the Elder my Grandfather by the Mother for if he ought of right to Quarter that Coat then must he be descended from a Coheir to the Earl of Chester but that he was not for the Coheirs of Earl Hugh as you see before were married to Four of the greatest Peers of the Kingdom the Earl of Huntington the Earl of Arundel the Earl of Derby and the Earl of Winchester 's Son and Heir who lived not to be Earl Neither was Mainwaring then an equal Competitor to have Married a Coheir to the Earl of Chester and it is plain Ex Placitis 18 Hen. 3. Rot. 14. in the Tower of London where the Coheirs implead John the Scot Earl of Chester for their part there is no mention of Amice claiming any part or any from or under her in the Record Besides all Antient Authors of those times as Polychronicon Matthew Paris Knighton Stow and others would not have omitted her amongst the rest which they have set down had she been a Coheir which also she must needs have been had she been Legitimate for Hugh Cyveliok never had any other Wife but Bertred and she survived him And though Amice in the Deed before mentioned is stiled Filia Hugonis Comitis without the Addition or Note of Bastard it was very usual in those elder ages so to do The like we find of Geva Base Daughter of Hugh Lupus and several others V. Concerning this Bertred the Wife of Hugh Cyveliok I cannot omit the Falsities and Absurdities of some Authors as Powel on the Welsh History p. 295. and Ferne in his Lacy's Nobility p. 53. Both of them calling this Bertred by the name of Beatrix and saying she was the Daughter of Richard Lucy Cheif Justice of England a most gross falsity I am very certain that Hugh Cyvelioks Wife was not Daughter of Lucy nor ever called Beatrix in any old Deed or Record though I find by good authority that there was a Woman called Beatrix Lucy but never Wife of Earl Hugh The Death of Hugh Cyveliok Obiit 1181. THis Hugh Earl of Chester died at Leek in Staffordshire and was buried at Chester Anno Dom. 1181. 27 Hen. 2. Hoveden Pag. 615. With whom Westminster Polychronicon and Cambden inter Comites Cestriae do all agree He was Earl of Chester Twenty eight years and gave the Church of Bettesford to the Prior and Canons of Trentham after the death of William Barba who at the time of this Grant possessed the same a Copy of which Deed I received from Sir Simon Dews Baronet Now because I find that some are displeased at my placing of Amice sometime the Wife of Ralph Mainwaring Judge of Chester among the Base Issue of Hugh Cyveliok Earl of Chester and also that I am informed that three eminent Judges and four Heralds are of opinion That she was Legitimate and not a Base Daughter of Earl Hugh It is very necessary that I put down here my Reasons why I have so placed her protesting withal that I have not done it out of any prejudicate opinion or calumny intended in the least but onely for the truths sake according to the best of my judgment and that after a long and diligent scrutiny made herein for I must ever acknowledge my self to be extracted out of the Loyns of this Amice by my own Mother but you know the old saying of Aristotle Amicus Plato Amicus Socrates Sed magis amica veritas Neither were Bastards in those elder Ages of such disrepute as now in our days Memini me alicubi legisse saith Spelman in his Glossary on the word Bastardus Priscos septentrionales Populos etiam spurios admisisse in successionem and where he farther tells us that King William the Conqueror began his Letter to Alan Earl of Little Britain as he did many other more in these words Ego Willielmus cognomento Bastardus Of which Title it seems he was not ashamed otherwise he would never have used it himself And therefore the Question being no more then this Whether Amice was a Base Daughter or no I will first answer those Reasons which seem to be the chief ground of those worthy Persons abovesaid who think Amice was no Bastard and then in order set down my own Reasons why I conceive her to be a Bastard submitting my self wholly to the judgment of all Learned Persons herein The Reasons that She was no Bastard FIrst Our Common Law alloweth not that any Lands can pass in libero Maritagio with a Bastard Daughter Coke upon Littl. fol. 21. b. And therefore Amice having Land given with her in libero Maritagio by the Deed it must be presumed that she was no Bastard Answ To which I answer That it is true the Law is so taken at this day with us but that the Law was so taken in the elder ages of Henry the Second when Hugh Cyveliok lived and upwards I very much doubt and if we mark well this Grant it is the Grant of Earl Hugh to Ralph Mainwaring with Amice his Daughter in Frank-marriage of the Service of Gilbert Son of Roger to wit the Service of three Knights Fees by doing the Service of two Knights Fees to the said Earl and his Heirs which is rather a Release of the Service of one Knights Fee then the Grant of any Land But to pass by this I say That the Common Law in sundry things is altered at this day from what it was in former Ages long after Henry the Second Coke upon Littl. fol. 34. Sect. 39. Coke ibid. fol. 3. a. fol. 8. a. At the bottome of the Page and on the other side b at the bottome Fol. 26. b. Sect. 29. and infinite other particulars may be cited And that in this particular also of passing Land in libero Maritagio with Bastards the Law seems clearly to be altered herein since the Reign of Henry the Second For the common practise I take to be the Common Law and I shall give you here one Precedent made about the Raign of King Stephen and doubtless many others might be mustered up from those elder ages if any curious person would take pains to search old Deeds and Records which Deed I received from Sir Simon Dewes transcribed out of a Manuscript in Arundel House in London belonging antiently to the Barons of Stafford wherein the old Charts belonging to the Bassets of Drayton-Bassets in Staffordshire where inrolled about Richards the Second's time Ibid. fol. 67. a. Ranulfus Comes Cestriae Willielmo Constabulario Roberto Dapifero omnibus Baronibus suis hominibus Francis Anglicis totius Angliae salutem Sciatis me dedisse concessisse Gevae Ridell Filiae Comitis Hughes Draytunam cum pertinentiis in libero conjugio sicuti Comes Hughes ei in libero conjugio dedit concessit Et teneat bene in pace honorifice libere ut melius liberiûs tenuit tempore Hugonis Comitis aliorum meorum antecessorum eisdem consuetudinibus
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
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
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
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
you peruse what my Lord Coke upon Littleton says pag. 21. b. he will there tell you That these words In liberum Maritagium are such words of art and so necessarily required as they cannot be expressed by words equipollent or amounting to as much As if a Man give Lands to another with his Daughter In connubio soluto ab omni servitio c. yet there passeth in this Case but an Estate for Life for seeing that these words In liberum Maritagium create an Estate of Inheritance against the general Rule of Law the Law requireth that they should be legally pursued And in this Deed to Geva the words are not In liberum Maritagium but In libero Conjugio and so are but like the words In connubio soluto ab omni servitio which make but an Estate for Life and so might be passed either to a Bastard or any other person whatsoever And if you look well on the Deed to Geva it is worded as if it intended onely an Estate for Life there being no mention of her Heirs and running also in the singular number Et teneat bene in pace c. Vt melius liberius tenuit c. Also if you observe my Lord Coke upon Littleton a little before on the same Page he will tell you that Four things are incident to a Frank-marriage The first whereof is That it be given for consideration of Marriage either to a Man with a Woman or as some have held to a Woman with a Man and with this Bracton lib. 2. cap. 7. doth accord And the fourth thing is That the Donees shall hold freely of the Donor till the fourth degree be past with which the old Treatise called Fleta lib. 3. cap. 11. doth agree For both which Reasons this Gift cannot be a Gift in Frank-marriage because what is here given is given to Geva alone and not to an Husband with her as also there are here no Donees but one Donee onely and the Estate was not to continue until the fourth degree was past but was onely an Estate intended for the Life of Geva as appears before whereas what was given by Earl Hugh to Ralph Mainwaring with his Daughter Amicia and by Ralph Mainwaring to Henry de Alditelegh with his Daughter Bertred was given in Free-marriage and their Heirs are mentioned in both the Deeds It remains therefore clear That the Deed to Geva was not a Gift in Frank-marriage and is also very uncertain whether Geva was a Bastard as you suppose The second Reason alledged to prove That Amicia was Legitimate hath also yet its full strength and is not at all weakned by any thing that you have said For I think it will still appear that Earl Hugh was much Elder then his Wife Bertred and therefore probably had a former Wife who dying and leaving him no Issue-male it is no wonder at all if he that had so great an Estate did afterwards marry a Lady that was very much younger than himself And though you do affirm That Earl Hugh could not be above Seven or eight years older then Bertred his Wife I suppose I shall make it appear that there might be many more years betwixt them and that from the Argument upon which you your self do reckon viz. The Marriage of Robert Earl of Glocester with Mabill Daughter and Heir of Robert Fitz-Haimon For whether the said Robert Earl of Glocester according to Selden married the said Mabill in the year 1109. or according to Stow in the year 1110. The said Mabill might possibly have Maud her second Daughter in the year 1112. Which Maud if she was married in the year 1128. when she was Sixteen years of Age to Earl Randle de Gernoniis might have her Son Hugh Cyveliok in the year 1129. Which if true the said Earl Hugh was Fifty two years of age at his death for he died in the year 1181. And if so then he was four years above twice the age of Bertred for she was aged but Twenty four years when the said Earl Hugh died as appears Rot. de Dominabus pueris c. In Scacc. penes Remem R. sub Tit. Linc. Rot. 1. And it is certain That the said Earl Hugh was Earl of Chester about four years before his Wife Bertred was born besides what age he was of when his Father died But I may very well abate you several years of this accompt and yet Earl Hugh be a great deal older then his Wife Bertred And as to the Third and fourth Reasons they were onely urged as concurrent Proof with the Argument brought from the words In libero Maritagio yet I conceive there are many more circumstances than you take notice of And therefore when I have observed them all viz. That in the first Deed Hugh Cyveliok's Countess is a Witness by which the said Earl gives Services to the said Amicia in Free-marriage and calls her his Daughter And in the second That Ralph Mainwarings Daughter is also called Bertred after the Countess and Randle Earl of Chester a Witness to what was given with her in Free-marriage to Henry de Alditelegh who was Great Grand-father to the Famous James Audley that warred in France And in the third How Roger Mainwaring in his Gift to the Monks of Deulacress calls Randle Earl of Chester and Lincoln his Uncle and how as appears in Mr. Dugdale's Antiquities of Warwickshire pag. 88. Ralph Mainwaring was with the said Earl at Coventry and a Witness to his Charter to his Burgesses there as also how Roger de Meinwarin and Henry de Aldithele who married his Sister Monast Angl. Part 1. pag. 891. are Witnesses to the Deed of Randle Earl of Chester and Lincoln concerning his Abbey of Deulacress as also how the said Henry de Audley Monastic Angl. Part 2. pag. 509. was a Witness to the Deed of Robert de Ferraris whose Mother was one of the Sisters and Coheirs to the aforesaid Earl Randle as also how Raph Menilwaringe or Mainwaring as appears by your Book Part 2. pag. 130. 131. 139. 143. and 144. is a Witness to one Deed of Hugh Cyvelioks and to three other Deeds of the said Earl Randle who in some of them is also stiled Duke of Britain and Earl of Richmond I shall leave it without any more words to the Reader to judge whether these Circumstances be not such as do shew more great and constant intimacy betwixt the said Two Families then probably would have been if Amice had been a Bastard and if so they strongly concur to prove her Legitimate which is all the use that is made of those Arguments And although you Object That you frequently find in Histories and Records that Bastards are called Cosin Brother Uncle Son and Daughter I grant it to be true yet that is either done where the persons came to be very great as Robert Earl of Glocester did or else are called so by those that write the Histories of them or else are so termed
by their Relations who out of their Humility did condescend so to stile them upon ordinary occasions though it were not their due But I believe you can hardly find one that you can certainly prove to be a Bastard or the Son of a Bastard who doth presume in a Deed to call so great a person as the Earl of Chester was his Brother or Uncle unless he came to be a very great person himself Also I do verily believe that Richard Bacun's Mother was not a Base Daughter of Hugh Cyvelioks nor any Daughter of his at all because as you may see Monast Angl. Part 2. pag. 267. When Richard Bacun did found the Priory of Roucester in Staffordshire his Uncle Randle Earl of Chester was then living and a William was then Archbishop of York and one whose name did begin with R. was then Bishop of Chester but if the Catalogue of Archbishops and Bishops at the end of Isaackson's Chronology be right there was no William Archbishop of York during the life of Randle Blundevile nor any Man Bishop of Chester whose Christian name began with R. except Richard Peche who died in the year 1182. At which time Randle Blundevile could not be of age to Seal any kind of Deed because Bertred the said Randle's Mother was then but about Twenty five years of age I rather think that Bacun's Uncle mentioned Monastic Angl. Part 2. pag. 267. was Randle de Gernoniis for he was Earl from the year 1128. to about the year 1152. And in the year 1143. as Isaackson says William Sisters Son to King Stephen was Archbishop of York but was ousted of it again till about 1152. or 1153. And Roger Clinton from the year 1128. until the year 1149. was Bishop of Leichfield and Coventry which Bishop in elder ages was the same with the Bishop of Chester But that Randle Earl of Chester who is mentioned Monast Angl. Part 2. pag. 268. was indeed Randle Blundevile who was Earl from about the year 1180. till about the year 1232. Roger Constable of Chester who lived in the time of no other Earl Randle being a Witness to the said Deed But what the said Randle Blundevile did was but by way of Confirmation which in former times was very usual to be obtained from Princes several Generations after as to instance in one Case instead of many If you read Monastic Angl. Part 2. pag. 24 25. you will find King Henry the First Reciting and Confirming what had been given to the Priory of Huntendune and Pag. 27. you may find King Henry the Third doing the like and yet there was a greater space betwixt King Henry the First and King Henry the Third than there was betwixt Randle de Gernoniis and Randle Blundevile So that you may see such great persons as these may have some Children which our Historians take no notice of And you may also discover upon what slender Grounds you have charged Richard Bacun's Mother with Bastardy she being so far from being a Base Daughter to Hugh Cyveliok that she was no Daughter of his at all but she was Sister to Randle de Gernoniis and Daughter to Randle Meschines But I shall now come to Answer the Reasons that you bring to prove That Amice was a Bastard And your first is this If Hugh Cyveliok had no other Wife but Bertred then Amice must be certainly a Bastard for she was not a Daughter by Bertred as is granted on all fides But Hugh Cyveliok never had any other Wife but Bertred Ergo Amice was a Bastard And you say the Minor is to be proved by the Affirmer For Oportet Affirmantem probare To this I say First That by this Rule you your self are as much bound to prove her a Bastard as I am bound to prove that Hugh Cyveliok had a former Wife for you as clearly affirm that as I affirm the other and there is no reason why Suppositions should pass for Proofs any more in your Case then they should do in mine Secondly That less Proof by many degrees will serve to prove a thing that was done long since then will be required to prove that which was done lately To instance in one Case which may serve instead of many If you be to prove a Deed that was lately Sealed it will be expected you produce the Witnesses who were present at the Sealing and Delivery thereof If your Deed was sealed a good while ago the proving of the Hands will be required But if the Deed be so old that none alive could know the Hand-writing of the Witnesses then the Deed carries its own Proof with it And the like reason there is in all Cases of Antiquity and especially in those that are so very ancient as this is For if I did onely prove her called a Daughter being it is so long since she ought to be presumed Legitimate unless the contrary do appear For the proving she was not by Bertred does not prove that she was a Bastard but onely proves that she was either a Bastard or else by a former Wife And our Law at this day is That a Bastard cannot be proved a Bastard but in his life time and so it anciently was also as appears by the Old Treatise called Fleta lib. 6. cap. 39. sect 14. where it is thus said Si autem post mortem alicujus apponatur Bastardia non allocabitur cum defunctus ad talem exceptionem respondere non poterit Now if a Person cannot be proved a Bastard immediately after his death because he cannot answer for himself What reason is there to charge Amice with Bastardy so many hundred years after her decease Thirdly I do conceive that the Passing of Services In libero Maritagio with Amice doth absolutely prove that she was a lawful Child and by consequence by a former Wife Also if you take notice of what Sir Henry Spelman writes in his Glossary on the word Bastardus you will find him quoting Coustum du Normand Artic. 77. in Annot. thus Quoties enim agitur de honore vel commodo Filiorum appellatione Filiorum non comprehenduntur Bastardi I suppose therefore in this Case Amice would not have been stiled as she is in the said Deed unless she had been a Legitimate Daughter Fourthly If this Argument of yours would hold as you have framed it we should have almost nothing but Bastards in the Ancient times For if all must be Bastards if we could not tell who their Mothers were nor directly prove their Fathers married we might then conclude most persons to be Bastards that lived in the First and second Centuries after the Conquest I shall not offer to put the Case upon any other Family but my own though it doth reach a multitude of others But as to my own if I mistake not I find Eight persons whose Wives we are altogether ignorant of and Six of those persons left Issue all which Issue by your Argument would be Bastards which I am
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