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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

before Ralph the Steward of Cheshire But if Amicia was a Legitimate Daughter the reason thereof will be apparent For though it be true that the Husband cannot be Ennobled by the Marriage of his Wife yet the Earl of Chester being a Count Palatine and one that is confessed by you Page 152 159. to have Royal Authority within himself and not unfitly to bestiled a Petty King having under him his Constable of Cheshire in Fee in imitation of the Lord High Constable of England and his Steward of Cheshire in Fee after the example of the Lord High Steward of England and his Noblemen about him in imitation of the Barons of the Kingdom as also his Chamberlaine who supplieth the place of Chancellor and his Justices of Chester who have like power to the Judges of the Courts of Kings Bench and Common Pleas as also a Baron of the Exchequer a Sheriff and other Officers proportionable to those of the Crown It is no wonder at all if these great persons did voluntarily give Precedence to Sir Ralph Mainwaring during his life in regard he had married a lawful Daughter to one of their said Earls Add hereunto that when Earl Hugh Cyvelioke did by his Charter mentioned by you Page 131. acquit the Abbot and Monks of Stanlaw of some Toll in Chester which could be but a little before the said Earl's death because the said Earl died in the year 1181. And the Abbey of Stanlaw as is confessed by you Page 267. was Founded but in the year 1178. The said Earl in his said Charter contrary to all former Precedents which I have seen doth name the Justice of Chester before both the Constable of Cheshire and Steward of Cheshire and the Reason thereof I suppose to be because the said Ralph Mainwaring who was Son in Law to the said Earl was then Justice of Chester as he also was some years in the life time of Randle Blundevill though the said Ralph as appears by his aforesaid Deed made to Henry de Alditelegh did afterwards part with the said Office Philip de Orreby being Justice of Chester when the said Philip was a Witness to the said Deed. Now this preeminence could not be given to the said Ralph because he was Justice of Chester that being below the Offices of Constable and Steward as appears before but because of the Relation of the said Ralph to the said Earl But as this respect was too great to have been shewed him if he had onely married one that was a Bastard so it doth not consist with your conceits that the said Amice was Illegitimate and that the said Ralph had nothing else with her but the aforesaid Services For indeed they were not of sufficient value to be a Portion suitable to the Estate of a very mean Gentleman I Have at present done with this Discourse concerning the aforesaid Amicia but being desirous to rectifie all Mistakes which do concern my Family in all the Particulars that I can I think it not inconvenient to inform the Reader of one of yours in the 334 Page of your Book wherein speaking of Margery the Wife of Randle Mainwaring you say This Randle Manwaring of Over Peover stiled commonly Honkyn Manwaring in the Language of those times died 35 H. 6. 1456. Lib. B. page 21. E. Buried at Over Peover in the Stone Chappel on the South-side of the Church Which Chappel Margery his Wife surviveing erected with the two Monuments therein for her self and husband Anno Dom. 1456. For albeit it be very true that the said Randle Mainwaring did marry Margery the Daughter of Hugh Venables Baron of Kinderton and Widow of Richard Bulkeley of Chedle in Cheshire yet the said Margery did not survive the said Randle and after his death Erect the said Chappel and Monuments therein For although on the Eighth day of August in the Year of our Lord God One thousand six hundred and forty the Pictures of the said Randle Mainwaring and Margery were tricked out by a very good hand as they were then remaining in a Glass Window of the said Chappel Kneeling with this Inscription viz. Orate pro animabus Ranulphi Maynwaryng Margeriae Vxoris ejus qui istam Capellam Anno Dom. Mcccclvj ............ And although the Year when the said Chappel was built is still to be seen in the said Window yet that doth not prove that the said Margery survived her Husband Randle and erected the said Chappel and Monuments For the word qui cannot possibly relate to Margery alone but doth as I conceive in the true meaning thereof relate onely to the said Randle For it appears by an Inquisition taken after the Death of the said Margery that the said Margery held in Dower at the time of her Death Ex dotatione Richardi Bulkeley quondam viri sui the third part of the Moity of the Mannor of Chedle as also Five Messuages in Middlewich One Messuage and Sixty Acres of Land and Wood in Newton near Middlewich Ten Acres of Land in Ashley and Hale Eight Acres of Land in Occleston Six Messuages and Two hundred Acres of Land Meadow and Wood in Whatcroft Six Messuages and One hundred and twenty Acres of Land Meadow and Wood in Holme juxta Davenport the Moity of the Scite of one Water-Mill and Four Acres of Wood in Little Stanthorne and the Moity of the Mannor of Timperley And it is also found by the said Inquisition that William de Bulkeley was the next Heir of the said Margery Now this Inquisition being taken in the Twenty seventh year of King Henry the Sixth and the said Randle Mainwaring together with his Three Sons Sir John William and Randle for the said John was Knighted in the life time of his Father being all Three mentioned as then living in a Deed of mine dated the Saturday next after the Feast of Saint Hillary in the Thirtieth year of King Henry the Sixth and I having also in my custody another Deed dated the Sunday next before the Feast of Corpus Christi in the said Thirtieth year of the said King made betwixt the said Randle Mainwaring the Elder and Sir John Mainwaring Knight his Son on the one party and John of Ashley of the other party concerning a Marriage to be had betwixt Hamnet Son and Heir Apparent of the said John Ashley and Margaret Daughter of the said Sir John Mainwaring which Deed is also mentioned by you Page 334. It is from hence very clear that the said Margery did not survive her said Husband Randle Mainwaring and erect the said Chappel and Monuments therein after the said Randles death There is also omitted by you in your Historical Antiquities Agnes the Daughter of John Mainwaring of Over Peover Esquire who was Sister to Sir John Mainwaring and Wife of Sir Robert Nedham Knight And of this Match there is very good Proof which you have been informed of I having by me the Pictures of the said Sir Robert and Dame Agnes as they were

Cornwal another Base Son of Henry the First stiled Avunculus Regis Henrici Secundi by Hoveden pag. 536. Robert and Ottiwel two Bastard Sons of Hugh Lupus frequently called Filii Hugonis Comitis Cestriae and Ottiwel stiled Frater Ricardi Comitis Cestriae Ordericus p. 602. 783. 870. Geva a Base Daughter of Hugh Lupus stiled in old Deeds Filia Hugonis Comitis and there also she calls Earl Randle her Cosin Monasticon Part 1. pag. 439. Also Richard Bacon Son of another Base Daughter of Hugh Cyveliok calls Randle Blundevil Earl of Chester his Vncle in another Deed as Mainwaring in like manner here stiles him in this Deed Monasticon Part 2. p. 267. Every Man that is but the least versed in Antiquities knows these things to be very usual The Reasons that Amice was a Bastard 1. IF Hugh Cyveliok had no other Wife but Bertred then Amice must certainly be a Bastard for she was not a Daughter by Bertred as is granted on all sides But Hugh Cyveliok never had any other Wife but Bertred Ergo Amice was a Bastard Now the Minor is to be proved by the Affirmer Oportet Affirmantem probare For as yet I never saw the least proof thereof either by Deed Record or any Ancient Historian nor yet any inducement of good reason to incline my belief of it and till this be done it is unreasonable to impose it upon any Mans belief by supposing that he had another Wife for suppositions are no proof at all It is not enough to suppose Amice might be by a former Wife but it must be clearly proved or strongly inferred from solid Reason that it is so and that Hugh had a former Wife Neither is it a sufficient answer hereunto to say That it is unreasonable to conclude all Children Bastards whose Mothers cannot be proved God forbid But in this Case we find a Wife certainly Recorded and a Son and four Daughters who were afterwards Coheirs and carried away all Earl Hugh 's Lands clearly proved by Records and Antient Historians and also Earl Hugh is certainly known to have had many Bastards both Sons and Daughters which gives occasion of strong suspition that Amice was a Bastard she being neither Recorded by any Historian nor ever had or claimed any Land as a Coheir and therefore here is a necessity of proving a former Wife which for my part I believe firmly Earl Hugh never had 2. Whatsoever is given in Frank-marriage is given as a Portion Now the Release of the Service of one Knights Fee in Frank-marriage seems not a competent Portion for a Legitimate Daughter of the Earl of Chester especially for the eldest Daughter for so she must be being of the first venter which always is more worthy then the second if she were at all Legitimate And we find the other Daughters married to four of the greatest Earls in England All which is a strong presumption that Amice was a Bastard and no Legitimate Daughter To this it may be answered That possibly Earl Hugh might give Amice a great Portion in Money though she had no Lands and I say possibly too he might give her no Money or at least nothing considerable Which great Portion in Money when it shall appear to be true may take off the strength of this Argument or Second Reason till then it must be very pressing 3. The Antient Historians of our Nation as Polychronicon writ by the Monk of Chester Henry Knighton the Monk of Leicester and others also Stow and Cambden have Recorded the lawful Daughters and Coheirs of Earl Hugh And so the Record of 18 Hen. 3. And had Amice been a Legitimate Daughter it is likely that these Historians would not all have omitted her but of her there is Altum silentium among all the Historians and Records which I have yet seen though indeed I look upon this onely as a probable not as a sure evincing Argument These were the Reasons which inclined my Opinion to place Amice in that order as I have done but since there are some Learned Men of another Opinion I must leave every Person to the dictate of his own Reason THE DEFENCE OF AMICIA Daughter of Hugh Cyveliok Earl of Chester I Do very much wonder that you should so peremptorily call Amicia a Base Daughter of Hugh Cyneliok unless you had more sure grounds to go upon And though it be onely my task to defend the said Amicia yet I do suppose I shall make it appear before I have done that you go upon no absolute certainty in calling her that was Mother to Richard Bacun Founder of the Priory of Roucester in Staffordshire another Base Daughter of the said Hugh Cyveliok or in calling Geva a Base Daughter of Hugh Lupus At present give me leave to remind you what you have been formerly told viz. That those Heralds that gave to Mainwaring of Peover the quartering of the Earl of Chester's Coat in Queen Elizabeth's time were Mr. William Cambden and Mr. Sampson Erdeswick Persons who very well understood themselves and I do not know why you should so much mislike their boldness and ignorance as you call it for their so doing For though we did not antiently quarter that Coat it not being usual in that age when that match was made for any so to do and that it may perhaps in strictness be true that it doth yet onely belong to those of the whole Blood to Quarter Coats and that to shew their Right yet it being now a common practise for those who are of the half Blood also to do it to manifest That they descend of the same Father that those of the whole Blood do I know not why it should be accounted a crime in us more then in others in the like Case As for your Objecting That Mainwaring was not then an equal Competitor to have married a Coheir of the Ear of Chester the Coheirs being married to Four of the greatest Peers of the Kingdom We do not say That he either was an equal Competitor or that she was a Coheir to Earl Randle she being the Daughter to Hugh Cyveliok by a former Wife and so but half Sister to the said Earl Randle however that could have been no substantial Argument to prove that Amicia was not Legitimate 1. Because sometimes some particular Persons have the fortune to marry Wives far beyond their Degrees or Estates 2. Neither was Sir Ralph Mainwaring so inconsiderable a Person as perhaps you may conceit him to be For besides that Sir Roger Mainwaring Son of the said Sir Ralph did after the death of the said Sir Ralph give to Sir William Mainwaring his younger Son Peover as also some other Lands the said Sir Ralph had also the Lordship of Waburne in Norfolk and the Lordships or great part of Rode Blakenhal Warmincham Northerden Ashton juxta Kelsall Henbury and Pexhull Willaston Great Warford Little Warford Whelock Winnington Cokishall Tatton Senellestune Smalwood and half of Pichmere