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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

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there be any occasion to alter the Common Law or to take it otherways in this particular then they did formerly because since there were Estates in Tail there could be no great occasion to make Gifts in Free-marriages and therefore my Lord Coke says in his First Part of Institutes fol. 178. b. That such Gifts are almost grown out of use and serve now principally for Moot Cases and Questions in the Law that thereupon were wont to arise Neither is there any weight in what you say That it seems to you that in those elder Ages Bastards were reputed of the Blood by the frequent appellation of them by the names of Uncle Brother Daughter Son and Cosin for by the same Reason you should repute them of the Blood now this Age being as civil to them in their expressions as any former Age could possibly be And for the Precedent you give me wherein you say Lands were given in libero maritagio with a Bastard I conceive it will not hold Because it doth not certainly appear that Geva was a Bastard for in all the Records that you cite she is called Earl Hugh's Daughter and in one of them she calls Randle Earl of Chester her Cosin which makes it probable that she was Legitimate especially since I do not find by any Deed Record or Author whatsoever that she is at any time called a Bastard As for your saying That it is plain out of Ordericus p. 787. that Geva was a Bastard because speaking of Hugh Lupus his death he adds these words Richardus autem pulcherrimus puer quem solum ex Ementrude Filia Hugonis de Claromonte genuit I am not satisfied but he might as well mean that he was the onely Son which Earl Hugh had by Ementrude as that he was the onely Child that he had by her For there is no necessity to take the word Solum adverbially neither is it marked as an Adverb in Ordericus his Book though it be so in yours and yet in his Book Adverbs are usually marked And though that Ordericus if his meaning were so might have worded it more clearly yet he many times expresseth himself worse then he doth here and particularly Pag. 871. And though he tells us Pag. 522. that E pellicibus plurimam sobolem utriusque sexus genuit yet he doth not say that Geva was one of them Neither is there any force in what you alledge that probably if Hugh Lupus had any more Legitimate Children by his Wife besides Earl Richard either Son or Daughter that Ordericus would have Recorded them as well as others being indeed his usual method through the whole course of his History For he could have no Legitimate Son but Earl Richard unless he had another Wife besides Ementrude Ordericus being express therein and possibly for some Reasons he might have another Wife besides Ementrude But whether Geva was by a First or second Wife I know no necessity to conclude that Ordericus should Record her I finding no such usual method of his as this which you speak of For he doth not that I see make it his business to Record what Wives or Children the Earls of Chester and other great Men had but onely speaks of them occasionally and so he also doth of some of their Illegitimate Children but if he made it his design to give an exact account of these things he ought to reckon Geva either amongst the lawful doubtful or illegitimate Children of Hugh Lupus And as to your Objection That if Geva had been Legitimate her Issue ought rather to have succeeded into the Earldom of Chester then Randle de Meschines after the death of Richard Earl of Chester That doth not at all follow because it is possible the Earldom of Chester at that time as most times Earldoms anciently were might be Entailed on the Heirs-males onely and then the Male Line being extinct why might not the King confer it as well upon Randle de Meschines who was a near Kinsman as upon a stranger Which later course is also usual at this day And it is very probable that the Earldom was Entailed on the Heirs-males onely for James York in his Vnion of Honor p. 105. says That this Randle was made Earl by Grant of King Henry the First and if so it came not to him by Descent So that all which you here object is fully answered But if it had been so that the Earldom had been to Descend to the Heirs General if Geva was Daughter of Hugh Lupus by another Wife besides Ementrude then the Earldom of Chester would have Descended from Earl Richard to Randle Meschines by his Mother being Aunt of the whole Blood to Richard and not to his Sister Geva or her Issue they being but of the Half Blood to him And whereas you desire me to shew you a Precedent where-ever the Heirs of an Aunt inherited before the Heirs of a Sister both legally born and no Heirs-male left unless in Case of Forfeiture by Treason or some other great cause to hinder the same I shall now shew you where an Honor in such a Case came to the Heirs of the younger Sister and not to the Heirs of the elder Sister which is full as much as if it were done in the Case of a Sister and an Aunt If you peruse the Magazin of Honor Collected by Mr. Bird and inlarged by Sir John Doderidge One of His Majesties Justices of the Kings Bench pag. 96. you will there find That whereas Radulfe Lord Cromwel being a Baron by Writ died without Issue having Two Sisters and Coheirs Elizabeth the Eldest married to Sir Thomas Nevil and Joan the Younger married to Sir Hunt Bourcher He who had married the Younger Sister was called to the Parliament as Lord Cromwel and not the said Sir Tho. Nevil who had married the Elder Sister so that you see no convincing Argument can be brought from the enjoyment of the Earldom by Randle de Meschines however the Case prove to be I do therefore still conceive That it is very clear that Lands or Services never were in any Age passed In libero Maritagio with a Bastard or with any one that was not of the Blood but onely for Term of Life and that with Livery and Seisin and consequently all persons to whom such Deeds or Grants were made unless for life only are certainly to be concluded Legitimate and if you will bring a Convincing Precedent to the contrary do not produce a Record or Deed of Lands or Services given with one that you suppose to be a Bastard or not of the Blood but first clearly prove That the party was certainly a Bastard or not of the Blood by some Deed Record or Ancient History and shew Lands or Services so given with her and then there will be some strength in such a Precedent But what will you say If this Deed which you alledge to be made to Geva will not at all concern Amicia if Geva were a Bastard If