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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A48364	An ansvver to the book of Sir Thomas Manwaringe of Pever in Cheshire baronet, entituled A defence of Amicia, daughter of Hvgh Cyveliok, Earl of Chester wherein is vindicated and proved that the grounds declard in my former book, concerning the illegitimacy of Amicia, are not envinced by any solid answer or reason to the contrary / by Sir Peter Leycester ...	Leycester, Peter, Sir, 1614-1678.	1673 (1673)	Wing L1942; ESTC R10789	28,611	95

accounted a crime in your Family more then in others in the like Case True it is as lawful in your Case as any other if your Case be the same with others I say the Quartering of the Coat of a Coheir ought not to be given by any Herald to any but the Coheir of the Whole-blood which in strictness you do confess Is not that Herald then to be misliked both for his boldness and errour who shall at any time give it to the Half-blood but in this Case I believe it will not appear to be given to the Half-blood as you call it unless it be meant of a Half-blood illegitimate Page 23. You say Because Manwaringe was not an equal Competitor to the Coheir of the Earl of Chester could be no substantial Argument to prove Amicia Illegitimate and so you pass to illustrate your Ancestour to have been seized of a good Estate of Lands Whereunto I say I do not urge that for an Argument of her Illegitimacy we shall come to that anon I only there observed chiefly that she was no Coheir which you grant and therefore the Herald ought not to have given to Manwaringe the Quartering of the Earl of Chester's Coat at all which you do grant to be in strictness true and which I have touched immediately before and I shall likewise grant your Family to be a Family of good Quality both at that time and at this present also I should be loth to say to the contrary but as to your note of Dukes and Earls to have been anciently Judges of Chester you should have distinguished of the times for that was not till the Reign of Richard the Second who made Deputies to act in their stead before which time you find no such great Persons Judges there nor from Henry the Seaventh's time downwards Thirdly Page 24. You say The case was not the same with the other Daughters of the Earl of Chester when Rafe Manwaringe married 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 Lincolne 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 became to be his Heirs yet the said Earl Randle having never had Issue the expectation of that Estate added to their other Fortunes 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 My Answer Herein first you beg the Question which was never granted nor can ever be proved That Amicia was of the Half-legitimate Blood to Earl Randle by a former Wife of Earl Hugh but dato hoc sed non concesso It is more rational to imagine that Earl Hugh matching his only Daughter by a former Wife as you suppose in his life-time 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 whose expectation which you 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 Page 25. You say That I acknowledge I have been informed that three eminent Judges and four Heralds are of Opinion that Amice was Legitimate and was also told lately by one whom you hope I have no reason to discredit that since then several other Judges and Heralds have been consulted all which did concur in the same Opinion that Amicia was no Bastard My Answer Whereunto I answer and confess I was so informed but it was you your self who informed me nor did I ever yet see any Opinion under their hands nor their grounds and reasons for such their Opinions attested what can be made of this Let the ingenious Reader judge of the Argument some Judges and Heralds are of that Opinion Ergo she was Legitimate In these Cases all that can be said Pro and Con should have been put indifferently on both sides when any grave Person is to be consulted which hitherto hath been done privately on the one side onely without hearing the Reasons on the other side and you know how Opinions are not rarely given according to the putting of the Case but very frequent and usual when many times even the Lawyers themselves differ in their Opinions But I can compare this to be like nothing more then going about to get hands to a Petition or Certificate It is not Opinions that ought to sway the Judgment of all indifferent Readers but solid Reason And I shall desire to be Confuted with substantial Arguments not Opinions of this or that man And now I come to your Reply against my Answers given to the Arguments for Amicia which I shall fully comprehend in short that the Reader may with less trouble better apprehend the Point Page 30 31. Where you say That my Answer is that it is true the Law is so taken at this day i. e. that Lands cannot pass in libero maritagio with a Bastard but I doubt whether it was so taken in the elder Ages of Henry the Second and upwards and also that I cite Glanvil Chief Justice of England who lived in the time when Amicia lived and that I do also shew you a Precedent where Lands were given by the Father in free Marriage with his base Daughter and I say further that the Common Law in sundry other things is at this day altered from what it was in former Ages long after the time of Henry the Second for which I cite Cooke upon Littleton in several places These are my words Your Reply Pag. 30 31. Hereunto you reply to what I urge out of the Lord Cooke That you conceive the Common Law where not altered by Parliament is the same at this day that it was formerly and you cite Cooke upon Littleton p. 115. b. which should have been fol. 115. b. who saith It is a Maxime of the Law That whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still and so consequently you argue that if it ever were the Common Law that Lands or Services might pass in libero maritagio with a Bastard or one that is not of the Bloud it would be lawful to do so still because that part of the Law is not ousted or taken away by any Statute So that the places which I 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 only that it was taken to be otherwise in those dayes just like some Cases in our Reports which at several

times have been adjudged directly contrary to each other but notwithstanding the Law was still the same My Answer To this I Answer First To the Maxime of Law wherein it is said that whatsoever is not ousted or taken away by any Statute remaineth still wherein the word Ousted must needs be understood disjunctively or conjunctively if disjunctively then the words not ousted must be understood of some other way than by Statute and then it is as much as to say not altered and so implies a common practice of the Law in such cases contrary to what it was formerly If it be understood conjunctively then the words must needs bear this sence that the Law is the same still in all points as it was before except where taken away by Statute And thus understood I shall produce you Cooke against Cooke in his Book upon Littleton fol. 34. § 39. His words are these In ancient time it appeareth by Glanvil l. 6. c. 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 there holdeth which is that a man may endow his wise ad ostium Ecclesiae of his whole Land or of the half or other less part So that here we see the Law in this case is altered and without any Statute ergo the Law is altered without any Statute Also Ibid. fol. 8. a. towards the bottom Of ancient time the Heir was permitted to have an Action of Debt upon a Bond made to his Ancestor and his Heirs but the Law is not so at this day But herein was no Statute made to take it off ergo the Law in that case is altered without any Statute And so in many other Particulars which might be here cited wherefore methinks it is the better exposition of that Maxime that the words be understood disjunctively and so it thwarts not with that which the Lord Cooke saith in these other places and the word or is meerly a disjunctive Your Second Reply p. 31 32. But you go on and say you would come as near me as you can and you 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 atherwise than they now do and if I could prove that they did so in case of free-marriage it would take off your Argument because the ancient Deeds and Grants are to be expounded as the Law was taken to be at the time of the Grant as Cooke upon Littleton saith fol. 8. b. For say you that 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 bloud it would have certainly been observed by some of the Sages of the Law My Answer to your Second Reply I pray you if in former Ages the Law was taken otherwise in some particulars than at this day it is taken which hath now joyned to strengthen it the common practise of the Nation which I take to be the Common Law at this day for many Ages together without any contradiction what rational man can deny but the Law in such particulars is clearly altered For in those Cases I speak not of any altered by Act of Parliament I would ask you whether the Law be now altered or no If it be altered then you are in an errour to say the Law remains the same and if it be not altered then the former Law is still our common Law and not the Common Law as at this day it is taken which is used otherwise at this day than formerly Then our Common Law in the particular cases mentioned and at this day used otherwise than formerly is no Common Law of England because say you the Common Law cannot be altered without an Act of Parliament but remaineth still the same and so the Judges of England in all these cases at this day do not judge aright according to our Common Law I pray you see what absurdities follow hereupon And as to proving of Lands to have passed in free-marriage with a Bastard in the Age of Amicia I have already given you a Precedent for it and the Lands did pass accordingly and shall make it good when I come unto it in its proper place that Geva was certainly a Bastard by as good proof as possibly can be expected in such a Case But more of this when I come to Geva Your third Reply pag. 33. In the next place you have a long Harangue from p. 33 to p. 41. wherein you endeavour to restrain the words of Glanvil which are these Quilibet liber homo quandam partem terrae suae cum filia sua vel cum aliqua alia qualibet muliere dare potest in maritagium and first you begin to prove it by Scripture Deut. 14. where a Liberty was given to the Jews to eat whatsoever their soul desired and yet this must be understood of such meats as were legally clean and allowed them by the Law My Answer to your third Reply I have seldom known nor I believe any other any such Question as this whether Hugh Cyveliok had a former wife to be proved by Arguments of Scripture or Nicety of Law which is meerly a Question of History For the Text urged by you Deut. 14.26 I find no such general Latitude which needs any Exposition as you mention The words are Thou shalt bestow that money for whatsoever thy soul lusteth after for Oxen or for Sheep or for Wine or for strong drink or for whatsoever thy Soul desireth The Text is clearly restringent to those things here mentioned which they were allowed to eat and drink according to their Law What is this to the point in hand ergo Glanvil's words Cum aliqua alia qualibet muliere must be understood to be agreeable to the Law of the Land where he lived that is as you would have it to any except a Bastard or a Woman not of the Donors bloud But how doth that appear to be the Law in Glanvil's time or upwards He was the first who reduced our Law into writing Omnium primus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 reddere aggressus est saith Spelm. in his Gloss p. 333. And it is easie to observe how lame and imperfect our Law was in those times towards what it was in Littleton's time and especially compared with these last ages But in short your Expositions all along to pag. 41. by Bracton or Fleta or others or making Glanvil to fight with himself unless Glanvil's words be interpreted as you would have them I leave to wise men to judge who will take pains to scan them whether they be pertinent For that wherein you say Glanvil contradicts himself because he saith that none can give Lands in remunerationem Servitii sui to hold good after the

no mention of her Heirs and secondly it is given to Geva alone and not unto a Husband with her whereas that given to Manwaringe with Amicia in free Marriage mentioneth their Heirs My Answer to the fifth Reason Though the Lord Cook say That by these words in Connubio soluto ab omni Servitio there passeth but an Estate for life yet he saith not That by these words in libero conjugio passeth onely an Estate for Life nor in Case the words had been in libero Connubio he saith nothing of them although you are pleased to say That the words in libero Conjugio are but like the words in Connubio soluto ab omni Servitio which make but an Estate for Life I think Sir you and I being no professed Lawyers had best to leave these things to the Sages of the Law and notwithstanding the Criticism I beg both your Pardon and my Lord Cooke's too if he should have said it which I do not find that he doth in this Case of Geva for the Lands in the Deed mentioned did descend to her Heirs by Basset and even at this day it is called Drayton-Basset in distinction of other Towns called also Drayton because the Bassets were anciently Lords thereof and this very Deed was taken out of a Manuscript in Arundel-house wherein the old Deeds belonging to the Bassets of Drayton-Basset in Staffordshire were enrolled about the Reign of Richard the Second as you may see it mentioned in my Book Again you say The Deed to Geva is worded as if it intended onely an Estate for Life and is made to Geva her self without the words her Heirs mentioned therein where you are to take notice that this Deed of the first Randle Earl of Chester is but a Confirmation to his Cosin Geva of a former Deed Sicuti Comes Hughes ei in libero Conjugio dedit which Deed may be had the Land passed to her and her Heirs or to her Husband with her and to their Heirs But for certain she and her Heirs by Basset had the same Land however Earl Hugh's Deed did run I add further to your Objection that it was intended but for Life because given to her onely without the word Heirs Cooke upon Littleton fol. 21. b citeth Peter Saltmarsh Case and Fitz Herbert de Natura Brevium fol. 172. that Lands may be given by a Man to his Son in Free-marriage and why not as well to his Daughter alone in Free-marriage which words of Frank-marriage do of themselves create an Estate of inheritance as Cooke saith in the same Page And now we have done with Geva and I appeal to the indifferent Reader whether my Reasons alledged for her Bastardy in my other Book be by you in the least taken off by any solid Answers or Reason to the contrary although in your Book you brand me with an aspersion of her Page 50 51. And now you come to the second Reason alledged To prove that Amicia is legitimate which you say hath its full strength yet and is not at all weakened by any thing I have said For in my computation according to reasonable suppositions it cannot be well affirmed that Hugh Cyveliok was above seven or eight years or thereabout older then his Wife Bertred But by your computation you say possibly he may be 26. or 27. years older whosoever will take pains to scan both our computations will see which is more moderate and reasonable in yours you suppose Maud Earl Hugh's Mother to be born the second year after her Mothers Marriage and Maud Married in the 16th year of her Age and Earl Hugh born in the 17th year of Maud's Age which falls in Anno 1129. and so all in the utmost possibility and if we may compute by possibilities as you do I say Earl Hugh might be but four years older then Bertred but if you will go by strong probabilities that Earl Randle Father of Earl Hugh was Married by Robert Earl of Glocester unto Maude his Daughter thereby to draw him to the Part of Queen Maud his Sister about the very year 1139. before which time we find no mention in our ancient Historians of Randle's actings against King Stephen but in that very year we do and then by some of them stiled Son in Law to the Earl of Glocester but not before that year that I remember I say if we reckon by utmost possibilities Earl Hugh could not possibly be above 16 or 17 years older then Bertred but rationally we may imagine he was not so old by many years and though your ghesses may be a little in the dark yet I think I am about the very time of his Marriage so that if your Argument carry its full strength it is certainly but a little strength if any at all it is but this Earl Hugh was older then Bertred Ergo he had a former Wife and of your account you say you may abate me several years and yet Earl Hugh be a great deal older then his Wife wherein you say true but I can gather no such quantity of years in respect of his Age reasonably to suppose him to have had any former Wife Page 52. The third and fourth Reasons you say are onely urged as concurrent Proof with the Argument brought from the words in libero maritagio So then your Achillean Argument failing all the other fall to the ground to which hath been spoken before Page 52 53. But yet you muster up all your forces to strengthen the third and fourth Reasons for Amicia as Hugh Cyveliok's Countess being witness to the Deed of Amicia in libero maritagio and yet you that take no notice of the Law in ancient times from the Law of later Ages and insist so much upon Law cannot but know a Wife is no good Witness either for or against her Husband and yet both here and in sundry other Deeds we find them put as Witnesses to their Husbands Deeds also Raufe Manwaringe calling his Daughter Bertrede after the name of the Countess methinks he should rather have called her after the name of his former Countess Mother of Amice if Earl Hugh had had any such Wife also Roger Manwaringe in another Deed calling Randle of Chester and Lincolne his Vncle Raufe Manwaringe being with the Earl at Coventry and a Witness to his Charler to his Burgesses there also Roger Manwaringe and Henry de Audley who Married his Sister being Witnesses to the Deed of Randle Earl of Chester and Lincolne concerning the Abby of Deulacres Henry de Audley's being a Witness to the Deed of Robert de Fernans this is far fetcht whose Mother was one of the Sisters and Coheirs to the aforesaid Earl Randle as also Rafe Manwaringe being a Witness to one Deed of Hugh Cyvelioks and to three other Deeds of the said Earl Randle These say you are such circumstances as shew a more great and constant intimacy between the said two families then probably would have been if Amicia had been a

You conceive there is no weight at all in it whereof I am so sensible that I conceive it not evincing nor do those Antient Historians take upon them to give an account of all the Children of Earl Hugh but onely of the Heirs of Randle Blundevill and yet you say this Reason is as strong as my first Reason My Reply I do confess I urged it but for a probable Reason and yet you say it is as strong as the first Reason Then you might have done well to have answered the first better whereunto I am sure you have made no substantial Answer as yet wherein I appeal to all indifferent and judicious Readers who shall read this Book And for the probability of this you say That the Historians take not upon them to give an Account of all the Earls Children but the Heirs of Randle but do you find that they have left out any of his legitimate Children except this whom you suppose legitimate And then you tell me Mr. Cambden hath mentioned Amicia though not among the Co-heirs yet without the brand of a Bastard you know well he is but of very late standing and not an Historian Contemporary with Amicia and so you and I do now mention her And then you tell me over again which I have before Answered that those Judges and Heralds that have seen your Deeds of which I have heard but I am sure I yet know not who they be nor ever saw any thing attested under any of their hands nor their Reasons nor grounds for their Opinion and you mention Mr. Dugdale in particular for whom I have ever had a great esteem as a diligent searcher of Antiquities all which you again and again affirm to be of your Opinion that Amicia was legitimate but because I have before spoken of this Supra pag. 10 11. I shall onely ask here what weight can be drawn from this some Persons are of that Opinion Ergo it is so whole Councels have erred unless like the Romanists you will say The Pope cannot err And perhaps those Persons you mention never heard what is to be said against that Opinion whereas it were but equal that in consultation of Opinions both sides should show what could be said Pro and Con both together which hitherto for ought I know onely one Party hath privately put the Case as he pleaseth I have often told you I would have you confute me with Reason not Opinions for one man may be of one Opinion and another man of another Opinion but it is firm Reason which must sway every mans Judgment Page 69.70 71 c. And lastly you put down two Deeds wherein Sir Raufe Manwaringe Justice of Chester is subscribed Witness before the Barons of Cheshire for which you think it will be difficult to give a Reason if Amice were a Bastard To this I say it will not be difficult at all to give a Reason and much more easie then to give a Reason why Amice should be no Bastard because Sir Raufe Manwaringe is sometime Subscribed before the Barons of Cheshire The Reason I give is this that antiently in those Ages the Justice was put sometimes before the Barons and sometimes after and sometimes after the Constable and Dapifer and before the rest of the Barons as it happened for proof see the Deed in my-Book making the Baron of Halton the prime Baron pag. 160. where the Justice comes after all the Barons also in the Deed of Earl Randle to his Barons pag. 162. where the Justice comes next after the Constable and Dapifer and before the other Barons see also in my Book pag. 130 131. two Deeds made by Hugh Cyveliok In the one the Justice is put after the Constable and Dapifer In the other the Justice is put before them many other like examples may be produced else where I will appeal herein to Mr. Dugdale or to any Antiquary in England and considering the great uncertainty of Subscription of Witnesses in old Deeds sometimes putting one before another in one Deed and again putting the same Person after the other in another Deed sometimes putting Domino prefixed before the names of some Persons in one Deed and omitting the word Domino before the names of the same Persons in another Deed whereof I have spoken pag. 5 6. in the beginning of this Book I say had you well considered or observed these things it was not worth your labour to have added those three or four leafs in the close of your Book And now I appeal to all Readers whether those Grounds and Reasons alledged in my former Book against the legitimacy of Amicia as also to prove the Bastardy of those two other Ladies as you call them Geva and the Mother of Richard Bacun be evinced by any solid Answer or Reason given yet to the contrary And so I take my leave for ever of this Trivial Controversie but shall ever remain Mobberley May 15. 1673. SIR Your affectionate Cosin and very humble Servant PETER LEYCESTER Courteous Reader I Have here in the end of this Book an opportunity to Rectifie some Omissions and Errours in my former Book which escaped me through misinformation of others and desire thee to pardon and amend them as followeth Page 206. after the last line but two should have followed this Also another John Brereton son of George Brereton of Ashley Esq was Baptised at Bowdon the 20th day of June 1576. he was afterwards Sir John Brereton Knight the King's Serjeant at Law in Ireland he died without Issue whose-Widow Married the Lord Chief Justice Bramston Sir John left all his Personal Estate which was great to his Widow and Caius-Colledge in Cambridge where he was educated and to Randle brereton his youngest Brother which Randle lived in London and Married and had Issue by his Wife a Daughter Married to Mr. Bourcher of Glocestershire and a Son called also Randle Brereton who hath an Estate in Lincolnshire and is the onely Issue Male or Heir-male of all the Family of the Breretons of Ashley now surviving 1672. Page 210. line 27. Where these words With the little Fields above lying up to Aston Town-field are totally to be expunged Page 214. line 18 19. Where it is said Daughter and sole Heir of Sir Henry Willoughby Read Daughter and sole Heir to her Mother and Daughter and Co-heir to her Father Sir Henry Willoughby for Sir Henry had three Daughters and Co-heirs Anne after the death of Sir Thomas Aston Married Mr. Gray younger Son of the Earl of Stamford she was by the first Wife of Sir Henry he had also two Daughters by his second Wife Ibidem page 214. line 25. Read He was Loyal to his Prince and raised a Regiment of Dragooners for the King at his own cost and charge and was a Gentleman of good Parts but was unfortunately c. Page 223. The 6 7 8. lines are to be expunged totally Page 233. line 4. There it is said Maud Married Sir