir but the Law is not so at this day but my Lord Coke doth not say as you do viz. That the Law is not so at this day but that the Law is not so holden at this day so that he still avoids the expression of the Law being changed otherways than by Statute although it was differently holden in several Ages And thus as you may see Coke upon Littleton fol. 21. b. in the Case of Piers de Saltmarsh and others it was judged in King Edward the Thirds time and in King Edward the Fourths time That a Man might give Land to his Son in Frankmarriage but in King Henry the Eighths time it was holden otherways the former Books being not remembred But notwithstanding that this point was judged thus differently the Law was still the same and all that can be said is that some of the judges did not judge right according to the Common-Law and indeed if this Rule of yours was true that because the Judges in one Age did take the Common-Law to be otherways than it was taken in former Ages that therefore the Common-Law was changed The Judges then could never do contrary to the Common-Law For when they had declared though erroneously that the Common-Law ought to be otherways taken than it was formerly the Common-Law by your Rule would be thereupon changed and what they did would ever be legal The absurdity whereof every one may easily discern What you say page 27 28 29 30 and 31. to all those Reasons which I did give to shew that whensoever the word Mulier is used in the case of Frankmarriage it shall by common-intendment be understood of a Woman that is of the Kindred will I believe give no knowing person any satisfaction at all for though you pretend your self to be very pleasant when you say you have seldom known nor you believe any other any such question as this Whether Hugh Cyveliok had a former Wife to be proved by argument of Scripture or nicety of Law which is meerly a question of History yet certainly the understanding Reader will easily perceive that this is but a shift and will also discern that I did not bring that place of Scripture to prove that Hugh Cyveliok had a former wife but that I made use of it by way of answer to take off what you had alledged and I do not at all doubt but that Text will fully satisfy that all expressions which seem Universal are not always to be expounded without any limitation at all but as you would extend that expression of Glanvill too far so you run to the other extream concerning this of Deuteronomy 14.26 and would restrain these words or for whatsoever thy soul desireth only to those things there mentioned viz. Oxen Sheep Wine and strong Drink which would be a Tautologie and several times in the same verse give them liberty to make use of Oxen Sheep Wine or strong Drink whereas undoubtedly the Jews at their said Feasts had also liberty to eat the Goat the Hart Roe-Buck Fallow Deer Wild Goat Pigarg Wild Ox the Chamois as also all clean Fowls Fishes and other clean meats whatsoever allowed them by their Law and therefore this expression being as universal as that of Glanvill and yet being to be expounded so as to agree with the Laws of that Kingdom why should not this seeming universal expression of Glanvill be so expounded as to agree with the Laws of our Kingdom And if so sure what I say is to the point in hand Also If this Text of Scripture should be restrained as you would have it it would not contradict but confirm what I said For what expression can seem more universal than this viz. whatsoever thy soul desireth and yet you confess it ought not to be understood without some limitation and indeed you restrain it more than I do And though it be true that Bastards both were and yet are capable of receiving Lands after they have gained a name by reputation yet they are not capable of having Lands passed with them in libero maritogio though it be passed with them by the name of Daughter without the addition of Bastard and though you pretend that Amicia had gained a name by reputation yet you do not nor cannot tell what it is for certainly Amicia and Daughter are not any reputed names Neither do I put my argument about Glanvil's contradicting himself as you put it as will appear pa. 34 and 35. of my former Book so that you leave what I there say wholly unanswered Neither do I say that the Lawyers of latter ages do expound the Law that Lands cannot pass in Free-marriage with

and say that Randle Blundevil made that Deed which cannot be Because those witnesses as appears before did live in the time of Randle de Gernoniis and not in the time of the said Randle Blundevil they being no witnesses at any time to any Deed of Randle Blundevils that I can find although he was Earl of Chester above fifty years so that nothing can possibly be more clear than this is As to the word aspersed which you fault me for using I do not apprehend that it signifies a malicious seeking to throw dirt in anothers face unjustly For to asperse properly signifies but to besprinkle with which malice will seldom rest satisfied and I will do you this right to declare that I believe it is not malice but a desire to divulge your supposed new Discovery which occasioned you thus to do That way of Arguing which you use in the 57 Page is very odd For Because you suppose the Respondent will deny your Minor you would have him give over answering and turn Opponent and so endeavour to disprove what you ought to prove But what you say Page 58. that you have proved Amicia to be a Bastard unless Hugh Cyveliok had a former Wife and also Page 59. that if he had no other Wife but Bertred and she no Daughter to Bertred then certainly if she be a Daughter and so called she must needs be a Bastard is undoubtedly true For Amicia must needs be a bastard unless she was legitimate You grant in your 59 Page That my proving Amicia to be called a daughter so long since she ought to be presumed legitimate till the contrary appear But why therefore do not you presume her so to be And though you pretend there are many strong reasons to the contrary yet I have shewed the invalidity of them all and therefore what I have formerly said stands good and is to the point viz. That the proving that she was not by Bertred does not prove that she was a bastard but onely proves that she was either a bastard or by a former wife And as to what you alleadg Page 60. that though the Law allowes not this in pleadings what hinders but Bastardy may be proved by History or Argumentation after the parties death As supppose in a register-Register-Book you find such a Bastard Christened one hundred yeares ago may not you justly call that person a bastard whom you find so Registred I do answer and say That even in that case though it be good proof that there was then a Bastard of that name yet if in any Deed or otherwayes in the same Age you find one of that name you are not to be too positive that that Man was that Bastard because there might be more persons than one of the same Name whose Fathers might also be of the same Name each with other and though these mistakes might easily be cleared by the party concerned whilst he was alive yet it may be difficult sometimes to do it after he is dead And that is as I suppose one reason why the Law gives no liberty to prove Bastardy against any Man after his death But the cases of the children of John of Gaunt by Katherine Swynford are not like to this case For you certainly know that they were born Bastards but afterwards legitimated and I think after their legitimation they might have had the same remedies against any that did call them Bastards that persons lawfully born might have Whereas I tell you out of Sir Henry Spelman that in cases of honor and profit by the customes of Normandy appellatione filiorum non comprehenduntur bastardi You answer and say that in other cases and formerly by the appellation of sons bastards were comprehended and that this makes directly against me But how this makes against me in what cases soever bastards were formerly comprehended by the appellation of Sons and Daughters if they were not comprehended in cases of honour and profit I cannot tell feeing that Amicia is called a Daughter and that in a case of so great profit that you will needs have it to be her whole Portion And whereas you mention the next words of Spelman viz. that the ancient Northern people admitted bastards to succeed in their inheritance and that William the Conquerour was not ashamed of that title who began his Letter to Alan Earl of Little-Britaine as he did many others Ego Willielmus cognomento Bastardus I do not know how you can apply those expressions to the case in hand and if you could they would make against you For when Bastard children were so much esteemed as to be admitted to succeed in the inheritance then certainly illegitimate Daughters would have great Portions as well as those that were legitimate And why should not Amicia if she was a Bastard be so called as well as Paganus was who as you say was the Son of Hugh Cyveliok Or why should Hugh Cyveliok himself be more ashamed to call her so than William the Conqueror was to stile himself a Bastard What else you have said Page 61 62 63. hath been said over and over again by you and hath formerly received a full Answer In the 64 65 Pages you recite and endeavour to fortifie an Argument of mine which I brought not as a good Argument but compared it to one of yours to shew the invalidity thereof neither did I at all doubt but that William Randle and Wydo Sons of the aforesaid Roger Mainwaring were all legitimate it being good proof thereof that in so antient a Record they are all three called Sons of the said Roger But I shewed you by the Rule by which you went viz. that none should be believed lawfull unless we could directly and in terminis prove their Fathers to be married that the said William Randle and Wido and most persons that lived in the First and Second Centuries might be concluded to be Bastards And though you tell me that I here argue well which must needs be because this Argument of mine is so like to yours and that you would say to my Minor that Roger had a Wife though we yet know not who she was and that this appears certainly because the Lands descended from heir to heir and that you tell me how you would frame your affirmative part more formally Yet in stead of trying whether you could in terminis prove which by this your Rule you ought to do whether William who was the eldest of the three Sons of the said Roger was his lawful Son or but a bastard you beg what you should prove and take it for granted that he was the Son and Heir and say that if the Son and Heir of Roger succeeded by descent in his Fathers Inheritance then Roger had a Wise whereas if William was the Son and Heir of Roger the said Roger his Father must needs have a Wife whethersoever William succeeded in the Inheritance by descent or was disinherited For none but a