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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

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

as also other Lands in Cheshire the most of which came to Sir William Trussel who about Edward the First 's time married Matilda the sole Daughter and Heir of Sir Warine Mainwaring Son of Sir Thomas Mainwaring Son of Sir Roger Son of the said Sir Ralph and Amicia And the said Sir Ralph was Cheif Justice of Chester which antiently hath been a place of that great repute that Dukes of York Glocester Exeter and Ireland and Earls of Nottingham Wiltshire Suffolk Shrewsbury and Derby besides other great Persons have heretofore enjoyed the same 3. Neither was the Case the same with the other Daughters of the Earl of Chester when Ralph Mainwaring married with Amicia as it was afterward for Amicia was married in the life time of her Father Earl Hugh whereas those Four came to be such great Fortunes upon the death of their Brother Randle Earl of Chester and Lincoln without Issue to whom they then became Heirs they being his Sisters of the whole Blood and though all or most of them were married before they came to be his Heirs yet the said Earl Randle having never had Issue the expectation of that Estate added to their other Portions must needs make them very considerable Fortunes whereas Amicia was but of the half Blood being a Daughter of Earl Hugh by a former Wife And whereas you do acknowledge that you have been informed That Three eminent Judges and Four Heralds are of opinion that Amicia was Legitimate and not a Base Daughter you received that information several years ago but you were also lately told by one whom I hope you have no reason to discredit that since then several other Learned Judges and Heralds had been consulted All which did concur in the same opinion that Amicia was Legitimate But before I come to the Reasons that are by you alleaged either for or against Amicia give me leave to recite these Three Deeds following that those who read them and the Reasons on both sides may clearly understand the full State of the Case HVgo Comes Cestr ' Constabular ' Dapifer ' omnibus Baronibus suis Vniversis Ballivis hominibus suis Francis Anglicis tam praesentibus quam futuris salutem Sciatis me dedisse concessisse hac praesenti Karta mea confirmasse Radulpho de Menilwarin cum Amicia Filia mea in libero maritagio servitium Gilib filii Rogeri scilicet servitium trium Militum faciendo michi servitium duorum Militum ille haeredes sui michi haeredibus meis quare volo firmiter praecipio ut nullus super hoc eum vel haeredes suos vexet vel amplius quam servitium duorum Militum de hoc praedicto tenemento requirat Teste R. Abbate Cestr Bertreia Comitissa Cestr Sim. Thuschet Rogero de Livet Gilib filio Pigot Rob. fratre suo Frumb de Ridford Willielmo de Meinilwarin Rob. filio Ham. Bettr Cam. Rob. de Meinilwarin Ran. de Lee Rad. Clerico Petro Clerico qui hanc Kartam fecit multis aliis apud Lee. RAdulfus de Meidnilwar ' omnibus praesentibus futuris ad quos praesens scriptum pervenerit salutem Saiatis me dedisse concessisse praesenti carta mea confirmasse Henrico de Alditelegh in liberum maritagium cum Bertrea filia mea Smelewde cum pertinentiis Senellest ' Cum pertinent dimid ' Pichemere cum pertinentiis suis i. Marc. de redditu annuo in Civitate Cestr ' de terra quae fuit Fagun quam Robert ' filius Ermwi de me tenuit illi haeredibus suis qui de dicta Bertrea filia mea pervenient habend ' tenend ' de me haeredibus meis in feodo haereditate libere quiete plene pacifice in bosco plano in pratis pascuis in aquis viis in semitis in vivariis in molendinis in omnibus locis libertatibus praedictis terris pertinentibus sicut liberum maritagium melius liberius teneri pot ' Et ego haeredes mei illi dictis haeredibus suis contra omnes homines dictas terras Warrantizabimus Test ' Ran ' Com' Cestr Hug ' Com' Vltoniae Phil ' de Orreby tunc Justic Cestr. Joh. de Ptell ' Hug. Malebiss Ric. de Vern Ran. de Meidnilwar Clerico Lidulf de Tuaml ' Rob. de Periis Ric. de Kingest Norm Pant. Tho. de Orreby Alured de Sulinni Pet. Chan. Gg. de Aldith Ric. de Rodest Clerico multis aliis OMnibus hanc Cartam visuris vel audituris Rogerus de Menilwarin aeternam in Domino salutem Noverit Vniversitas vestra me pro salute animae Domini Ranulphi quondam Comitis Cestriae Lincolniae Avunculi mei prosalute animae meae animarum antecessorum successorum meorum dedisse concessisse hac praesenti Carta mea confirmasse Deo Beatae Mariae Abbati Monachis de Deulacresse eorum Grangie de Biveleg in liberam puram perpetuam Elemosynam liberam communam in bosco meo de Pevere scilicet Vt accipiant de eodem bosco husbot haybot rationabiliter per visum alicujus forestariorum meorum quantum necesse habuerint sine impedimento aeriarum nisorum meorum ubicunque nidificaverint Praeterea dedi eis liberam pessionem quietam de pannagio quinquaginta porcis quandocunque voluerint in praedicto nemore meo de Pevere pro hac autem donatione concessione mea Ego Rogerus praedictus haeredes mei de praedictis Abbate Monachis de Deulacresse nichil exigere poterimus nisi orationes suffragia ordinis Cisterciensis Ego vero haeredes mei sepedictam donationem concessionem meam sepedictis Abbati Monachis Grangie de Biveleg contra omnes gentes Warrantizabimus imperpetuum Et ut haec donatio mea rata inconcussa in sempiternum perseveret eam praesentis Cartae testimonio Sigilli mei impressione roboravi Hiis testibus Willielmo de Menilwarin Willielmo Capellano de Lauton Ricardo de Moston Bened. de Cawdray Johanne de Motlawe Willielmo de Pevere Hugone de Weloc Nicolao de Wereford Gilberto Gekell aliis And now I shall consider of your Answer to the first Reason on the behalf of Amicia which Reason I think should have been expressed to this or the like effect viz. Our Common Law neither now doth nor heretofore ever did allow that Lands or Services could be passed In libero Maritagio with a Bastard Danghter by the Reputed Father because a Bastard is not De sanguine Patris And therefore Amicia having Services given with her In libero Maritagio by her Father it necessarily follows that Amicia was no Bastard To which your Answer is that it is true the Law is so taken at this day but you much doubt whether it was so taken in the elder Ages of Henry the Second and upwards and to make good what you say you cite my Lord Coke upon Littleton in

libertatibus Testibus Gilberto Filio Ricardi Adelizâ forore meâ Willielmo Blundo Alexandro de Tresgor Rogero de Bellocampo Willielmo de Sais Roberto de Sais Ricardo Filio Aluredi Hugone Filio Osberti Henrico de Chalder Apud Saintonam Wherein Geva is called Daughter of Earl Hugh Lupus as Amice in that other Deed is termed Daughter of Earl Hugh Cyveliok Now that Geva was a Bastard is very plain out of Ordericus a Man that lived in that very age he tells us Lib. 10. pag. 787. speaking of Hugh Lupus his death Richardus pulcherrimus puer quem solum ex Ermentrude Filia Hugonis de Claromonte genuit c. Richard a brave youth whom onely Hugh Lupus begot on Ermentrude Daughter of Hugh de Claremonte c. Nor can this be restrained to the onely Son for then it must have been otherways expressed and if Hugh Lupus had any other Son or Daughter by Ermentrude then cannot Richard be said onely to be begotten on her by Earl Hugh and so Geva was a Bastard or else Ordericus lies Also the same Author tells us Lib. 4. p. 522. that Hugh Lupus had also many Base Sons and Daughters by several Strumpets who were almost all swept away by sundry misfortunes and very probably if Hugh Lupus had any more Legitimate Children by his Wife besides Earl Richard either Son or Daughter Ordericus would have Recorded them as well as he hath put down others in like Nature being indeed his usual method through the whole course of his History And had Geva been Legitimate then her Issue ought rather to have succeeded into the Earldom of Chester then Randle de Meschines after the Death of Richard Earl of Chester for as much as the Sister and her Heirs ought to inherit before the Aunt and her Heirs and howbeit many Earldoms have descended to the Heirs-males and not to the Heirs General yet in this case were no Heirs-male but two Females an Aunt Legitimate who had it and a Sister not Legitimate And show me 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 Secondly Add to these the words of Glanvile Cheif Justice of England who lived under Henry the Second in that very age with Amice Lib. 7. cap. 1. Quilibet liber homo quandam partem terrae suae cum Filia sua vel cum aliqua alia qualibet muliere dare potest in Maritagium sive habuerit haeredem sive non velit haeres vel non imò eo contradicente And if a Man might give Land then in Free-marriage with any Woman whatsoever then he might give it to his Bastard and then the Law is now changed for now it must be of the Donors Blood and a Bastard is now said not to be of the Donors Blood Quasi nullius Filius and it seems to me that in those elder ages Bastards were reputed of the Blood by the frequent appellation of them by the names of Vncle Brother Daughter Son and Cosin Besides our Laws were then imperfect dark and obscure in most things till Bracton under King Henry the Third compiled the Body of our Laws and brought them into a method And now I have done concerning this cheif Reason whereupon those worthy Judges grounded their Opinions and we daily see Opinions of Lawyers follow the putting of the Case which many times upon mature deliberation and hearing of the Case well argued may then be of another Opinion Now follow the Arguments of lesser moment which I perswade my self were no Grounds for the Judges aforesaid II. THe disparity of the years between Hugh Cyveliok and Bertred his Wife 〈◊〉 may suppose he had a former Wife for Bertred was but Twenty six years old at the Death of Earl Hugh 1181. as appears by the Inquisition taken 30 H. 2. 1183. after the death of Hugh Cyveliok and Hugh was Earl of Chester Twenty eight years which was one or two years before Bertred was born besides what years were run up of his age before his Father Randle died which may be supposed to be a competent term of years and then it is probably he had a former Wife and that he staid not unmarried so long as till Bertred was fit for marriage Answ Now let us examine the Matter a little it will give us some light Robert Earl of Glocester married Mabill Daughter and Heir of Robert Fitz-Haimon Anno Dom. 1110. So Stow in his Chronicle See also Seldon 's Tit. Hon. pag. 647. By her he had Issue four Sons and two Daughters Maud the younger Daughter married Randle de Gernoniis Earl of Chester Father to Hugh Cyveliok Vincent upon Brook p. 216. Now suppose we Maud to be the fourth Child probably she was not born till about the year 1117. or thereabout and that about the year 1139. she was married to Earl Randle whereby Robert Earl of Glocester strengthned his party for Maud the Empress at that time she cannot well be supposed to be above Twenty two years old if she were so much Now Earl Randle died 1153. So that Hugh Cyveliok could not possibly be above Twelve years old at his Fathers death he might be much less But suppose we in a middle way that he was six years old at his Fathers death which is more then can be well affirmed then could not Earl Hugh be above Seven or eight years elder then Bertred his Wife And what great matter is this I my self was eight years older then my Wife when I was married but it is much more probable that he never had any other Wife because he had many Bastard Sons and Daughters whose heat of youth might by a very timely marriage have been possibly prevented or at least asswaged in some measure III. Bertred the Wife of Hugh Cyveliok was a witness to the Deed in Frank-marriage with Amice and Amice had a Daughter called Bertred after the name of the Countess Ergo Probably Amice was no Bastard Answ Truly this is of so little weight that it will need no answer for I yet apprehend no reason in it IV. Roger Mainwaring Son of Ralph Mainwaring calls Randle Blundevil Earl of Chester and Lincoln his Vncle in another Deed wherefore it is to be supposed that Amice was no Bastard otherwise Roger durst not have presumed to have called the Earl Vncle Answ Histories Deeds and Records are full of Examples in this nature where we find Bastards frequently called Cosin Brother Vncle Son and Danghter For example Robert Earl of Glocester Base Son of King Henry the First is frequently called in Histories Brother to Maud the Empress Hoveden p. 553. He is also so stiled in a Deed made by Maud the Empress her self Seldon 's Tit. Hon. p. 649. Called also Cosin to King Stephen Ordericus pag. 922. Reginald Earl of

several places as also Glanvile Cheif Justice of England who lived in the same time that Amicia did and you also alledge that you have found a Precedent where Lands were given by the Father in Free Marriage with his Base Daughter To what you urge out of my Lord Coke I do thus say That I do conceive the Common Law where not altered by Parliament is the same at this day that it was formerly and therefore my Lord Coke on Littleton telling us Pag. 115. b. that it is a Maxim of the Law That whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still I might thence argue That if it had ever been at the Common Law that a Man might have given Lands or Services In libero Maritagio with a Bastard or one that is not of the Blood that it would be lawful to do so still because that part of the Law is not ousted or taken away by any Statute but a Man cannot do so now And therefore the Common Law never was that a Man might give Lands or Services with a Bastard in Free Marriage or to one that was not of the Blood So that those places which you have cited do not prove That the 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 otherwise in those days and it is but just like some Cases in our Reports which have at several times been adjudged directly contrary to each other but notwithstanding that the Law was still the same But that I may come as near you as I can I shall acknowledge that though the Common Law was ever the same where not altered by Parliament yet in former Ages they did in some particulars take the Law to be otherwise then they now do and if you could prove that they did so in this Case of Free Marriage it would take off much of the strength of this Argument 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 But this is so far from making against my opinion that I think it doth add very much strength thereto for if it had been taken in former Ages that Lands might have been given in Free Marriage with a Bastard or one not of the Blood it certainly would sometime or other have been so observed by some of the Sages of the Law for where the Law hath been taken in one Age after one manner and in another age after another manner it is so remarkable that it could not pass unobserved by all As to what you alleage out of Glanvil who says Quilibet liber homo quandam partem terrae suae cum Filia sua vel cum aliqua alia qualibet muliere dare potest in Maritagium I do conceive it is the same thing in Law and shall be so intended as if it had been expresly said With any Woman of his Kinred and that for these Reasons First Because though such kind of Expressions seem to be Universal and without any exception at all yet they shall not be so largely taken but shall be expounded so as may agree with the Laws of that Kingdom or Nation to which they particularly do relate and for this I shall give you an example out of Scripture it self In the Fourteenth Chapter of Deuteronomy and the Twenty sixth Verse there was a Liberty given to the Jews in some Cases and at some of their Feasts to eat whatsoever their Soul lusted after and whatsoever their Soul desired And yet this was not to be expounded universally of all Meats whatsoever in case they desired the same but must be meant onely of such Meats as were legally clean and allowed them to eat by their Law And thus when we also say That any Man that hath Money enough may buy Lands when he pleaseth it shall not be understood of any Man whatsoever For a Traytor or a Jew or one that is convicted of Felony or an Alien cannot purchase Land in England but it shall be understood of one that is by Law enabled so to do And so in like manner the words Cum alia qualibet muliere must be understood onely of such a Woman as is capable of such a gift which a Woman that is a Bastard or not of the Blood or a Jew or an Alien c. is not For in these kind of Gifts as Mr. Bracton tells you Lib. 2. cap. 11. the Land so given is Liberum tenementum uxoris non viri cum non habeat nisi custodiam cum uxore Secondly Because I do conceive that Glanvil hath immediately contradicted himself unless by these words Cum aliqua alia qualibet muliere he understands a Woman that is of the Blood of the Donor For he tells us in the same Chapter and the very next words to those that you cite That none can give Lands in remunerationem servitii sui to hold good after the death of the Donor unless there be Seisin in the life time of the Donor which is untrue If a Man having a mind so to reward his Servants can give Lands with his Woman-servant to a stranger or with his Woman-servant to his Man-servant in Free Marriage For where Lands are given In libero Maritagio according to Law there needs no Seisin and where they are given contrary to the Law viz. to one not of the Blood of the Donor Seisin doth onely make it an Estate for Life as my Lord Coke says in his Institutes Part 1. pag. 21. b. So that it seems clear Glanvil by the words Cum aliqua alia qualibet muliere understands one of the Blood of the Donor as well as I hope hereafter to prove that Bracton doth by the words Cum aliqua muliere Thirdly Because that though Glanvil lib. 7. cap. 1. says A Man may give part of his Heritage to his Bastard and that also Bracton in his Second Book and beginning of his Seventh Chapter tells us That Lands may be given Bastardo in Maritagium cum aliqua muliere yet neither of them hath one word at all to prove That Lands may be given to a Man cum Bastarda whereas in this Case of Frank-marriage the party with whom the Land is given not the party to whom the Land is given is the principal thing that is considerable herein Fourthly Because my Lord Coke in the First Part of his Institutes fol. 21. b. tells us That if the King give Land to a Man with a Woman of his Kinred in Frank-marriage and the Woman dieth without Issue the Man in the Kings Case shall not hold it for his life because the Woman was the cause of the Gift but it is otherwise in the Case of a common Person And to prove this in the Margent he cites 9 H. 3. Dower 202. Whereas if