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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

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

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

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

confident you cannot nor will not suppose I shall instance onely in one viz. Roger Melinguarin who in the Reign of King Henry the First as you may see in the First Part of Monasticon Anglicanum p. 985. gave Plumley a place in Cheshire near to Peover to the Abbey of S. Werburge at Chester and as it appears by the said Record the said Roger Mainwaring had Three Sons William Randle and Wido Now if you should affirm That the said William Randle and Wido were Legitimate which I verily believe you will not scruple to do I could thus frame your own Argument against you If Roger Melinguarin had no Wife then William Randle and Wido Sons of the said Roger were certainly Bastards But Roger Melinguarin aforesaid had no Wife Ergo c. Now if this Argument would hold against Amicia it would also hold against these three Children of Roger Mainwaring and indeed against all other persons whose Fathers we could not directly and interminis prove to have been married the Proof lying on the Affirmers side the Absurdity of which is so great that you your self cry God forbid all Children should be concluded Bastards whose Mothers cannot be proved But if it be possible for a Man to have one Wife and we not know who she was Why may not a Man have two Wives we be ignorant who the former Wife was Yea but say you 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 Ancient Historians and also Earl Hugh is certainly known to have many Bastards which gives occasion of strong suspition that Amice was a Bastard and therefore here is a necessity of proving a former Wife which you firmly believe Earl Hugh never had For answer hereunto I say that I do believe if Randle Blundevile had left any Issue Male you had not met with such Proof of the Four Sisters his Coheirs as you now do For the falling of that great Estate to them they being of the whole Blood to their Brother is the occasion of their being Recorded and so much taken notice of by Historians And though this Earl Hugh their Father had some Issue that was not lawful as many of the great persons of that age had yet that hinders not but he might have two Wives neither had he so many Bastards as you lay upon him for I have shewed before That Richard Bacun's Mother was not any Child of his And I do conceive I have by necessary consequence proved That the said Earl Hugh had a Wife who was Mother to Amicia though we cannot tell who she was And it is no great wonder if the old Historians do not mention who Hugh Cyveliok's first Wife was for there is not any of the Antient Writers that I know of who doth make it his business to tell what Wives and Children this Earl Hugh had nay I think there is no Antient Historian that doth mention his Wife Bertred And therefore we had never known who she had been but onely because she survived her Husband and was mentioned in the Inquisition taken after his death and because her Daughters after the death of their Brother came to be Heirs Also it is very hard to tell who were Wives to Walter Gifford the First Earl of Buckingham John of Henault Earl of Cambridge Baldwin de Ripariis Earl of Devonshire William Fitz-Piers Earl of Essex Robert de Ferrars the First Earl of Ferrars and as some say of Derby Robert de Ferrars Second Earl of Ferrars Ralph de Maunt Earl of Hereford William de Iper Earl of Kent William de Romara Earl of Lincoln Morchar Earl of Northumberland Gospatrick Earl of Northumberland Robert Mowbray Earl of Northumberland and several others and therefore what great wonder would it be for Hugh Cyveliok to have a former Wife and yet we to be ignorant who that former Wife was Your second Reason against Amicia will not hold For though what is given in Frank-marriage be given in consideration of Marriage yet it cannot properly be called a Portion For such Gifts may be made either before Marriage at Marriage or after Marriage as you may see Coke on Littl. 21. b. And besides what is given as a Portion remaineth to the Husband for ever and is wholly at his disposal but Lands given in Frank-marriage shall after the death of the Husband and Wife if they die without Issue revert to the Donor Also any person that pleaseth may give a Woman a Portion but none but one of the whole Blood can give Lands with a Woman in Frank-marriage as Mr. Hughes says in his Grand Abrigdment of the Law pag. 970. But the reason why you call it a Portion is Because you would have it thought that this was all her Portion and thence would infer that she was Illegitimate because so very little was given with her But I think any Man that will weigh things indifferently wil easily conclude That if she had been but a Bastard yet being a Bastard of so great a person she would have had a great deal more given her then these Services upon those terms that they were given and especially considering how you have observed out of Sir Henry Spelman that Bastards were not in such disrepute in those former ages as they are now and besides I have made it appear that Sir Ralph Mainwaring was no inconsiderable person and therefore would deserve a great deal more And you may also find in one of the Deeds before-mentioned that though the said Sir Ralph had Issue Male yet he gave that which was of far greater value in Free-marriage with a Daughter of his own But I perceive if this Deed of Earl Hughes had been lost you would not have believed that Sir Ralph Mainwaring had had any thing with Amicia because then it would not have appeared which is a strange way of arguing about things that were done so long since And if this be a good reason I wonder you do believe that Earl Hugh had any Portion with his Countess Bertred because for ought I yet know it doth not appear that he had As for your alleadging how the other Four Sisters were married I have answered that before and though you say That if Amice had been Legitimate she being of the first Venter would have been more worthy then those of the second though that be true when the Sisters Claim as Heirs to their Father yet when they come to Claim as Heirs to their Brother as in this Case if there be Sisters of two Venters and the Brother be of the second Venter then the Sisters that are of the second Venter shall be preferred before those of the first Venter because those of the second Venter are of the whole Blood I shall therefore here conclude what I have to say to your second Reason when I have told you that I do not understand