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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

why you call this Gift of Earl Hughs as you do in two several places A Release of the Service of one Knight's Fee Your third and last Reason I conceive hath no weight at all For those Historians and others which you speak of there do not take upon them to give an account of all the Children of Hugh Cyveliok but onely to tell who were the Heirs of Randle Blundevill and of this you are so sensible That you confess this Argument not to be evincing and yet it is as strong as your first Reason But I cannot but wonder when you name Mr. Cambden to be one of those that take no notice of Amicia being you well know that he hath mentioned her in his Britannia in his Description of the County of Chester and though not as a Coheir to her Brother Randle for that she was not yet without the least brand of being a Bastard Also all those Judges and Heralds of whom you have formerly heard and all other persons except your self which have seen my Deeds have from the Expressions therein been fully convinced that she must needs be Legitimate and amongst others that worthy and judicious person William Dugdale Esquire our Norroy King of Arms is of the same judgment as will appear in his Historical Discourse of the Baronage of England which will be shortly ready for the Press In which from the Authorities and Reasons there briefly cited he concludes That Bertred was a second Wife and that Amicia was a Lawful Daughter of the said Earl Hugh by aformer Wife though it be not known who that Wife was and which is worthy observation the said Mr. Dugdale hath heard you alleadge your Reasons to the contrary but did not find them such as to be satisfactory to him I hope therefore that I shall not because of my Relation to that Noble Lady be thought to be Partial or Singular herein since that it appears she stands vindicated by the Sentence of so many knowing and unconcerned persons but it will necessarily follow that you have dealt very severely with your said Grand-mother and that upon such weak Grounds as your Three Pretended Reasons which will not prove her to be a Bastard if those Arguments that were brought on her behalf were all laid aside I have now answered the Objections which you have brought against Amicia the Wife of Sir Ralph Mainwaring but before I conclude I shall acquaint you and the Reader with two Deeds the first whereof doth belong to Thomas Ravenscroft of Bretton in the County of Flint Esquire and the other to Henry Mainwaring of Kermincham in Cheshire Esquire the words whereof do here follow as they were coppied out several years since from the Originals by William Dugdale Esquire SCiant praesentes futuri quod ego Alanus de Boidele dedi quiet ' clam ' fratri meo Willielmo de Boidele haered ' suis Doccliston in feod ' dominicis cum omnibus pertin ' infra Limam Tenend ' habend ' de Domino meo Ranl ' Com' Cestr ' haered ' suis faciend ' servicium de praedict ' terr' sc De quatuor feod ' dimid ' praenominato domino meo Ranl ' Com' Cestr haered ' suis Et ego vero Alanus de Boidele haered ' mei praedict terr cum omnibus pertin ' praenominato Willielmo de Boidele haered ' suis contra omnes homines feminas cum pertin ' warantisab Et quia volo quod hec mea donatio quiet ' clam ' stabilis inconcussa rat ' permaneat praesenti scripto sigillum meum apposui His test ' Domino Ranl ' Comite Cestr ' domino Rad ' de Mainwaringhe tunc Justiciar ' Cestr ' domino Roberto de Monte alto Domino Hug ' Dispensar ' Domino Ham ' Sen ' de Mascy Domino Warino de Vernun Domino Willielmo de Venables Toma fil' Willielmi de Goulborn Petro de Bekering Rob ' tunc persona Gropenhale scriptor ' hujus scripti multis aliis SCiant omnes praesentes quam futuri quod ego Robertus dominus Moaldie senescallus Cestrie concessi praesenti Karta confirmavi domui sce ' Werburge Virginis in Cestria Monachis ibidem Deo servientibus totam Villam de Goostree plene integre cum omnibus pertin ' suis in puram perpetuam elemosynam pro salute anime niee animarum praedecessorum meorum liberam quietam solutam ab omni seculari servicio omni seculari exactione Ita quod in eadem Villa de Goostre nihil ad opus meum vel haeredum meorum retinui praeter elemosynam orationes tantam libertatem in ipsa eadem Villa praedicte domui praedictis Monachis concessi quod in posterum nullus haeredum meorum quicquid libertatis superaddere possit Et ut hec mea concessio rata inconcussa permaneat imperpetuum eam sigilli mei appositione roboravi Hiis testibus Rad ' de Menilwar ' tunc Justiciar ' Ham ' de Masci Gwar de Vern ' Rad ' fil' Sim ' Pho ' de Orreby Sim ' de Thuschet ' Rog ' de Menilwar ' Willielmo de Venables Toma Dispensatore Rob ' fil' Picot ' Petro Clerico Com' Ricardo de Vern ' Rob ' de Menilwar ' Brito Paulum Patr ' de Moberl ' Liulf ' de Twamlow Peers de Surtm ' Ran ' de Praers ' Ricardo de Kingsl ' Jo ' de sancta Maria multis aliis I shall also desire you to take notice of what you your self have observed in your Historical Antiquities pag. 160. how that Earl Randle de Gernoniis as doth appear by the Charter there mentioned did give the Office of Constable of Cheshire in Fee to Eustace Baron of Halton and his Heirs and did constitute the said Eustace to use the words of the said Charter Haereditarie Constabularium supremum conciliarium post me super omnes optimates Barones totius terrae meae As also Pag. 161. how the Baron de Montealto or Moald being Dapifer Seneschal or Steward of Cheshire in Fee had the second place which is also confirmed by several Deeds mentioned by you Pag. 129. 130. 139. 144. and 162. In all which the Constable and Steward are named before the Justice of Chester and all the other Barons which being so it will be difficult to give a Reason if Amicia was but a Base Daughter why Sir Ralph Mainwaring in the Deed abovesaid of Alan de Boidele is named as a Witness next to the Earl of Chester and before Sir Robert de Monte alto or Moald Steward of Cheshire and so many of the other Barons as also in a Deed mentioned in your Book Pag. 139. why the said Ralph Mainwaring is named next to the Countess of Chester and before Roger Constable of Cheshire as also why in a Deed in the 143 Page of your Book the said Ralph Mainwaring is again named next to the said Countess and