A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner.

A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner.

Table of contents

Title page

THE PREFACE.

The Postscript.

§

Errata.

GAVELKYND.

PROPOSITION I.

PROPOSITION II.

PROPOSITION III.

Whether the Writ, De Rationabili parte bonorum, lie at the Common Law, or by Custome.

PROPOSITION IV.

PROPOSITION V.

Reasons and authorities to prove that Gavelkind-lands in Kent, are not, nor were anciently deviseable by Custome.

The learned Counsels arguments in behalf of the Custome.

The Reply to the fore-going Arguments, by such as stand in opposition to the Custome.

Argument.

Argument.

Argument.

Argument.

An APPENDIX OF Such Muniments (viz. Charters, and other Escripts) as are quoted in the precedent Discourse, with reference to this place for transcription.

Charta pervetusta de terrâ ad Censum concessâ.

Charta Prioris consimilis.

Alia Charta de terrâ ad Gablum concessâ.

Charta de terrâ ad Gavelikendam concessâ.

Apographum processus litis inter Burgam de Bending, & Priorem & Conventum Ecclesiae Cantuar.

Carta de terrâ ad Gavelikende concessâ.

Charta pirori consimilis.

Alia Charta consimilis.

Alia consimilis Charta Hospitali data.

Inquisitio de terris & tenementis quae Isabella de Monte alto tenuit de Priore ecclesiae Christi Cantuariae.

Servitia Tenentium de Rokinge ad redditum posita.

Relaxatio servitiorum & consuetudinum Tenentium de Mepham, pro annuo redditu solvendo.

Breve Regis (Wmi jmi) pro terris monasterii S. Augustini Cant. alienatis recuperandis.

Charta W. Regis jmi de restitutione ablatorum in Episcopatibus & Abbatiis totius Angliae.

Breve Regis in subsidium Villanorum Abbatis S. Augustini Cantuar. se gravari querentium in taxatione 10mae & 15mae.

Charta de Homagio facto pro terrâ de Gavelkind, sicut de Villenagio.

Chirographum pervetustum de Nuptiis contrahendis, & Dote constit•en•â.

Testamentum Ethelstani Etheling, filii regis Ethelredi, quo (inter alia) contulit Ecclesiae Christi Cantuariae, manerium de Holingburne, anno Christi 1015.

Charta Libertatum Ecclesiae Christi Cantuar. concessar. per Regem Henricum primum.

Thus Englished in the same Charter.

Charta consimilium libertatum Ecclesiae S. Augustini▪ Cantuar. concessarum per S. Edwardum Regem.

Epistola Gaufridi Supprioris & Monachor. Ecclesiae Cantuariensis ad Regem Henricum 2. de lite inter eos & Baldvinum Archiepisc.

Donatio Wolgithae de manerio de Stisted, A. D. 1046.

Donatio terrarum apud Apoldre, Orpinton, Palstre, Werhorne, Wittrisham, ecclesiae Christi Cantuariae per Aedsium Presbyterum, de consensu Cnuti Regis & Aelfgifae Reginae, ann. 1032.

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A Table, or Index OF The principal Contents.

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A Treatise OF GAVELKIND, Both Name and Thing. Shewing the true Etymologie and Derivation of the one, the Nature, Antiquity, and Original of the other. With sundry emergent Observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient Custome, or the Common Law of this Kingdome.

By (A well-willer to both) William Somner.

Virg. 2. Georg.

Foelix qui potuit rerum cognoscere causas.

Cranz. lib. 2. Metrop. 9.

Nemo sibi blandiatur de auctoritate veterum, quibus etsi fabulae displicuerunt, non tamen habebant unde falsitatem earum coarguere possent. Sed nostrâ aetate crebrescentibus literarum monumentis, inexcusabilis torpor est in fabulis scientes, prudentesque permanere.

LONDON, Printed by R. and W. Leybourn, for the Authour, and are to be sold by John Crooke at the Ship, and Daniel White at the Seven Stars in St. Pauls Church-yard. 1666.

THE PREFACE.

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[Page]

Courteous Reader,

IT is now full eighteen years since, by solemne promise, I became ingaged to my Countrey-men, upon their good acceptance of certain of my labours, in behalf of our City, wherewith I then presented them, to proceed to the same, or some other such like undertaking for the County; a thing, which as I then really intended, so have I not since wanted that encouragement for it from the better sort (expressed by their courteous acceptation of those my former labours) which I could expect. But being soon after (proh dolor!) overtaken by that impetuous storm (of civil war) not yet quite blown over, causing the distraction, and threatening the destruction of this once renowned Kingdome, I was necessitated to betake my self to other thoughts, chiefly how I might secure my self against the fury, in warding off the danger, [Page] of the present storm; being not able, I confesse, to reach to that high pitch of sedulity and magnanimity, both in this kind to which the Grecian Socrates is said to have atteined, whose thoughts were ever running on his book; insomuch, as but the very next night before he was to suffer death, (regardlesse of his so neer approaching danger, able to indispose the mind, discourage the industry, and shake the constancie of any common spirit) he was desirous to learn Musick, because (saith the Story) he would die still learning somewhat. Being therefore thus diverted, and utterly for the time discomposed for the performance of my promise, I hope not onely to be excused of my Countrymen for (what had not else been hitherto delayed) my County-undertaking, but also to obtein of them yet further respit, in hope of a better opportunity, for the discharge of that debt. For my more easie purchasing whereof at their hands, and that they and others may perceive, that I have not been altogether idle all this while; pitching in my thoughts upon our Kentish Custome of [Page] Gavelkynd, and being not unfurnished of matter in the progresse of my studies gleaned and gathered from old Records, enabling me, with the help of that little skill I have atteined in the Saxon tongue (to the study whereof I was encouraged by my precious friend and ever-honoured Mecoenas, Dr. Casaubon, as is elswhere by himself truly averred) to some more than vulgar discourse thereof; as a specimen and earnest of my further intentions for the County, I betook my self at spare hours to the perusal, resolving on the publication, of those collected notes and notions, disposing them so, that as they have to satisfaction informed me in the points proposed, so they may be of like use to others, willing to bestow their pains, and lay aside all prejudice in the perusal of them.

Kent, I considered, had been far and neer long celebrated for her Gavelkynd, though not so known either at home or abroad, whether in point of etymologie, or properties, (that especially of Partition, rendring it so incomparably famous throughout the Kingdome) as truth would. To wipe off therefore [Page] that dust of errour, which time especially (that parent of corruption) hath contracted to it, I have in the present discourse laboured chiefly to assert w [...]t I conceive to be the true sence and de [...]vation of the term, for the understanding of the Nomina si n [...]scis perit & cognitio rerum. Isid. O [...]ig. l. 1. cap. 7. name; whence the properties, that especially here instanced, do proceed, for the better judging of the nature of it, according to that end propounded to my self in all my researches, which is to know things, not so much in their present as primitive state, more in their causes than effects▪ Tun [...] enim (saith the (b) Philosopher) unum quodque Arist. 1. Phys. & 2. Metaphys. scire arbitramur, cum ejus cau [...]as & principia cognoscimus.

By the processe and prosecution of the argument, having a fair and pertinent inducement, if not to treat, yet at least to touch upon, and [...]k [...] notice, as of the Saxons Bo [...] land and Folcland, so of the Feudists Fe [...] d [...]m and Allodium, (a pair of vocables, the l [...]tter, that have long and much perplexed many prime mens fancies to disq [...]i [...] and find out their true and proper deriva [...]ion [...], [Page] to the occasion of great varieties in the point, each man abounding in his own, and that, for the most part, a different and singular sence) I thought it not amisse to make one in the number of such Etymologists, and although with singularity, I confesse, and dissent from all the rest, yet perhaps so much to the purpose (absit jactantia dictis!) as, if not to hit the mark, yet at least to come so neer it as few before have done. Alike singular, as both here, and before in the derivation of Gavelkynd, so afterwards I may be found in that of Socage, yet I trust with so much truth, and that so fully evidenced, as will serve, I hope, to render me with the sober and ingenuous, worthy, if not of thanks, yet of excuse and pardon, if they differ in opinion from me.

Here also (good Reader) be advertised, that whereas, by occasion of our discourse in the third Proposition, concerning the Partition-property in Gavelkynd, I had obiter, or incidently, made some mention of the Writ, De rationabili parte bonorum, sometime [Page] (by means of that partition mentioned in the old Kentish Custumal) obteining, and now again (if the endeavours of some may take effect) reviving in this County; it came afterwards into my mind to think it would not be impertinent to the present Discourse, somewhat further to enlarge in that particular: that by enquiry made into the Antiquity, and tracing the progresse of the Partition intended by this Writ from its first birth until its full growth, we might be the better able to give judgment, & make the more probable conjecture of the present validity or invalidity thereof. My discoveries therefore being made and communicated to some judicious friends, not without their acceptation and my encouragement for publication, I have adventured to add them at the end of that third Proposition, pag. 91.

As for my thwarting the common opinion, concerning our composition with the Norman Conquerour, and the consequents of it, I offer no Apologie here, as having already made it in the proper place, and that, I also [Page] trust, so fully, as I may well expect to be excused of it here. In sum, loving truth (the end of all Science) for it self, and altogether unbyassed with any by-respects, whether of vain glory, singularity, or the like, I have made it my constant endeavour in what is here proposed and published, that Truth alone (than which saith the Philosopher, nothingIdem 2▪ Metaphys. is sweeter, nothing more precious) might triumph over Falshood, Antiquity over Novelty. If hereby I have done either of them any right, or any friends any pleasure, as the chiefest reward I expect for all, I shall desire that such a measure of respect may be vouchsafed, as to those old Records from whence the chief materials in this structure have been taken, so to that ancient learning which hath contributed fitting tools wherewith to work the same materials, and fit them for that use, as may secure and rescue both (uncapable of other recompence) from that scorn, neglect and contempt in the dayes of so much novelty so freely cast upon them, since by falling into [Page] some hands, so good an improvement may be made of them for the publike.

I may perchance (at first sight, at least) be thought too bold with the common Lawyers, too busie in their Common-wealth, too much medling in matters of their peculiar Science; yet no otherwise, I hope, than that they and their friends may be willing to excuse me. I am one that honour their profession, and have here done or said nothing out of opposition; my intent being onely in my way to do them service, and their profession right, by holding forth to publike view some Antiquities tending at once to the satisfaction of the one, and illustration of the other. For which purpose I have by me some other things in a readinesse for the publike, and which shall not (God willing) much longer be retarded, in case these my present endeavours (as my past have done) meet with any proportionable encouragement, and the times permit, by the continuance of our Counties peace, (Peace, I say, that mother of Arts:) which with an enlargement [Page] and establishment of that blessing throughout the three Kingdomes, is a chief subject (courteous Reader) in the daily devotions of

Thine humble Servant, William Somner.

The Postscript.

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THe Reader is here further to be advertised, that both this Preface and the following Treatise were first written more than twelve years agone, have lien by the Authour ever since, and had not now come forth, but upon the encouragement of some worthy and judicious friends. If therefore any thimg (whether for language or otherwise) in either the one or the other, seem improper, uncouth, or unsuitable to the present times, his patience and pardon is humbly craved and expected.

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To expedite such (in their perusal of this work) as are ignorant, but studious, of the Saxon Language, the Authour (although he have but lately set forth a Saxon Dictionary) hath thought it very fit here to prefix the Saxon Alphabet and Abbreviations.

a | b | c | d | e | f | g | h | i | k | l | m | n | o | p | q | r | s | t | u | w | x | y | z.
a | b | c | [...] | e | [...] | [...] | h | [...] | k | l | m | n | o | p | q | [...] | [...] | [...] | u | [...] | x | y | z.

th | th | that | and
[...] | [...] | [...] | [...]

Errata.

[Page]

PAg. 4. lin. 21. and customary. lin. 22. yeelded it. p. 18. l. 8. Bians. p. 21. l. 1. after Consuetudo. l. 18. Snave. l. 27. Shorham. p. 24. l. 18. Oale-gavel. p. 25. l. 2. Clyve. l. 16. Chartham. p. 26. l. 20. of it in that composition. p. 27. l. 5. rents and services. p. 29. l. 7. find it in. l. 28. to the Tenant, better. l. 31. Fremfeld. p. 30. l. 27. not alienable. p. 31. l. 21. Gam [...]lle [...]um. l. 25. Hervicus. p. 34. l. 10. rather say. l. 14. ma [...]am. l. 18. firmam. l. 20. construe. p. 36. l. 2. Counties. p. 37. l. 9. the which word. p. 38. l. 18. [...]. ibid. [...]. l. 27. of former times. p. 39. l. 13. Herlewinum. p. 55. l. 21. of times. p. 58. l. 14. aequ▪ valentem. p. 72. l. 4. reteined. p. 83. l. ult. construe it thus. p. 96. l. 2. Salvo. p. 117. l. 4. Drofmannus. p. 119. l. 8. Demesne. p. 123. l. 6. those and succeeding. p. 142. in marg. L. 1. ff. si ag. p. 162. l. 24. And as it is. p. 175. l. 1. priori. ibid. in marg. Burgor. apud Scotos.

Some literal and such like other smaller faults there are, besides mis-pointings: which being as easily amended as observed, are therefore here pretermitted.

GAVELKYND.

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AMong the many singularities of Kent, that of so much note, both at home and abroad, commonly called Gavelkynd, may seem to bear away the bell from all the rest, as being indeed a property of that eminent singularity in the Kentishmens possessions, so generally in a manner, from great antiquity, over-spreading that County, as England at this day cannot shew her fellow in that particular; yet so unhappy the whilest are both Kentish-men and others, in the right understanding both of name and thing, that although it be the daily subject of every mans discourse, even of all professions, yet remains it hitherto, both in the one respect and in the other, so obscure, and in so much want of further illustration to make it known, as if never yet by any seriously considered of. Purposing therefore to contribute my best assistance towards a right and full discovery; in order thereunto, and for my more methodical proceding, [Page] I shall branch out my discourse into these five following heads or propositions: viz.

1. The true etymologie and derivation of the name, including a plain confutation of that which is commonly received.

2. The nature of Gavelkynd▪ land in point of partition.

3. The antiquity of Gavelkynd▪ custome, in point especially of partition, and why more general in Kent than elswhere.

4. Whether Gavelkynd be properly a Tenure, or a Custome; and if a Custome, whether inherent in the land or not.

5. Whether before the Statute of Wills (32 and 34 Hen. 8.) Gavelkynd▪ land in Kent were deviseable, or not.

PROPOSITION I.

The true etymologie and derivation of the name, including a plain confutation of that which is commonly received.

TO begin with the first: (the true Etymologie and derivation of the name, &c.) By the common and received opinion of these dayes, obvious and easie to be found, both in the writings and discourses of Kentish-men and others, this Custome (as commonly called) owes its name and original to the nature of the land in point of descent. To consult (for instance) a few of the multitude [Page] of printed opinions looking that way, collected from the most eminent of our modern and late Writers, as well Antiquaries as Lawyers, and intending to steer a retrograde course in this re-search, I shall begin with one of the latest, Sir Edward Coke, who in his Notes, or Illustrations upon Littleton, tit. Villenage, Sect. 210. verb. en Gavelkinde, glosseth the text thus: Gave all kynd: for (saith he) this Custome giveth to all the sons alike. Not long before him, another learnedSir Hen. Spelman, in voce▪ Gaveletum. Knight and famous Antiquary, taking the word to expound in his Glossary of antiquated words, saith, that it is termed Gavelkynd, either, Quasi debitum vel tributum soboli, pueris, generi, i. e. as it were of right belonging and given (intimated in the two first syllables, [...], or [...]:) to the issue, children, or kynd, (signified by the last, [...], or [...]:) Or else secondly (saith he) from [...], i. e. given to all the next in kindred. Verstegan (to ascend in our g [...]adation one step higher) c [...]nsureth the word of corruption, saying, that it is corruptly termed Gavelkynd, for Give all kynd, which after him is as much to say, as, Give each child his part. From whom Mr. Cambden differsBritannia, in Kent. as little in time, as in opinion, when he saith it is called Gavelkynd, that is, saith he, give all kynne. Before all these, Mr. Lambard, (the first that undertook the etymologie, and whom, beside the former, The English Lawyer, p. 73. Judge Dodderidge, Interpreter, in voce. Dr. Cowell, the Authour of the New Terms of Law, and many more, longo agmine, a [...]e known to follow) in his explication of Saxon words prefixed to his Archaion, verb. Terra ex scripto, is clear for the derivation of the word from the Saxon [...]: Credo (saith he) ut terra illa Gavelkyn, quasi [...], [Page] idest, omnibus cognatione proximis data, dicatur. But afterwards, (as if upon second thoughts altered in hisPerambul. p. 528. opinion) he coupleth this derivation with a second, and so at length is found to share his opinion of the words original between two conjectures, grounded both upon the nature of the land; the one in point of Descent, the other of Rent and Services. In reference to the former of which, he saith, that, Therefore the land was called either Gavelkyn, in meaning, give all kyn, because it was given to all the next in one line of kinred; or, give all kynd, that is, to all the male children: for kind (saith he) in Dutch signifieth yet a male child. And in relation to the latter, he saith, that, It is well known, that as Knights-Service land required the presence of the Tenant in warfare, and battell abroad: so this land (being of Socage tenure) commanded his attendance at the plough, and other the Lords affairs of husbandry at home: the one by manhood defending the Lords life and person, the other by industry maintaining with rent, corn and victual his estate and family. This rent (as there he adds) ni a customary payment of works, the Saxons called [...], and thereof (as I think) they named the land that yeeldod [...] or [...], that is to say, Land letten for rent, or of the kind to yeild rent, &c. The Authour (I confesse) modestly leaves it free to the Reader to receive either of these conjectures, or to refuse both, as it shall best like him: but the former of the two, being primâ facie, of a more plausible sound and allusion than the other, (an advantage very considerable with most men, whose guidance notwithstanding is not alwayes to be followed:) and that having gotten the start of her fellow in time, hath not fail'd to keep it [Page] ever since, having proved the more acceptable of the twain, and by this time found so many followers, and those, like the first Authour, of so great credit, as that whosoever shall contradict the one, or dispute the other, can do neither without exceeding prejudice; so difficult a lesson it is with some to unlearn, See the addition to Dr. Casaubons Treatise of Use and Custome. whose minds are as hardly weaned from an opinion which their fancie hath once approved, as others are from an habit or a custome, which if inveterate and long▪ setled, though▪ corrupt and vicious, is very hardly left off, and laid aside. Yet, as the Common Law See Sir Ed. Coke, Instit. part. 1. fol. 115. a. determines of a Custome, that if the rise, the original thereof can so be traced, as it can appear that it first began within time of memory, it is no Custome, nor shall obtain or prevail as a Custome; so in case, by tracing the present derivation to the well-head, I shall shew, together with the time, the errour of its first original, not to be salv'd by long tract of time, (for, Quod ab initio non ff▪ de Reg. Jur. l. quod ab initio. valuit, tractu temporis non convalescit:) I trust I shall not fail, nor fall short of what mine endeavours drive at in this matter; the weaning (I mean) of sober and judicious minds from an opinion so erroneous and ungrounded as this, I doubt not, upon trial, shall appear to be, though thus long continued, and in it self specious and plausible enough. However, being convinced in mine own judgement of the errour, that I may not seem to swallow it for company, to the prejudice of truth, for that (I say) if for no other reason, I have resolved to protest against it: and yet, not to seem singularly affected without a cause, I shall not do it by a bare denial or dissent, as he that thought it sufficient for Bellarmines confutation to give him the [Page] lie, but by representing withall my inducements thereunto, I hope to put the matter out of doubt, that I have studied the Readers satisfaction herein as well [...]s my own, by a learned mans Duarenus, Commen [...] ▪ in Tit. de Pactis, p. 49. [...]. example, who [...]e words in a like case, as very apposite in this, I shall here borrow for the close of my Apologie: Etsi m [...] non lateat, (saith he) quàm lubrica, plenaque discrim [...]nis res sit, quae per tot secula, tot homines eruditi uno consens [...] proba [...]unt, rejicere velle, rationes tamen eas in medium adducere visum est, quibus adductis hanc interpretationem damnare ausus sum. Nor is this (I take it) magno conatu nugas agere; the discovery and refutation of popular errours having been a task for many worthy pens, in cases of as small concerment as this perhaps may seem to be▪ To the matter then.

Whether the name of Gavelkynd was at first imposed with, or in respect to the nature of the land, in point of descent, or not, is indeed the matter in question. The common opinion (I confesse) affirms it, wherewith joyning issue in the negative, I shall endeavour to refute it by a double proposition; one negative, shewing that this is a wrong, and mistaken; the other positive, or affirmative, declaring what is the right and genuine construction of the term.

As for the former, though it carry with it a seeming allusion to Gavelkynd in sound, yet if we look advisedly into the true nature of it, we may, and peradventure must, conclude the etymologie from Giveall cyn, Give-all-kynd, or the like, unnatural at the least, and far fetcht, if not violently forc'd. For first, admitting Kind to signifie a male-child in the Dutch or Belgick tongue, as it doth not more than a female, [Page] being a word common to children of either Sex (Knecht indeed with them, as Cniht with our Ancestours, the English-Saxons, is of that See Kilianus Diction. verb. Knecht. signification:) yet is not this kind of land so restrained in point of descent onely to the males, but that (as in the case of land descendible at the Common Law) the females in their default, that is, where the males are wanting, are capable of succession to it, and in the same way of partition with the males. Nay, is any of the sons dead in the fathers life time, leaving a daughter behind him, such daughter shall divide with her uncles in thisLamb. Peramb. p. 547. land. What then? shall we admit kynd to signifie the issue, be it male or female? as indeed it doth either, coming of the Saxon, or old English, cennan, orVid. Dictionar. nostr. Anglo-Sax. i [...] voc [...]. cennian, parere, to bring forth, whence with them the word or participle [...], for the first-begotten, or first-born, [...], for the onely begotten, [...], terrigena, one that is born, or bred of the earth; yet is not this land so tied to the issue, but that in default thereof, i. e. where that is wanting, such as be in the transversal or collateral line (as in other lands descendible at the Common Law) may and do inherit it: as (for instance) when one brother dieth without issue, all the other brethren may and do inherit, as doth their respective issue too, in case of their default, jure repraesentationis, but with this restriction in the nephews case succeeding with their uncle, viz. that the descent is then in stirpes, not in capita. Neverthelesse, it goeth not as the Irish Davies Reports, Le I [...]ish Cust de Gavelkind, fol. 49. Gavelkynd, to all the males of the same linage, (for in this, as in other inheritances, propinquior excludit [...]racton de acq [...]iren. rer▪ dominio, fol. [...]4 a. propinquum) nor yet neither to all the next in one line of kinred, as they pretend that [Page] are for [...], taking cyn to signifie kindred, as indeed it doth, for then brothers and sisters both, being alike neer in degree, should equally inherit, (a thing it seems allowed by the old German custome, witnesse what we have from De morib. Germanor. Tacitus; Haeredes successoresque sui cuique liberi, &c. not restraining the succession to the male▪ issue, as neither doth the l. inter filios. l. famil. hercis. l. si quis à liberis. [...]f. de l [...]b. agnos [...]. l. si major. in si. l. communi divid. Civil Law:) whereas we know, that as by the Lib. 1. Feud. tit 6. Parag. 2. & ibi Ho [...]om. Feudal Customes abroad, where males are, the females are excluded from succession, so by the Common Law of Li. Hen. 1. c. 70. Glanvil. li. 7. c. 3. Bracton, fol 65. a. England, women (or females) shall not partake with males, according to that rule laid down in the Statute called Praerogativa Regis, cap. 16. Foeminae non participabunt cum masculis, which (by the way) is understood onely of such as are in equal degree. But doth [...]yn or kynd here intend and denote a mans issue, the Gavelkynders children? What may we say then to a conveyance of land in Gavelkynd to a Guild, or Corporation, aggregate of many, suppose an Hospital; (as an instance of that nature shall be produced And another in the Appendix, Scriptur [...] 9 by and by:) they are a dead hand, how then is the etymologie in that case justified? Where's the kynd, the parties issue here, to make good the derivation? But since, by occasion, mention is made of such a gift, or conveyance, to strangers from the proper issue or heirs, let me thus far further adde, that in case it be called Gavelkynd, from debitum vel tributum soboli, i. e. due, or given to the issue, as some are of opinion, how comes it then to passe, that, as before the Statute of Wills, Gavelkynd▪ land might by deed, or other lawful conveyance (and that Domin [...], in this case inconsulto, and invito too, contrary to the nature of what [Page] with the Feudists is properly termed See Vulteius, de Feud. li. 1. c 8. nu. 37. p. 341. Fe [...]:) be freely given, or sold away from the heir by the custom to a meer stranger, (contrary to the old Common Law of Glanvil. lib. 7. cap. 1. England, except in some few cases, as in Frankalmoigne, or in marriage with a mans daughter, a reasonable part might be given, with some limitations and distinctions between Land of Inheritance and Purchase:) as now since the Statute of Wills, (if not before, as some of late seek to perswade us, a matter which I shall reserve See the [...] Proposition. al [...]iori indagini:) it may be, and daily is by devise of will and testament; How is the next heirs right to this land preserved, when there is that freedome of giving, or devising it away? Or how can this liberty & that etymologie consist? Yet further, doth not Mr. Lambard somewhere Perambu [...]. p. 544▪ say, that no Gavelkynd partition could be challenged, but onely where the custome of division had prevailed, and that Gavelkynd was not tried by the manner of Socage-services, but onely by the touch of some former partition? If [...]o, no land then could properly be called Gavelkynd, wherein this custome of partition had not yet obteined: what shall then be thought of those new created Tenures in Gavelkynd, whereof until the Statute of Anno 18▪ Edw. 1. Quia emptores terrarum, examples are very obvious and frequent in the old Records both of the Cathedral at Canterbury, and of the neighbour Abbey of St. Augustines, and elswhere, affording many ancient grants of land in Gavelkynd? to what original shall the name there be referred? to any customable partition? nothing lesse: for where can that be found in Gavelkynd-land of novel Tenure, for want of that competencie of precursory [Page] time of them necessarily presupposed (to frame the custome in) who conceive the name taken from such accustomable partition? Moreover, if partition were the thing that gave name to Gavelkynd, then should all partible land wheresoever be so called: but there is in parts abroad (out of Kent) partible land not called Gavelkynd. Ergo, &c. For the assumption see the Stat. 32. Hen. 8. cap. 29. purposely made to change the customary descent of the land of Osweldbeck Soke or Lordship in Nottingham-shire. And what doth Lib. 3. [...]l. 374. a. Bracton intimate lesse in his sicut de Gavelkynd, vel alibi ubi terra [...]st partibbilis ratione terrae? Adde hereunto▪ that the word, as to the main part of it▪ Gavel, frequently occurs in the old records of some manours out of Kent, sometimes simply, but for the most in composition; for example, Gavel-erth, Gavelate, Gavel-lond, Gavel-man, Gavel-swine, Gavel-wood, Gavel-rod, &c. (of which more anon.) And shall the same thing, (contrary to that rule of Law, [...]. 1. ff. De rerum permutatione) diverso jure censeri? For I suppose none will render it there (being out of Kent, and where no Gavelkynd partition taketh place) Gife-eal▪ Nor will this derivation any better stand with Gavel, where it helps to the composition of some words here used in Kent, in former times at least, besides that of Gavelkynd, such as are all or most part of those aforeremembred, to which I may adde Gavel-rip, Gavelote, Gavel-sester, Gavel-bred, Gavel-bord, Gavel-timber, Gavel-corn, Gavel-re [...]ter, &c. whereof also I shall intreat further by and by. Is it then (lastly) to be supposed▪ that the lands meer descent in this kind to all the heirs alike, supposing a plurality of heirs, was all [Page] the regard those Ancestours of ours had to sway and regulate their judgement by, to whom the name, the term, doth owe its first original? Was that in probability ground enough to satisfie them of the congruity and sutablenesse of the name to and with the nature of the thing named, as names we know should Conveniunt rebus nomin [...] saepe suis. be? Vix credo. I doubt it for my part.

In brief then, to recollect what hath been said: 1. If females are capable of this succession as well as males, where the male issue faileth. 2. If collateral kinred are capable thereof as well as those in the descendent line, where such heirs are wanting, (in both which kinds Gavelkynd land differs not from that at the Common Law:) 3. If Corporations may hold land in Gavelkynd. 4. If such land may be passed away to meer strangers from the right heirs. 5. If none may properly be called Gavelkynd-land, where an accustomable partition hath not made way for it. 6. If there be partible land elswhere (out of Kent) that is not called Gavelkynd. 7. If Gavel (the fore-part of the word) found in some Records of land out of Kent, and of others in Kent, will not bear the derivation of it from Gife-eal, without absurdity. 8. And lastly, if names are to be imposed with respect to the nature of what is Nominae cum re consentiant, Plat [...] de Sapient. named, then is Gavelkynd, after these mens premised derivation, in some sort a very scant, narrow, and partial, in other a most incongruous and improper term to expresse the nature of the land by. Surely, there was somewhat more peculiar to Gavelkynd-land, and of more note and eminencie in it, better serving to distinguish it from other kind of land, than this derivation of theirs seems to intimate, and which first gave [Page] occasion to the imposition of that name upon it, which leads me to my other, the positive, or affirmative proposition, asserting the true sense and construction of the term, and shewing whence it was at first imposed, and afterwards continued.

Wherein I must confesse, Mr. Lambard was as happyGafol, what signifying. to go right in the latter of his two conjectures, as he was before unluckie to misse of the right in his former, yet in this passively unhappy though, that the former, through the advantages afore-mentioned, wholly took, and was accepted of all, whilest the latter was received and embraced of none: but no great marvel, since, whilest some, through ignorance could not judge of, others haply for company, would not question so plausible a derivation. But to the purpose.

To such as are any thing vers'd▪ in Saxon monuments, Gafol is a word very obvious, but varied sometimes in the Dialect, as being written now [...], anon [...], here [...], there [...]. I shall give you a few instances where it occurrs, and in what sense. Tribute mentioned in the 17 of St. Matthews Gospel, verses 24, and 25, as also in the 22 of the same Evangelist, verses 17 & 19, is in the Saxon Translation of the Gospels, turned [...]. In the 25 chapter of the same Gospel, at the 27 verse, it serveth to expresse what there in our modern English Translation is called, in some books, advantage, in other, usury, agreeable to that in the Saxon Psalter, Psal. 54. vers. 11. where usura in the Latine, in the marginal version or reading of the word, is rendred [...]. [...] occurring in the first of King Withreds Laws of Sir Henry Spelmans Edition, in the first Volume of the Councils, pag. 194. is of that▪ [Page] learned Knight expounded to us by Redditus vel Pensiones, as it is again in his Latine Version of Pope Agatho's decretal Epistle, pag. 164. of the same Councils, by Redditus. In an old Sanction of King Edgars, recited by Mr. Selden in his Notes upon Aedmerus, pag. 153. what is there in the Latine read solitus census, in the Interlineary Saxon Version we find rendered there [...]. Hereunto I might adde heaps of instances taken from the Saxon Laws, the Mare clausum▪ and elswhere, but I forbear to exspatiate: and to be short, Gafol is a word, which, as Gablum in Doomsday-book, the skilful in the Saxon tongue, with Sir Hen. Spelman elswhere, turn by what Gabella is expoundedGlossar. verb. Gabell [...]. abroad, viz. Vectigal, Portorium, Tributum, Exactio, Census, in Latine, but in English, with Verstegan, Tribute, Tax, or Custome, to which with Peramb. p. 529. Mr. Lambard, and Instit. p. 1. fol. 142. 2. Sr. Edw. Coke, let me adde, Rent: witnesse, besides the former quotations, what occurrs in an ancient will or deed In Archiv. Eccles. Cant. of one Athelwird, the Donor of certain land at Ickham in Kent to the Cathedral at Canterbury, in the year of mans redemption 958. where you may read: [...] fortè he [...]e [...] ▪ [...], &c. And anon after again: [...], &c. The former of which passages, under favour of the skilful in that language, I shall render thus in our modern English: After his dayes, (or death) Eadrith, if he live, shall enjoy (or use) it, yeilding that rent which is imposed on it▪ that is, v. pounds, and every year (or yearly) one dayes farm (or victual) unto the [Page]Covent, that is, xl (measures called) Sextaries of ale, Conteining four gallons, so Fleta lib. 2. cap. 12. &c. And the latter thus: With the same (or like) Rent that herein is appointed. Let me adde what in another like Record, both for time and place, occurrs thus▪ [...]. That is, And after both their dayes (or deaths) let Eadsith the Arch-Bishop, if he survive them, have (or take) these lands, or else his Successour for the time being, unlesse some friend of theirs, by (or with) the Arch-Bishops favour, may continue to hold that land at (or upon) the accustomed rent, ur upon what other contract (or condition) may be had (or made) with the Arch-Bishop then living, (or, for the time being.) I shall adde but one instance more from the grant of Bocking (a known place in Essex) to the same Cathedral▪ by one Ethelrich, in the year of Christ 997. [...]. That is: And I also give those two hides (of land) that Eadrith renteth (or hireth) yearly for half a pound. So that to me it seems clear, that ponere terram ad gablum, is as much as to hire, or let out land by or for rent or farm, and by consequence, terra ad gablum posita, taken in its proper and genuine acception, is land hired, or letten out to farm, or for rent. In the latitude of the word it comprehends besides▪ all censual, or tributary land, as also what we call customary land, (in that sense wherein [Page] Consuetudines, Customes, denote Coke, Instit. p. 2. p. 58. Services) and so takes in all Rent-service land, which with our Saxon Ancestours, who called the rent or service paid or done for such land, Spelm. Gloss. in voce▪ [...], and [...], was, by a transposition of the syllables, called and known by the name of [...], or the like: Lamb. Archaion, fol. 45. cap. 2. [...]. i. e. Except the Churle (or Countrey-man) that occupieth censual land, as one would say now, Except the Country Fermor, or the like. He seems by this to be properly [...], i. e. one that had no land of his own, such a one as had, being called [...], i. e. terrae propriet [...]rius, a landed man, as the word is (I take it) to be rendred, not Viator, a way-faring man, or the like, as some Spelm. Gloss. in voce. have guessed. But to keep us to our Gafol, within and under which term and notion, not onely the generality of rent and customary, whether payments or services, was comprehended and comprised, simply; but what we at this day call Rent-corn, Rent-honey, Rent-barley, and the like, the special and particular rents and services, I mean, by the custome of some manors yeilded by the Tenants to the Lords thereof, though now for the most part turned into moneys, were in elder times, in composition, called Corn-gavel, Hunig-gavel, Bere-gafol, &c. Without impertinencie I hope, I shall here present the Reader with a list of as many of them, as with much content to my self, I have ransacked old Records to find out for this purpose, with an assay of mine own at their several expositions, and they are divisible into two sorts, the one beginning, the other ending with Gavel. Both of them follow.

[Page]Gavel-corne.

Gavel-erth.

Gavel-rip.

Gavel-med.

Gavel-ote.

Gavel-dung.

Gavel-rod.

Gavel-tymber.

Gavel-refter.

Gavel-bord.

Gavel-swine.

Gavel-wood.

Gavel-sester.

Gavel-werk.

Gavel-noht.

Gavel-fother.

Gavel-bred.

Wood-Gavel.

Work-Gavel.

Swine-Gavel.

Corne-Gavel.

Peny-Gavel.

Malt-Gavel.

Les-Gavel.

Leaf-Gavel.

Hunig-Gavel.

Were-Gavel.

Twy-Gavel.

Bere-Gavel.

For-Gavel.

In the list of the Rents and Services reckoned up in [...]avel- [...]orn. a Lieger-book of the Church of Canterbury, as charged upon that Churches manour of Adesham in Kent, this in particular thus occurrs: Item de Gavel-corn 66. sum. Doubtlesse it is the same with that in a composition made between the Abbot and Covent of St. Augustines at Canterbury, and their Tenants of Minster and Hengrove in Thanet, anno 19. Hen. 6. called Corn-gavel, and there thus described: Et quod quatuor Corn-gavel. Swillingae & dimidia, & quarta pars unius Swillingae residuae tenebantur & tenentur de praedictis Abbate & Conventu per fidelitatem & relevium, & per redditum & servitium vocatum Corn-gavel, viz. reddendo eisdem Abbati & Conventu [...], & successoribus suis annuatim, in[Page]festo S. Michaelis Archangeli, de qualibet Swillinga earundem 4. Swillingar. Quindecim quarteria & quinque buschellos ordei palmalis, & 15 quarteria & 5 buschellos avenarum, & de praedicta medietate & quarta parte unius swillingae secundum ratam portionis ordei & avenarum illas medietatem & quartam partem contingentis, defeernd. & cariand. ad costas & expensas praedictorum tenentium usque ad granarium dictorum Abbatis & conventus infra monasterium S. Augustini praedictum, vel per servitium reddendi pro qualibet acra dictarum quatuor swillingarum in [...]od. festo S. Michaelis octo denarios, & pro dictis medietate & quarta parte unius swilling [...] secundum ratam portionis illas medietatem & quartam partem unius swillingae de praedictis ordeo & avena contingentis, in casu quo praedicti tenentes praedictum or deum & avenam in eod [...]m festo in formâ praedictâ non solverint. Thus the composition, whereby it is apparent what Gavel-corn signifies, namely (as before was intimated) Rent-corn.

In an Accompt-roll of the Arch-Bishop of CanterburiesCavel-erth. manour of Reculver in Kent, anno 29. Edw. 1. this service, under the title of Arura, occurrs thus: Item respondet de xxxv. acris de consuetudine arandi Gavelherthe. In an old Customal In Archiv. Archiep. Cant. of Gillingham manour in Kent, of about that age, I read thus: Item sunt ibi quinque juga, quodlibet arabit unam dimidiam acram ad semen frumenti, & seminabit, & herciabit, & dimidiam acram ad semen ordei, & herciabit, & unam virgatam ad avenam & herciabit & warectabit, dimidiam acram ad ordeum, & nihil recipient, & vocatur istud opus Gavelerth. This then (it seems) is a certain Tillage-service, like the arura in Bracton, fol. 35. b. due [Page] by the Tenant holding his land upon terms of plowing, &c. a certain quantity (more or lesse) of his Lords Demesnes, not alwayes performed in kind, but bought out and redeemed sometimes with money. Et de 10. sol. de 10. acris de Gavelerth relaxato hoc anno, quoth an old Rental sans date of the Arch-Bishops foresaid manour of Reculver. It was of some affinity, as with the French Poictovines Biaus, so also with that whichBiaus. Benerth. Mr. Lambard calling Benerth, expoundeth by service which the Tenant doth with his cart and plough. With his plough indeed, and also with his harrow, but not (that I find) with his cart, it being a meer tillageservice, as Gavelerth is, & alwayes performed precariò, as the Frenchman saith, precairement, upon request and summons, (in aid, and for the help and ease, when need was, of other Tenants bound to do the like de gablo, i. e. as I conceive, ex debito, and without summons:) and with allowance of (more than regularly was afforded in the other Et omnes tenentes de isto jugo debent a rare, herciare, seminare, de semine Archiep. unam acram sine cibo, quia Gavelerth. Custumal of Tenham manour. service) a coredy, i. e. diet, or victual, (fometime called Benebred) during the employment. Glanvils precarias carucarum forinsecarum, lib. 8. cap. 3. may hence be understood. Matthew Paris in his History of England, pag. 895. of the last Edition, making mention of a Breve inauditum, (as he there cals it) i. e. an unheard of Writ, issued by Hen. 3. recites this as a part of it: Similiter inquiratur de carucis precariis, which by the learned Authour of the Glossary, at the end of the work, is thus illustrated: Erant & precariae (saith he, speaking of several sorts of Ploughs) quas scilicet in necessitate aliqua eminentiori, colonus uaus à proximo Should he not rather have said, Dominus ab hominibus suis? precario mutuabatur. Hence the phrase in many old Custumals and Rentals [Page] of plowing this or that quantity of the Lords land by his Tenant, de prece, de precaria, ad precariam, and the like. In precariis carucacum & in auxilio herciandi vj. sol. viij. den. saith an old Accompt-roll In Archiv. memorat. of Saltwood manour. The meaning of such passages in records of that kind as this: arant preces semel ad conredium Custumal of Monkton manour in Thanet. Curiae, &c. and the like may hence be pick'd out. It took name (this of Benerth) I conceive, of the Saxon bene, postulatio, as Mr. Lambard, and before him Jornadensis, translating the Saxon Laws, turn the word occurring in the title of the eighth of King Ina's Laws, as Sir Hen. Spelman doth by Rogatis, Concil. tom. 1. pag. 583. Whence (probably) Fleta, lib. 2. cap. 84. speaking of those Ploughs, calls them Carucas rogatas.

A certain Service (the same, I take it, with Bractons Gavel-rip. messura, fol. 35. b.) undergone by the Tenants of some manours tied to reap their Lords corn for him, which if redeemed, or taken in money, was usually termed Rip-silver. Of the former, in the Custumal In Armat. Eccles Cant. of Westwell manour in Kent, I read: De consuetudiue metendi xl. acras & dimid. de Gavel-rip in autumpno xl. s. vj. d. And in another like record, I meet with the latter thus explained to our hand: De sulinga de Ripsilver. Witstable xvj. de Ripsilver, quia homines de Witstable solebant antiquitus metere apud Bertonam. And as in Tillage-service, certain Tenants were bound to it de gablo, others de prece; and thence the one service called Gavelerth, the other Benerth; so for reaping also, there were some that held by Gavelrip-service, other by Bedrip-service, (the old Glossary at the end ofBedrip. Benrip. Hen. 1. Laws hath it Benripe:) that done de gablo, [Page] without any bidding or summons, and for the most part without coredy; this de prece, upon bidding or summons, and regularly with coredy: In villa de Ickham (saith the old Custumal of that manour of Christ-Church) sunt xvj. Cotarii, quorum quilibet habet v. acras, & hae sunt earum consuetudines: Ducunt brasium, &c. & quilibet tres preces, i. e. (saith the old marginal Glosse there) quando rogantur per servientem Curiae, debent metere, sive aliud facere quod expedit Domino per tres dies, & si noluerint facere, possint artari, &c. As I gave you some instances before of Gavelrip, so I might also of Bedrip▪ but, for brevity sake, I will onely refer you to that in Sir Hen. Spelmans Glossary, verbo Bidripa, which being barely mentioned thereBidrip. without exposition, may hence be understood. And as Bene in Benerth is of a Saxon original, so likewise Bede here in Bedrip; and indeed they are univocal, drawn (this) from the Saxon [...], petere, rogare, and applied to this service upon the same ground that [...], to a Crier, Beadle, Summoner, Bailiffe, so calledSee Spelm. Glossa. in Bedellus. from his office, which is to warn, summon, give notice, &c. as these Tenants were to be warned, summoned, in a word, bidden, to come and perform this service: Et de Cxcix. operibus magnae precariae provenien. de omnib. tenentibus Domini, tam liberis, quàm nativis, infra dominium Domini, quorum quilibet domum habens de quo fumus exiit, inveniet unum hominem ad magnam precariam, si ad hoc summonitus fuerit, &c. as it is in Accompt In Archiv. Archiep. Cant. Gavel-med. of the manour of Harwe, now called Harrow in Middlesex, anno 21. Rich. 2.

A service of much affinity with the former. In an Accompt-roll In Archiv. memorat. of Terring manour in Sussex, anno 11. [Page] Edw. 1. it occurs thus: Consuetudo metendi quae vocatur Gavelrip, follows Consuetudo falcandi quae vocatur Gavelmed. And anon after: Et pro una septimana dum falcatur stipula quae vocatur Gavelmed. It needs no further opening.

A certain proportion of Rent-oats served in sometimeGavel-ore. in kind, other while by composition redeemed with money. As to the former, (its payment in kind) I read thus in an In Archiv. memorat. old Custumal, (sans date) of Southmalling manour in Sussex: Borga de Wellingham. Operarii. Omnes isti operarii de W. debent reddere annuatim de qualibet virgata unum quarterium avenae, quod dicitur Gavelote in xlma. In an Accompt-roll of the same manour, I find a charge sutable: Idem respondet de octo quarteriis, quatuor bush. avenae receptis de gabulo Custumariorum de Wellingham. And for the redeeming it with money, an old Ubi sup. Accompt, (sans date) of the Abbey of St. Augustines manours of Swane and Borewaremersh in Rumney mersh, furnish us with an instance of it thus: Et de avena de gablo vendita iij. s. Like to that in old Ubi sup. Accompt-roll of Gillingham manour by Rochester: Et de x. s. vj. d. de quinque quarteriis, duob. bush. de Gavelote de redditu venditis.

A service (like to that spoken of by Littleton, underGavel-dung. the title of Villenage) to carry the Lords dung out of the site of the manour, unto the land of his Lord, &c. whereof in an Ubi sup. Accompt-roll of Storham manour in Sussex, of about Edw. 1. time, under the title of Consuetudines & servitia de omnibus Borghis extra boscum praeter Suthram, I read in the Accomptants charge as followeth: Idem respondet de consuetudine extrahendi fimum debita per Custumarios tenentes xxvij. virgatas, [Page]dimid. & j. ferling. in Borgh de Gote, Middelham, Astone, Northlington, & Wellingham in una septiman [...] post festum S. Michaelis cum auxilio Molmannorum, quod servitium vocatur Gaveldung. See the Grand Custumier of Normandy, cap. 53. in fine.

What service this was, the place it self where it occursGavel-rod. sufficiently explaines unto us, and that is an old Ubi supra. Extent of the manour of Terring in Sussex, anno 5. Edw. 1. where under the title of Virgatarii operarii de Wadeherst, we have it thus: In borga de Wadeherst sunt xv. virgatae, dimid, & j. firling terrae nativae, quarum quaelibet debet claudere unam perticatam sepis circa curiam de Malling, & debet pro pollis & claustura quam facere solebat ad Natalem beati Johannis Baptistae annuatim reddere j. d. ob. quod dicitur Gavelrod & Burghard, &c.Burgh-yard.

Certain Rent-timber to be used in repairing theGavel timber. Lords mansion-house, or some apperteining Edifice, and as some Records do specifie it, Rafters. Whence in an Ubi sup. Accompt-roll of Norbourne manour in East Kent, anno 31. Edw. 3. as a part of the Accomptants charge there, I read thus: Et de C C. refters de Gavel-tymber, de redditu, quilibet de longitudine xiij. ped. de quibus proveniunt de tenemento de Borewaresyle C. & de tenemento de Monynden C. Another like Roll of the same manour calls it Gavel refter. And much ofGavel-refter. the same nature was the next called Gavel-bord, whereofGavel-bord. in the last cited roll mention is thus made. Et de C C C. Gavelbordis de redditu, quilibet de longitudine iij. ped. dimid. unde, &c. These rents and services were wont to be charged upon their Wealdish Tenants, such as occupied their Wood-lands. And so was the next.

[Page]And by an inversion of the syllables, Swine-gavel. Gavel-swine. A wealdish service (I say) signifying Rent-hogs, or Rent-swine, so called when paid in kind, (Et de vij. s. x. d de iij. porcis de gablo venditis ad parocum de Maghefeld, &c. As it is in a roll Ubi sup. of accompts of Mayfield manour in Sussex, anno 11. Edw. 3.) otherwise Swinepaneges, Swine-paneges. Swine-money and Swine-money, and the like, when namely they were redemed with the peny, or with money, which was usually paid at Paroc-time, that is, when the Lord, or his Bailiffe and Tenants met upon the place in the Weald, to hold a Paroc, a Court-like kindParoc. of meeting, (whereof I have by me a record of some kept about Edw. 1. time) not much unlike the Forest Swaine-mote, where (inter alia) and accompt was taken of this service in particular, and generally of what hogs or swine had been taken in to feed and fatten the year past, or the last Pawnage or masting-time, and rent accordingly paid and received for the same. Hence I take it (from Paroc, I mean,) the name of that place by Bleane-wood near Canterbury, which we at this day call the Paddock, for the Paroc.

Sometimes written and called Wood-lode, Wald lode, Gavel-wood. and other while, by an inversion of the syllables, Woodgavel: a custome or service incident to some Tenants, to carry home their Lords wood for him. An old Ubi sup. Accompt-roll (sans date) of the Arch-Bishop of Canterburies manours, in South-malling, hath this mention of it in the Accomptants charge: Et de xviij. s. iij. d. ob. de fine cariandi Gavelwood de consuetudine. It often occurs in like records of divers other manours, under that diversity of names.

A certain measure of Rent-ale. Among the articlesGavel-sester. [Page] to be charged upon the Stewards and Bailives of the Church of Canterburies manours infra Cantiam, according to which they were to be accomptable, this was wont to be one: De Gavelsester cujuslibet bracini braciati infra libertatem maneriorum, viz. unam lagenam & dimidium cervisiae. Another old Record calls it Tolsester in these words: De Tolsester cervis. hoc est de Tol-sester. quolibet bracino per annum unam lagenam de cervis. as it is in an old book of the same Cathedral, amongst the rents of Assise of Halton manour in being undoubtedly the same, in lieu whereof the Abbot of Abbington was wont of custome to receive that peny mentioned by Mr. Selden, in his learned Dissertation annexed unto Fleta, newly published, cap. 8. num. 3. and there (by some mistake, haply of the Printer) termed Colcester peny, for Tolsester peny. Nor differs it (I take it) from what in the Glossary at the end of Hen. 1. Laws is called Oate-gavel. Oate-gavel.

A service charged upon Tenants, for example; InGavel-werk. Charing manour in Kent, an old Ubi sup. Rental whereof of Edw. 1. time hath it thus: Grenehelle Eadmundus filius Thomae de Grenehelle de uno jugo debet, &c.—arabit unam acram 6. pedes, & metet unam acram, dimid. & 9. pedes, de Gavelwerk. This admitting also of a transposition of the syllables, is somtimes found written Werk-gavel, in barbarous Latine, Werkgabulum, as in an Ubi sup. Accompt-roll of the Arch-Bishops manour of Tunebrugge (now called Tunbridge) of Hen. 3. time, and signified Rent-work, which was of two sorts, the one personal, by the Tenants person, which they called Manuopera; the other by his carriages, thence termedManuopera. Carropera, and they both met (I take it) in Villeins calledCarropera. Gaigneurs.

[Page]In an old Custumal of our Cathedral at CanterburiesGavel-noht. Gavel-fother. manour of Clyne in Kent, I find them thus coupled: De Gavelnoht vel Gavelfother de Ostreland. The latter seemeth to expound the former, shewing them both to import what at this day we call Rentfodder: the latter word in which composition cometh (as I suppose) of the Teutonick Voeder, or the GermanFodrum. Futer, which we at this day pronounce Fodder. Of the Feudists it is called Fodrum, to whom I refer such as desire a further explanation of the term, wherein the learned Hotoman (I take it) is more copious than the rest, in his Commentary De verbis feudalibus, in voce. Let them also have recourse to our learned Glossarist, in verbo Fodrum.

In the Custumal of the same Churches manour ofGavel-bred. Chatham in Kent, it occurs thus: Allocantur per annum pro Gavelbred ad herdemet. iij. sum. dimid. It is the same (I take it) which I find elswhere thus expressed: In pane ad Gavelbred, de consuetudine arantium & metentium, ij. sum. So an Accompt-roll Ubi sup. of Charing manour in Edw. 1. time. Nor is it probably any other than what in the Custumal In Archiv. Eccles. Cant. Averbred. of West-Farlegh manour in Kent is termed Averbred. Allocantur per annum pro averbred, iij. s. ij. d. It seems to be a proportion of food or victual allowed to the baser sort of Tenants, such as the Custumarii, Cotarii, Villani, and the like (the Gaigneurs) towards their coredy, or sustentation,Gaigneur [...]. during their employments in the Villein-services of their Lords, such as those reckoned up by the Authour of the Mirroir, chap. 2. sect. 28. where he saith: Et ascuns per villeins customes d' arrer, ower, charrier, sarclir, fauchir, scier, tasser, batre, ou tielx autres manners[Page]d' services, which were not alwayes attended with such allowance; whence my Authour goes on, adding, & ascun foits sans reprise d' manger. And thus far of the particular rents and services, whose names begin with Gavel, to which I might adde that of [...], occurring in the Laws of King Ina, cap. 44. Now to proceed to those ending with it.

Of which the first four, (Wood-gavel, Werk-gavel, Wood-gavel. Werk gavel. Swine-gavel. Corn-gavel. Swine-gavel, Corn-gavel) having their several expositions in their proper places, viz. in the former list of services, whose names begin with Gavel, I passe from them to the rest of like termination.

In the Conquerours, and some succeeding KingsPeny-gavel. Charters, made to St. Augustines Abbey at Canterbury, the present service occurrs by the name of Gabulum denariorum, the tithe whereof here excepted from these, was elswhere granted unto other Monks, whereof see Mr. Seldens History of Tithes, pag. 321, 330, 331. It was a rent usually reserved and paid in money, witnesse the mention and description of it without composition, between the Abbat and Covent of St. Augustines and the men of Thanet, whereof before in Gavel-corn, and speaketh thus:—Tenentur de praedictis Abbate & Coventu & Praedecessoribus suis per fidelitatem & relevium, & per redditum & servitium vocatum Peny gavel, viz. reddendo annuatim eisdem Abbati & Coventui & eorum Successoribus de qualibet swillinga dictarum xlij. swillingarum in festo S. Martini in hyeme decem & novem solidos & octo denarios, & de praedicta quarta parte unius Swillingae in eodem festo annuatim quatuor solidos & undecim denarios, & pro qualibit acra dictarum xxxviij. acrarum terrae de Swillingland[Page]in eodem festo secundùm ratam portionis redditus easdem xxxviij. acras terrae contingentes, &c.

In the Custumal of the Church of CanterburiesMalt-gavel. manour of Mepham in Kent, amongst the rest of the rents services there, this occurs for one: De xxj sum. iiij. bush. de Maltgavel, &c. It signifies Rent-malt, and is the same (I take it) that in another like Record (an old Rental of Eastry manour in Kent) is called Malt shot, and thus expressed there. De Malt shot termino Malt shot. circumcisionis Domini xx. d. But so called, I trow, when compounded for in money; otherwise, upon the same ground, Malt-peny, as the old Customal of theMalt-peny. same manour frequently nameth it.

So called, peradventure, in relation to some greaterLes-gavel. rent or service arising and paid out of the same land, that this, at some other part or season of the year (I guesse hereat by an old In Archiv. Archiep. Cant. Customal of Charing manour, where indeed I found it so:) and so Les-gavel, quasi Lesle-rent, or Lesle-service. I take it to be the same that in the Customals and Rentals of some other manours, I find written Lesyeld, and Lesgeld; unlesseLes-yeld, Les-geld. Leaf-gavel. it be mistaken for the next, Leaf-gavel, thus occurring in an old Accompt-roll of the Church of Canterbury: Et de xii. l. iij. d. ob. de annuo redditu assis cum Leafgabulo ad terminum S. Martini; which I conceive to be the same with what in a like Record of Hathewolden (now Halden) manour in Kent, is called Lef-silver: Les-silyer. Et de xviij. d. de Lef-silver in Hathewoldum. The old Custumal of Tenham manour in Kent, calling it Lyefyield, Lyef-yeild. thus explains it: Tenentes de Waldis non possunt arare terras suas ab equinoctio autumpnali usque festum beati Martini sine licentia. Et ideo, reddunt annuatim dimidiam[Page]marcam ad festum S. Martini, sive fuerit Pessona, sive non. Et vocatur Lyes-yeld. Whereby it seems to be a tribute paid by certain Wealdish Tenants, for liberty to plow their grounds during a certain season of the year, viz. tempore Pessonae, which, because of some prejudice that might thereby redound to the Lord in his Pawnage, was not permitted without his leave.

Gabulum mellis, as the old Ubi sup. Rentals of ChistletHunig-gavel. manour in Kent seem to term what some ancient Accompt-rolls Ubi sup. of Otteford and other manours call Hunigaved, both one and t'other signifying Renthoney.

Item de Weregavel vj. d. aliquando tamen plus, aliquando Were-gavel. minus. Thus in the In Archiv. Eccles. Cant. Custumal of the Canterbury Cathedrals manour of Leisdowne in the Isle of Shepey. It seems to be a rent paid in respect of Wears or Kiddels, to catch fish withall, pitch'd and plac'd by the Sea-coasts, and, until Magna Charta forbade it, in some rivers too, whereof see further in Sir Hen. Spelmans Glossary, verbo Kidellus; and in Sir Edw. Cokes Institutes, part 2. pag. 38. and elswhere.

In an In Archiv. Archiep. Cant. Accompt-roll of the manour of ReculverTwy [...]gavel. in Kent, anno 16. Edw. 3. this service, in the charge there, thus occurrs: Idem respondet de 814 & dimid. ped. clausur. hayag. fac. circa manerium, ex consuetudine, unde de Twygavel 200. I meet with it elswhere also, but with explanation no where. Taking liberty of conjecture, I conceive it to be some double kinde of service by the Twy preposed, as elswhere Twysket (anTwy [...]sket. imposition upon the Tenants of Aldington manour by Romney mersh, for maintaining the Sea-coasts there, [Page] and other like defences against inundations:) is termed Duplum, as thus: Computus de duplo Wallae, quod vocatur Twysket. So the Accompt-roll of that manour in the sixth year of St. Edmunds Archbishoprick.

Is termed of our learned Glossarist, verb. Berewica, Bere-gafol▪ by Tributum hordeaceum: elswhere, viz. verb. Gabella, by Redditus hordeaceus. You shall finde in the 60th. of King Ina's Laws, in Mr. Lambards Archaion. If it were not Rent-barley, I should take it for the Drincelean, Drincelean. occurring, as in the last chapter of the Leges Presbyterorum Northumbrensium, in Sir Hen. Spelmans Councils, pag. 502. So also in the 87th of King Cnutes Laws in the Archaion, and in this latter place rendred in the old Version in Brampton, (just as Oryncelan, mistaken for Drincelan, in the old Glossary at the end of Hen. 1. Laws) by Retributio potus. If so, it seems to be the same with what was afterwards called Scot-ale, whereofScot-ale▪ you may read in Matth. Paris, the Charter of the Forest, Bracton, the Mirroir, and elswhere. King Hen. 2. in his charter to the citizens of Canterbury, acquits them of it: Ita quod (saith he) Vicecomes meus Cantuar. vel aliquis alius Ballivus Scotalam non faciet. It's sometimes called Potura, and was a contributionPotura. by the men and Tenants towards a Potation, i. e. a Drinking, or (as some yet speak) an Ale, provided to entertain the Lord or his Bailiffe withall, coming to keep Court, or the like, raised by a proportion or rate (more or lesse) according to the better or meaner condition. In an old In Archiv▪ memorat▪ Custumal of Southmalling manour in Sussex, in that part of it intituled, Bortha de feld, I read as followeth: Item si Dominus Archiepiscopus fecerit Scotall. infra boscum, quilibet terram tenens[Page]dabit ibi pro se & uxore sua iij. ob. & vidua vel Kotarius j. d. In the Ubi sup. Extent of the manour of Terring (to give you another instance) anno 5. Edw. 1. this Scotale service is thus remembred: Lewes. Memorandum quod praedicti tenentes debent de consuetudine inter eas facere Scotalium de xvj. d. & ob. ita quod de singulis sex denar. detur j. d. ob. ad potandum Bedello Domini Archiepiscopi super praedictum feodum. Bracton saith, It is sometimes called Filctale (sol. 117. b.) which our learnedFilctale. Fildale. Glossarist, in voce; correcting, reads Fildale, and is in some sort followed by Sir Edw. Coke, Institut. part 4. pag. 307. With the Varia lectio before Bracton, I should rather read it Gildale, and then indeed, as itGild-ale. comes neerer the other Scot-ale, so with that better answers to our present Bere-gafol; Gild, Gafol and Scot, being as it were Synonyma, and univocal.

Observed to be alwayes paid by the Tenant per For-gavel. avail to the mesne Lord, not to the chief, and thence called in some old records and deeds, Foris-gabulum, quasi extra (vel praeter) gabulum quod Domino capitali debetur: just like the French mans Surcens. Will you have an example? John then the son of Richard at Horsfald, by his In Archiv. Eccles. Cant. deed, dated anno 1242. gives to Warin of Stablegate, a parcel of land, to be holden to him and his heirs, or to whomsoever he shall give, sell, or assigne it, (a clause without which, by the account of those elder times, land was not alienated from the proper See the Mirroir, p. 16. heirs:) paying to the Prior and Covent of Christ-church Canterbury (Lords, it seems, of the Fee) certain annal rent and hens, and to the Feossor and his heirs j. d. yearly, de forgabulo, &c. Some other instances of this kind might be added, but I must contract, [Page] passing over Metegavel, whereof mention isMete gavel. made in the old Glossary, at the end of Hen. 1. Laws, and there in Latine rendred Cibi gablum. Now a word or two of Gavelet.

This, I must tell you, was no Rent or Service, butGavelet. Gavelate. betokeneth a rent or service with-held, denied or deteined, causing the tenements forfeiture to the Lord; whence those words of Fleta, reciting the Statute De Gavelleto: Et ex tunc vocentur tenementa illa (not Forschoke, as in Tottells Edition of the Statute, followed by Cowell in his Interpreter, but) Forisfacta. See Fleta, pag. 119. It is taken (I confesse) of some for a Synonymy with Gavelkynd, and to import land letten for rent, or the like; and per me licet; the acception shall passe for me, as warrantable enough from the latitude of the term; but in the sence wherein the Statute (10. Edw. 2.) and other ancient records (all that I have ever view'd) do take it up, it seems to carry no other meaning than the deteinment of rent or service, whence that of Instit. par. 2. pag. 204. Sir Edw. Coke: Gaveletum (saith he; I adventure to correct it so, as supposing it corruptly printed Gavelletum) is as much to say, as to cease, or let to pay the rent. Breve de Gavelleto in London est breve de Cessavit in biennium, &c. pro redditu ibidem, quia tenementa fuerunt indistringibilia. Thus he. In the Kentish Eyre of Hervicres de Stanton, recorded in a Manuscript of St. Austins at Canterbury, among the Pleas there concerning the Abbat and Covent, pag. 106. it occurrs thus: Et postea per quandam consuetudinem quae vocatur Gavelate usitatam in comitatu isto de terris & tenementis de Gavelkinde, pro redditibus & servitiis quae à retro fuerint de eisdem per plures annos devenerunt eaedem terrae in manus[Page]cujusdam Abbatis, &c. I have often met with the word in old Accompts of the Arch-bishops manours, from which I could present you with a cloud of instances, but for brevity sake, I shall trouble you but with one, and that taken from a In Archiv. Archiep. Cant. Roll of Ringemere in Sussex, in Edw. 3. time. Item (saith the Roll) de defectu redditus cujusdam curtilagii jacentis Gavellate quod fuit Aliciae Hammerii, per annum in manu Domini iiij. d. The sence, I trow, which I gave you of Gavelet, is by this time sufficiently asserted, which, if compared with the term it self, will appear very natural, being derived and compounded of Gavel and let, or late; a word (this latter) fetch'd at first (if I mistake not) from the Teutonick Laeten, signifying, as we are taught by Kilianus in his Etymologick Dictionary, linquere, relinquere, omittere, dimittere, just (I take it) as our old Saxon [...] seems to do. The Germans have it Lassen, the French Laisser, we at this day Let. The termination is found in some other words now antiquated and obsolete as well as this: for example, in Hereslit, which by the common opinion of Expositours, sounds as much as armorum depositio, or exercitus desertio, coming from Her, (saith Lindenbrog in his Glossary) exercitus, and lassen, deserere. Sir Hen. Spelman (I confesse) as to this latter syllable, is of another mind, writing it slit, and slite, and construing it by fissura, diruptio, separatio, and so will have Hereslit to signifie diruptionem exercitus. Hereslit. For my part, under favour, I conceive, that between the latter syllable in Hereslit, and the latter syllables in Laghslite, Manslihte, Theofslihte, and the like, there is this difference to be observed, that namely in the former, Hereslit, the latter syllable is lit, [Page] (the s. being here a note of the See Butlers English Grammar, pag. 19, 34, & 35. Genitive case, and perteining to the former syllable:) signifying desertio, derelictio; in the other, slihte, slyhte, or slite, betokening, ruptio, violatio, &c.

As Rent and Service in general was understood byGavel-man. Gable, Gavel, &c. simply, and particular rents and services denoted by an application of it to particulars, as in the former compounds, so the man, the Tenant that paid the one, and performed the other, was sutably called of old, as in the 6th. and 22th, of King Ina's Laws, [...], more of late, Gavelman: whenceGafol-gylda. (for example) that passage in an In Archiv. Archiep. Cant. Accompt-roll of Terring manour in sussex, anno 11. Edw. 1. Et de iij. s. vj. d. de incremento redditus de Simone Theodulsi, de una virgata & dimid. cum uno messuagio in Salwenton—traditis eidem Simoni hoc anno in servitium de Gavelman, quantum Gavelman debet de tanto tenemento. He was one of those (I conceive) that in a fore-cited Extent of the same manour, are thus differenced and distinguished from other sorts of Villeins: Villani de Terring qui vocantur Gavelmanni. By an endorsement upon an old Ub sup. Custumal of Charing manour, I find that Otteford manour had its Gavelmanni. And amongst the then Tenants of Charing manour, and the services charged upon them in that Custumal, I read of some there termed in one place Gavelikendeyes, in anotherGavelikendeys. Gavelmanni. The term, I conceive, may properly be given and applied to our Kentish Tenants in Gavelkynd.

One thing more I have to note, before I leave Gable, Gavel, &c. viz. that where it comes into mention (as it often doth, in the Reddendum of deeds, or feoffments) [Page] with Mala, it there properly signifies, and isMala. strictly to be taken for Services or Customes; as on the other side, Mala, there as properly betokens Rent, or Ferm, which being chiefly two-fold, was distinguishedWhite-rents, Blanc ferm. Black-rents, Black maile. into White-Rents (Redditus albi, Blanc ferm) and Black-Rents, (Redditus nigri, Black maile:) that, paid regularly in pecuniis, in silver, and therefore called White; this, Black, because, for the most part paid in pecude, or the like, say See Spelm. Glossary, verb. Ferma alba. Coke, Instit. part 2. 19. and 44. some: if I might add an expression, I should rather in blado, or, if that be not full enough, in annona, comprehending all sorts of provision, wherewith the Lords table was furnished, and himself and family fed. And consequently, where I meet with a Tenant holding per gablum & malum, as there were many such of old, and I could instance in some, as in Charing, Monkton, Reculver, Broke, and other manours in Kent, I should, if I were to play the Expositour, render it per servitium & fermam, velredditum. The tenure continues to this day in Scotland, whence they Skenaeus de verbor. signifie. verbo Firmarius. conserve Firmarius by a Mail-payer, a Mailer, or Mailman. The word (as I conceive) is originally British, coming of their Mael, which in the Welsh Vocab▪ is in Latine rendred Luerum, emolumentum, quaestus, as Maelio, the verb, Lucrari, quaestum facere. The Saxons used it in the same sence as with the Latines, vectigal, stipendium; whence this in the Chronicle of Abbingdon, anno▪ M L. [...]. Which the Latine Chronicle of Flor. of Worcester, and others give thus: 1051. Rex Eadwardus absolvit Anglos à gravi vectigali, &c. Hence also thus in the same Chro. Mlv. [...] [Page] [...]. 1. (according to the same Latine Histories) Classis Algari Comitis Leogecestram devecta, stipendium, quod eis promiserat, ibi expectavit.

By this time, the Reader is satisfied (I hope) touching the true construction of Gavel, Gafol, Gable, or however else he shall chance to find it written, both as the word is taken simply, and as it is used besides in composition, in each importing Cens, i. e. Rent, either in money, provision, or works. And being thus far advanced in the dispatch of our positive Proposition (what is the true sence of Gavelkynd) I must now desire the Reader, in the next place to observe and considerLand Censual. Land not Censual. with me, that, as there are divers sorts of land to be found, both in this County and elswhere, by the nature of their Tenure not Censive, or Censual, nor of the kind to pay or yeild Gavel (that is, such Rent, or Rentservice, whether in money, provision, or works, as ariseth from ignoble, base, and plebeian Tenures, in which onely Gavel is conversant) to those of whom such lands are holden, those namely holden in Alodio, in Frankalmoigne, (or Mortmaine, as called Hotoman. de verb. Feudal in verb. Manus mortua. also abroad, because yeilding the Lord no profit, as being in a dead hand) in Knights-service, in Frank fee, and the like; so is there also, such as that holden in Socage, or Burgage Tenures, or the like, (though free) which contrariwise is Censual, liable to Rent, in some one or more of the kinds premised. To distinguish therefore, if not generally what land is, from what is not, of Gafol gilden nature, or of the kind to yeild or pay Cens, yet specially to put a difference between (what alone is properly and anciently called See Spelm. Glossary, verb. Feudum scutiferum, & Feudum ignobile. Fee) [Page] Knight-service land and it, under which double head is comprised the generality of our whole Countries lands, answering, as to that dichotomy of Chivalry and Socage Tenures, whereunto all the land in England in the hands of common persons is Cowels Interpreter, verb. Chivalry. referred, so also to that known distinction of their lands in Normandy (from whence, as some Lamb. Peramb. p. 545. surmise, we received our Gavelkynd, whereof more hereafter) unto Fief de Haubert, and Fief de Roturier (that is the Noblemans Fee, and the Husbandman or Ploughmans Fee:) for distinction sake, I say, of Censual or rented land, or Rent-service land, from what, like Fee properly so called, being holden per liberum servitium armorum, yeilded no Cens, Rent, or Service, whether in money, provision, or works; the former of the twain was called Gavelkynd, that is, (as Mr. Lambard rightly in the second of his fore-mentioned conjectures) of the kind, or nature to pay or yeild rent, or land holden, not properly in Fee; but as the Feudists are wont in this case to distinguish contractu censuali, as being letten out with, or under condition, to pay Cens or Rent, or with a reservation of Cens or Rent, like unto those in the charters of the Conquerour, and (his son) Hen. 1. the one to Battell, the other to Reading Abbeys, expresly called Terrae censuales, and there opposed to Fee,Terrae censuales. witnesse this provision occurring in each charter: Terras censuales nec ad feudum donet, nec milites, nisi in sacra veste Christi faciat, nec de possessionibus Ecclesiae quisquam teneat aliquid feudaliter absolutum, sed ad censum annuum & servitium Abbati & monachis debitum. See Clement Reyners Apostolatus Benedictinor▪ in Anglia, tract. 2. pag. 137, & 154.

[Page]It is no simple word (Gavelkynd) but a compoundKind (in Gavelkynd) what signifying. of Gavel and kynd: the latter syllable whereof (to proceed on to that) cometh and is contracted of the Saxon [...], a word frequently occurring in the Saxon Sermon set forth and published by Mr. Fox in his Acts and Monuments, and again of late by Mr. Lisle, as an Appendix to another Saxon piece, a Treatise of the old and new Testament; in the version or translation of the word they both concur, rendring it in our modern English As doth also Mr. Wheloc in his Latine version thereof in his Bede, pag 471. Nature. To give an instance or two: [...], i. e. after true nature. [...], i. e. it is naturally, and the like. I [...] will peradventure be objected, that Mr. Lambard, in his Perambulation, pag. 495. meeting with the word several times in the Saxon will of Byrhtric of Mepham, in this often repeated passage there: [...], alwayes translates it, (after the old Latine version in Textus Roffensis) within that kinred, and in a marginal note against it, calleth it, a kynd of gift in tayle. Gecynd misconstiued by Mr. Lambard. But, for reply, if I may have leave freely to deliver my sence, that version is not good: for, under favour, [...] there importeth not (as that Translation would) kinred, but rather kynd, nature, sort, quality or condition, and consequently [...] there, if rightly, is thus (I take it) and not otherwise, to be Englished, viz in that kind, or, after that nature, or, upon the same terms, or, with the same condition, having relation (if you mark it) to the tie upon the next precedent legacies, gifts or devises of other land, charged either with alms, or with rent, in way of alms, payable thereout by the Legataries or Devisees, for the Devisor or Testator his souls health. Had it been otherwise, [...] [Page] ted books) the following passage in a Charter recorded in a Lieger of the often alleaged Cathedral at Canterbury of certain land (all which the party had) in Southwe [...]k, given to that Church by Norman le Wautier, in the year of Christ 1204▪ which thus speaketh: Et quia praedicta terra de libero catallo, & proprio perquisito meo fuit, & non de aliqua hereditate parentum meorum, ideo De [...]minde & S. Thomam Martyrem, & Sanctos Cantuariensis Ecclesiae, & conventum monachorum ejusdem, heredem▪ This seems to thwart Glanvil. lib. 7. c. 1. fol. 46. [...]. Potest itaque quilibet, &c. and Bracton, [...]ol. 6 [...]. b. meum legitimum inscribo, & hac mea carta in perpetuum constituo. To which many more such like might easily be added from the same Promptuarium. The F [...]udists in this case distinguish between Feudum novum & antiquum, as may be seen in Vulteius, de Feudis, lib. 1. cap. 10. num. 73. In the next place, the Reader may please to observe with me, that as Cap. 66. [...]ol. 164. b. Britton distinguisheth of a double tenure in Mortmaine, the one called Almoigne, or Aumone, simply, the other Frankalmoigne, describing the former to be a gift in alms, but not free alms, because (saith he) a certain service is reteined or reserved to the Feoffor, cap. 66. fol. 164. [...]. so this in hand is no alienation in Frankalmoigne: the F [...]offers (it seems) not intending to give the land in that absolute manner; but, in token of Seigniory, to reserve something of service to themselves, phrase▪ their gift, not in puram eleemosynam, or in liberam eleemosynam, (one of which words, viz. either pura or libera, is (some say, others say Bracton, l. 2. c▪ 10. fol. 27. b. Coke, Instit. part 1. [...]ol. 94. b. both) essential to the making it a tenure in Frankalmoigne, and to the excusing it from service) with which the next following words (and to Gavelkynd) could not have consisted; pure alms, or Frankalmoigne, excluding the [Page] return of all but divine services and burthens; they phrase it not therefore, I say, in puram, or liberam ele [...] mosynam, but onely in perpetuam ele [...]mosynam, and to Gavelkynd; by the former of these words, investing the Hospital with an estate in perpetuity; by the latter, and the Reddendo following, saving and reserving to themselves a quit-rent, as it were, in signum dominii; that is, they reserved to themselves the service, and granted to the Hospital the usum fructum: or they granted the utile dominium to the Hospital, and reserved the directum to themselves. So that whereas Bracton and Lib. [...]. c. 19. fol. 4 [...]. b. Item l. 4. fol. 263. b. Coke, Instit. part. 1. fol. 1. b. verb▪ Fee simple. Fleta, lib. 5. c. 5. parag 26. others make mention of a tenure in feodo quoad servitia, & non in dominico, referring to the chief Lord; and of another in feodo & dominico, & non in servitio, relating to the Free-holder, the former may here be referred to the Feoffors, the latter to the Feoffees in this deed. But this Parergon. And now to wind up all (concerning this first Proposition) and not to enlarge with any further instances (wherein I might be infinite) for asserting this truth of our Gavelkynds derivation: Gavelkynd, we see, is the lands right name, whose Etymologie was never wrested to Gife-eal-cyn, whose signification of Censual, Rented, land, or Rentservice land, was never questioned till that within our fathers memories, one and all, by a kind of errour, jure veluti successionis, transmitted to them, run a head in a wrong and mistaken derivation.

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PROPOSITION II.

The Nature of Gavelkynd-land in point of Partition.

DIsallowing then Gavelkynd (as to the name of it) to be derivative from Partition, our next enquiry shall be, if (on the contrary) Partition ow it self to Gavelkynd, or to what other cause. Before I further enter into which research, or offer any resolution to the Quaere, give me leave to preface it with certain rules, grounds and principles, in this case fit to be premised. You are then desired to take notice, that here in England, we acknowledge no land (no inheritance) partiblePartible land, and Parceners two-fold. or divisible, but what is so either (first by Law, as in the case of Females, succeeding for lack of Males, whether in Knight-service land or Socage, which in this point differ not, or what (secondly) is so by Custome, as in our present case of Gavelkynd, and such like? no parceners of land (I say) in point of inheritance or succession, but either according to the course of the Common Law, or by Custome, as termed by Littleton, and our more modern books, the same in effect with what of elder time, in Bractons Fol. 278, 374, 418. language, are called, 1 Ratione personarum, 2 Ratione rei vel terrae. In the next place, let me adjoyn what in this point of Partition is delivered by those two ancient and famous Sages of our Law, Glanvill, and Bracton, whereof the former Lib. 7. cap. 3. speaketh thus: Cum quis ergo hereditatem habens moriatur, si unicum filium heredem habuerit,[Page]indistinctè verum est, quod filius ille patri suo succedit in toto. Si plures reliquerit fili [...]s, tunc distinguitur utrum ille fuerit miles, sive per feodum militare tenens, aut liber Sokemannus: quia si miles fuerit vel per militiam tenens, secundùm jus regni Angliae primogenitus filius patri succedit in totum, ita quod nullus fratrum suorum partem inde de jure petere potest. Si verò fuerit liber Sokemannus, tunc quidem dividetur hereditas inter omnes filios quotquot sunt per partes aequales▪ The S [...]t [...]sh reading i [...], si fueri [...] Socegium ill ud an [...]qui [...]ù [...] divisum. See Reg. Majest. lib. 2. c. [...]7. si fuerit Socagium, & id antiquitus divisum: salvo tamen capitali messuagio primogenito filio pro dignit [...]te a [...]sneciae suae; ita tamen quod in aliis rebus satisfaci [...]t aliis ad valentiam. Si vero non fuerit antiquitus divisum, tunc primo▪ genitus, secundum quorundam consuetudinem, totam hereditatem obtinebit; secundùm autem quorundam consuetudinem, postnatus filius heres est. Item si filiam tantùm unam reliquerit quis heredem, tunc id obtinet indistinctè quod [...]e filio dictum est. Sin autem plures filias, tunc quidem indistinctè inter ipsas dividetur hereditas, sive fuerit Miles, sive Sokemannus pater earum, salvo tamen primogenitae filiae capitali messuagio sub formâ praescript [...], &c. Thus Glanvill, harmoniously followed, and almost verbatim of Li. 2. c. 34. [...]ol. 76. [...]. Vid. Flet. l 5. c 9. Parag. 15. Bracton, whose words on this argument are these: Si liber Sockmannus moriatur pluribus relictis haeredibus, & participibus, si haereditas partibilis [...]it & ab antiquo divisa, haeredes (quotquot erunt) habeant partes suas aequales, & si unicum fuerit messuagium, illud integre remaneat primogenito, ita tamen quod alii habeant ad valentiam de communi. Si autem non fuerit hereditas divisa ab antiquo, tunc tota remaneat primogenito. Si autem fuerit Sockagium villanum, tunc consuetudo loci erit observanda. Est enim consuetudo[Page]in quibusdam partibus, quod postnatus praefertur primogenito, & è contrario, &c. Hereunto let me subjoyn in the third and last place, that common principle amongst us, and obvious in our books, viz. that prescription in Gavelkynd-land, as it is not Lamb. Peramb pag. 538. Coke, upon Littl. Sect. [...]65. needful, so neither is it good. The reason is, whereof I pray take notice with me, that (as Mr. Lambard hath it) the custom of Gavelkynd is general, spreading it self throughcut the whole Shire, into all lands subject by ancient Tenure unto the same, such places onely excepted, where it is altered by Act of Parliament, and therefore 5. Edw. 4. 8. and 14. Hen. 4. 8. it is said, that the Custome of Gavelkynd is (as it were) a Common Law in Kent.

Having thus premised, I shall now make it my endeavour to shape such a resolution or answer to the propounded Quaere, as may consist with these principles. And briefly, my answer here is negative, viz. that Partition doth not owe it self barely to Gavelkynd, either ex vi termini, by reason or force of that denomination, or ratione rei, from the nature or condition of the land; that property alone of the lands being Gavelkynd, or so called, not sufficing to render it partible. First, as for the name, the term, that that will in no wise bear it, is (I conceive) a thing sufficiently cleared in our Discourse upon the first Proposition, wherein the term is vindicated from that mistaken construction, by the errour of latter times obtruded on it, nor can such a derivation any way consist with the premised principles, Partition in Gavelkynd-land, from the term or denomination of it, being reducible to none of the there assigned causes of Partition. As inconsistent [Page] also with those causes and grounds of partition (that dichotomy or bipartite distinction of partible land into, 1 that by Law, and 2 that by Custome) is the attributing that property of partition in Gavelkynd, to the nature or condition of the land, there being no mention of any such third sort of partible land to be found in our Books. If it be replied, Yes surely; forObjection. Bracton is expresse for a partition ratione re [...] vel terrae, in the places above quoted, that especially where he saith (as fol. 374. a.) sicut de Gavelkind, vel alibi ubi terra partibilis est ratione terrae. Such indeed are hisSolution. words, and withall 'tis not to be denied, that such is the nature and condition of Gavelkynd-land, being not onely subject and liable to what the Civilians in their phrase are wont to call, Judicium, or Actio familiae herciscundae; De communi See Fulberts Dialog. part 2. cap. 6. Of Pa [...]ceners. dividundo, the Feudists, Adaequatio, Paragium, we in our language term it Coparce [...]ary, Land-shifting, and the like; but withall so subject to it, as that partition doth alwayes accompany land of that nature▪ and is indeed as inseparable from it as the contrary from Knight-service land. Whence then is it? Before I answer, observe first with me for an answer to these passages in Bracton, that as before each of them, in one Fol. 76. [...]. place, we have his si haere [...]itas partibilis sit, & ab antiquo divisa, so likewise after them, in another Fo. 428. [...]. quem sequitur Fleta, lib. 6. c. 48. parag. 2. place, his tenementum partibile inter plures cohaeredes—& sempe [...] solet dividi ab antiquo. Whereby (conferring place with place, for reconciling Bracton to himself) we may plainly understand what is meant by those two me [...]ne or intervening passages in Bracton, namely, that not the bare nature of the land, but ancient customes joyn [...] concurrence with it, is intended, [Page] and of him implied in each place, though not expressed, to render the land or inheritance partible. The like help, under favour, must be allowed Glanvill, to reconcile his, Sciendum autem quod si quis liberum habens Socagium plures habuerit filios qui omnes ad hereditatem equaliter pro equalibus proportionibus sunt admittendi, lib. 7. cap. 1. fol. 46. a. to his, Si vero fuerit liber Sokemannus, tunc quidem dividetur hereditas inter omnes filios, quotquot sunt per partes equales, si fuerit Socagium & id antiquitus divisum, eod. lib. cap. 3. fol. 49. a. Briefly, were it so that Gavelkind-land were partible by vertue either of the name or nature of it, without accession and concurrence of Custome, then all lands as soon as granted out in Gavelkynd, whereof examples are obvious, and till the Anno 18. dw. 1. Statute of Quia emptores terrarum, frequent, were ipso facto partible, contrary to that common and received ground, whereof before, that none are such, i. e. partible with us, (except that descending for want of males to females) but what are so by custome. As then not to the name, so neither to the nature of Gavelkynd-land alone, is such partition owing.

And is it then to Custome or Prescription? For the latter, 'tis clearly repugnant to what is before laid down by way of grounds or principles, it being a known rule in our Law, and obvious in our books, that Prescription in our Kentish Gavelkynd, as it is not wanted, so neither is it admitted to come in plea. What say we then to Custome? Surely, since neither to the name or nature of the land, nor to Prescription, nor yet (neither) to the Common Law so diametrically opposite to it; to that, I mean to Custome, it is, or I [Page] know not else to what, that this partition mainly owes it self. Agreeable whereto is that of Perambul. fol. 5 [...]4. Mr. Lambard, where he saith, that no Gavelkynd partition could be challenged, but onely where the custome of division had prevailed, and that, Gavelkynd was not tried by the manner of the Socage services, but onely by the touch of some former partition. But if so, then an objection here meets us resolved into a question thus, What shall then be said to Gavelkynd land of novel Tenure, upon the grant of lands, [...]ill then happily holden in Demesne, to one or more persons in Gavelkynd, as was usual before that Statute of Quia emptores terrarum, and until when a man might create in his land what Tenure he pleased, granting out (as Fol 36. [...]. and fol. 4 [...]. [...]. Bracton hath it) in Socage, what he held in Knight-service, and è converso? what, I say, shall we resolve concerning the point of partition here? since no particular custome or usage of partition had ever took place, to give to such division either foundation or precedent. We are here (me thinks) threatned with a Dilemma: for either the land was not partible,Dilemma. and why then called Gavelkynd? or, if partible, yet not by custome, being but newly turn'd from some other▪ Tenure into Gavelkynd, and wanting both Time and (the daughter of it) Usage, (the Coke, Instit. part 1. [...]ol 110. b. and fol. 113. b. essentials of a custome) to render it partible that way. Here then is work for an Oedipus, but the resolution of the main doubt, to which I will now more closely apply my stile, will at once clear both.

Truth is then, that 'tis neither from Custome alone, nor yet from the nature of Gavelkynd-land alone, that this partition springs, but partly from the one, partly from the other, and so from both together. It must [Page] be granted that Gavelkynd land, ex sui naturâ, is partible thus far, and in this sence, that by an inherent quality, it is capable of partition by Custome; that indeed may and doth render it partible, as Knight-service land properly it cannot, by reason of a repugnancie thereto in the nature thereof: but in this respect it differs not from Socage land in general, which by the nature of it, is capable of partition, and by Custome may be, and in many places extra Cantium is partible, where the plea (I take it) ought to run, quod terra illa à toto tempore, &c. partibilis fuit, & partita, agreeable with that of Glanvill, si fuerit Socagium, & id antiquitùs divisum, which Bracton seemeth somewhat more fully to explain by his, si haereditas partibilis sit, & ab antiquo divisa. Now then, reddendo singula singulis, that such land is partibilis, i▪ e. partible, (the former part of plea) is, in Kent, from Gavelkynd, elswhere, (in particular manours at least) from Socage; that it is, or rather was antiquitùs partita, i. e. anciently parted (the pleas latter part) is from Custome or Prescription: Partition in the mean while in our Gavelkynd, being but a single property or branch thereof induced by Custome; the term in its full latitude comprehending all other properties accompanying land of that nature and tenure, such as Dower of the moyety, Suffering for felony without forfeiture of estate, and the rest conteined in the Kentish Custumal, as properly depending of Gavelkynd as partition doth, and in respect whereof the land may as well be called Gavelkynd, as because of Partition.

But admitting Socage-land to be generally, by theObjection. nature of it, consuetudine mediante, capable of partition, as well a Gavelkynd, how comes it then to passe [Page] (will some say) that this partition-property is more appropriate to it than Socage-land in general, and that they so much differ in their terms? From the agreement of the Kentish-men with the Conquerour, [...]aith the common opinion. I shall answer that anon. In the mean time, said we not but now, that Custome is the thing whereto we ow this partition? And if so, why then seek we any further after its original? Customes, we know, cease to be Customes, when once they can be traced to their first beginnings, it being the main essential part of a Custome to be of an unknown rise. But be it so, that Custome carries such a strokeObjection. here, what kind of Custome is it, or how shall we find such a Custome for it, as may consist with Gavelkynd-land of novel Tenure, whereof before so often? Hic la [...]or, hoc opus est, here's the point indeed. Why, inSolution. short it is no other than a custome generally spreading it self throughout the whole Countrey in land of that nature. What elswhere, I mean in other Shires and Counties, they properly call by the name of Socage, whether free or base, we here in Kent are wont to call by the name of Gavelkynd: or if you please (in Peramb. p. 545. Mr. Lambards expression) all Socage▪ service here properly so called, is clothed with the apparel of Gavelkynd, and under it, in a large acception, is understood all such land within the County, as is not Knights-fee, or Knights-service land, the term serving here, as that of Socage elswhere, to contradistinguish i [...] from Knightservice land, as Fief Roturier, or rather [...]nheritence Roturier (all other being improperly and corruptly called Fief, or Fee, that is not holden militiae gratiâ, the ground of all Hotom de [...] l. 2 tit. 5 [...]. p [...] ag. [...]. Item Disput. c. 5. Spelm. Gloss i [...] Feud. scuti [...]ero, p. 260. Fees) is used in Normandy to difference [Page] that from Fief de Haubert, or Noble Fief. Now into all land of this kind, by a general or universal custome of the whole County, hath this property of partition been introduced; insomuch, as what land was granted out in Gavelkynd, by such as before held it in D [...]mesne or the like; as, for want of time and usage, it had no particular custome introductive of that property of partition, so neither did it want the same, the generality of the Custome extending it self to all Censual land, or land letten out for Cens, and sufficing to render it partible, as occasion should be offered, though but newly dimised. To this purpose Peramb. pag 536. Mr. Lambard: Although (saith he) i [...] were so that the land were never departed in deed, yet if it remain partible in nature, it may be departed whensoever occasion shall be ministred. Granted out, I say, and holden in terms for Cens, conceiving a necessity of that or the like expression in the Habend [...]m, or other part of the grant, to make it capable of this and the other properties incident to Gavelkynd, not intending here the very numerical word or term (Gavelkynd) but that or some other of equivalent sence and signification with it, for example, Reddendo such or such a sum de gablo, de censu, and the like (whereof, for illustration sake, expect some copies of old grants in the Scriptu. 1, 2, 3. Appendix to this Discourse.) These indeed, & such as these, were the more usual expressions in elder grants, that of Tenendum in Gavelkynd, & the like, being sought of me in vain before H. 2. dayes, nor afore-time doth the term occurr in any writing or monument whatsoever, save onely in this passage in Spot (St. Austins Monk and Chronicler at Canterbury) who [...]aith, that anno 1063. (Abbas) tradidit [Page]terram de Dene in Gavelkende Blakemanno & Athelredo [...]iliis Brithm [...]i. But from Hen. 2. dayes downwards, it is obvious in many grants of land recorded and extant in the Liegers of Christ-church Canterbury, the la [...]e Abbey of St. Austins there, and many other of the Kentish religious houses, until about the time of that Anno 1 [...]. Edw. 1. S [...]at [...]te, Quia emptores terrarum, which forbidding the letting out of land by any man to be holden of himself, and consequently cutting off all new Tenures, and the creation thereof, stopped the current of all such grants of land in Gavelkynd for the future.

That such an expression, as Tenendum in (or ad) Gavelkynd, or the like, was necessary to render the granted land partible, after the custome of Gavelkynd, without the help of Prescription requisite in partible land elswhere out of Kent, may in part appear by a Record of a controversie happening now full 400 years agone, between one Burga, sometime the wife of Peter de Bending Plaintiffe, and the Prior and Covent of Christ-Church Canterbury, Deforciant or Defendant, touching the moiety of the manor of Well, by them granted to her said husband ad feodi firmam, challenged by her See Bracton, lib. [...]. tract. 6. c. 13. which laid to chap. 15. [...]od. tract. the instance there seemeth to be a Kentish case concerning a widow of Graven [...]y (anciently written Grav [...]nel) by Feversham. tanquam francus bancus suus, which controversie was debated and decided in Eire, and is recorded in the Liegers of that Church, from whence I shall present the Reader with a copy of it, not unworthy his perusal in the fore-remembred Appendix, Scriptura 5. Neverthelesse, it will here I think be necessary, that we distinguish times: for what at first in Kent was only partible, because of the Tenure in Gavelkynd, I perswade my self was afterwards, in tract of time, partible, and did communicate with Gavelkynd-land in that [Page] property, by being Socage land, though not expressely holden in Gavelkynd, it sufficing at length to shew (as P [...]r [...]mb. pag 538. Mr. Lambard hath it) the Custome at large, and to say, that the land lieth in Kent, and that all the lands there be of the nature of Gavelkynd. By what means this was wrought, or by what degrees our Socage land arrived at this universality of partiblenesse, is not so easily discovered▪ That the sundry favours of Gavelkynd▪ custome should iutice many to creep into it, and by one and one (upon occasion of the intestine troubles that ensued the deprivation of King Richard the second) to shroud and cover themselves under the safety and shadow of the priviledges that do wait upon it; is an opinion of some, whereunto I cannot subscribe, as conceiving no Tenures in Gavelkynd to be so late as Rich 2. dayes, which this opinion would infer; with what consistencie with the Anno 18. Edw. 1. Statute of Quia emptores terrarum, made so long before, and prohibiting the creation of new Tenures, I cannot see. But to let the manner passe, the thing (the over-spreading the Countrey in processe of time with this Tenure) is very obvious and apparent, witnesse an ancient Statute (made anno 18. Hen. 6. cap. 2) taking knowledge, that There were not at that day within the Shire above xl. persons, which had lands to the yearly value of xx. pounds, without the Tenure of Gavelkynde; and the greater part of this County, or well nigh all, was then within this Tenure.

To proceed, ascribing this property of partition in Gavelkynd-land to the custome of the Countrey, what shall be said then to the partible land (more or lesse) abroad in other Counties [...] is such Gavelkynd-land, and [Page] so to be called, or not? or is it from Gavelkynd that such partition there obteins? I conceive not. For first, our Kentish Gavelkynd Custome, considered collectively, with respect to all its branches, is not to be restrained to this one particular property, but (as before is intimated) consists of many other as singular properties besides, and which may as well challenge a share and right in the Customes name, as may that of Partition, such as is Dower of the Moyety, not to forfeit lands for Felony, and the like; and though in point of Partition it may be like ours in Kent, yet in other properties incident to our Gavelkynd, it might, and no doubt but doth differ from it. Besides, that such partible land elswhere should be called Gavelkynd, will not stand with out premised grounds, excluding▪ Prescription in Gavelkynd land, whereas in such places abroad, though haply not in whole Counties, yet in particular Manours, I conceive it's necessary, even in their Gavellonds, whereof I find mention made in several manours out of Kent, as some in Kent, to shew, quod terra illa à toto tempore, &c. partibilis fuit & partita, the accustomable actual partition of it being there as necessary to be pleaded and proved, as its capability of such a property. Add hereunto, that if all partible land were Gavelkynd (rendred such by partition alone) then were Fol. 374 [...] Bractons, Sicut de Gavelkynd vel alibi ubi terra est partibilis ratione terrae, an improper expression. We are told that this Custome of Gavelkynd partition takes place, (hath done at least) in other countries, or counties besides Kent, and Littleton instanceth in North-Wales. But what custome, I pray? a custome indeed, like to that in the Scottish Skenaei Annot. in Reg. Majest. lib. 2. cap. 21, & 27. Socage land, of [Page] partition; that's true, and testimonies of it are obvious, such as, besides that of Littleton, Statutum Walliae, the Welch History, and some Acts of See 21. Edw. 1. 34. Hen. 8 26. & Girald. Cambrens. Itinerar. Camb. lib. 1. cap. 7. By the way, how do our Britains claim descent from the Trojans? sith with them the eldest son, by prerogative of primogeniture, monopolized the whole inheritance. Whereof see Mr. Seld. Jan. Angl. lib 1. pag. 24. Vit. Basinstoch. Hist. lib. 3. pag. 207. Parliament. But still, I say, no Gavelkynd-custome, taken in its true, plenary and compleat acception, comprising all the properties of it obvious in the Custumal. As then for other Countrey-mens communicating with us of Kent in the Tenure, I conceive it first came up, by way of imitation of our example, in Ireland especially, and amongst the Welch-men, in whose Vocabulary or Dictionary the word is sought in vain, as it is also in that old Statute which concerns them, (Statutum Walliae.) where though mention may be found of a custome there obteining of partition of their lands, like to that of our Kentish Gavelkynd, yet without any one word of Gavelkynd. And if perhaps it may be found in their deeds, charters, or other records, yet (as one Rover. Illustrat. Hist. Monast. S. Jo. Reom [...]en. p 6. 18. num. 168. saith in a case not much unlike conditioned to this of ours, whose words with very little variation I shall therefore take up here:) Suspicari licet hanc vo [...]em pluribus illorum chartis actisque publicis, n [...]n tam illorum quàm pragmaticorum usu ac instituto invectam. i. e. 'tis to be suspected that it had its imposition, and was first transmitted hither by our Lawyers, who borrowed the term to make use of it for illustration sake, like as of late (I am perswaded) the Parliament did in that Stat. 34. Hen. 8 cap. 26. where the term of Gavelkynd haply is but borrowed, to help describe and illustrate that partible quality there mentioned of the lands in Wales, which I am the more induced to conceive, because in a former Statute concerning Wales, namely that of the 27th of the same King, cap. 26. making mention of [Page] this partition, Gavelkynd is not at all remembred. In imitation then (as I conceive) of the Kentish-men, the generality of whose partible land of long time hath notoriously been known by that title, and whose lands alone of all the Counties of England at this day be of the nature of Gavelkynd of common Coke, Instit part 1. fol. 140. [...] ▪ right, this name or term of Gavelkynd in lands elswhere of like condition in matter of descent, hath been taken up and is reteined.

By that which hath been said, I may be thought toObjection. incline to their opinion, who hold that Socage and Gavelkynd are Synonyma, terms identical, and of one and the same signification here in Kent, and that consequently what land here is of Gavelkynd-nature, is of Socage-tenure; as on the other side, what land is of Socage-tenure is of Gavelkynd-nature. I answer, No:Solution. for I require in this case, I mean to make Socage land here in Kent ipso facto partible, after the custome of Gavelkynd, that it be granted out and holden in Gavelkynd As in the Appendix, Scriptu. 4, 6, 7, 8, 9. expressely, or in terms equivalent, as I said before, yet with that distinction oftimes wherewith I there qualified it. Notwithstanding, I am not of their mind, who distinguishing between free and base Socage in Kent, make the natures of their descents divers; the free Socage (say they) descending to the eldest alone, the base falling in division between him and all his brethren. Thus Peramb. pag. 593. Mr. Lambard in the person of others; to help justifie whose distinction, with the inference upon it, he there exhibits an Inquisition taken after the death of one Walter Culpepper, making mention of divers parcels of land and annual rents holden by the deceased at his death, some in liberum[Page]feodum, others in Gavelkynd; the former of which, by the verdict of the Jury, was to go to the deceaseds eldest son In which respect Free Socage is not likely to be here intended, since Glanvill never mentions Free Socage, but under the notion of partible land, as l. 7. c. 1. and l. 13. c. 11. alone; the latter, in common amongst him and the rest of his brethren. Thus the Inquisition, which (as Mr. Lambard there follows it) cleerly distinguisheth free Socage from the Gavelkynd, interpreting, it seems, liberum feodum there by Free Socage, and it may be rightly; however I crave leave of dissent, and (as it is but fit) shall give my reasons: For my part, I never found Free Socage any where expressed by that term, or in Latine rendred Liberum feodum, nor perhaps to those of more diligence, and more conversant with our Law-records than my self, hath it ever occurred under that notion. Nor have I met with any Free Socage, as this here, not subject to the rendring of some kind of service, either in denari [...]s, or otherwise. By Liberum feodum, I understand sometimeLiberum feodum. Feodum militare, which is often in old Records called Liberum feodum. In a very ancient In Archiv. Archiep. Cant. Rental of Southmalling manour in Sussex, we have this title: Liberi feodi, and under it: Godefridus Walensis tenet 111 feodos milit. in tenemento de Malling, & quartam partem unius feodi apud Terring per liberum servitium armorum suorum. Willmus de Bransa tenuit apud Adburton unum feodum militis, per liberum servitium armorum suorum. And so some others. Apposite here is that of Lib. 5. fol. 329. [...]. Bracton: Notandum (saith he) quod in servitio militari non dicitur per liberum servitium, & ideo quiaconstat, quod feodum tale liberum est, &c. Sometime also by Liberum feodum, I understand (what I conceive it doth principally denote unto us) Frank Fee, that is, by the Feudists definition, such pr [...] qu [...][Page]nullum omnin [...] servitium Vulteius de Feudis, lib. 1. cap. [...]. pag. 353. praestatur, and therefore is of them reckoned inter Feudastra, or Feuda impropria. And such as this seemeth to be meant by Liberum fe [...] dum in that Inquisition, because it is there in terminis expressed to be holden (just after the manner of Frank Fee, by the precedent definition of it) absque aliquo servitio inde faciendo. And if Frank Fee, then in probability not Socage: for as all the land in the Realm (say our Books) is either Ancient Demesne, or Frank Fee, so none (say they) is to be accounted Ancient Demesne, but such as is holden in Cowell Interpreter, verb. Ancient Demesne, from Fitzherbert. Socage. Frank Fee then being opposed to Ancient Demesne, which is Socage, cannot it self be Socage. Nor will Bractons distinction of Socage into liberum and villanum, applied to that difference in Mr. Lambard, of free and base Socage, by which the one should consist of money, and the other of base services, be warranted (as himself there observes) from the ensuing Inquisition, some lands being therein denoted to be of Gavelkynd-nature, which neverthelesse do yeild none other but money alone, and none there of that nature charged with works, besides that of Suit of Court, improperly called Works, as not coming under the notion either of Manuopera, or Carropera, to which double head all works of this kind are wont to be referred.

Hence let none perswade themselves, that Gavelkynd-land was not, or by its nature is not liable to Works: for albeit that 66. of King Ina's Laws in the Archaion, seemeth to counter-distinguish Gaf [...]l, and W [...]rk; and though moreover Gafolland and Werkland Gasolland. Werkland. occurr in some manours out of Kent, as of a distinct and different nature, (yet both servile, and opposed to [Page] what there is called terra libera, denoting, I suppose, Free Socage) yet most certain it is, that both Gablum and Opera do often meet, and are found in Gavelkynd-land. Witnesse the old Custumal of Monkton manour in Thanet, belonging to the Church of Canterbury, mentioning the particulars of what servile works the Tenants there stood charged with for the 18 Swolings (so many plough-lands, I take —terram trium aratrorum, quam Cantiani Anglicè dicunt thrée Swolinges, &c. as in the Charter of K. Offa, in the Antiquities of Canterbury, p. 211. it) holden of the Monks in Gavelkynd. Witnesse also this passage in King Johns Charter made to Hubert the Archbishop, for the changing Gavelkynd-land into Knights-Fee, at large exemplified by Mr. Lambard, Peramb. pag. 531. Xenia, Averagia, & alia opera quae fiebant de terris iisdem convertantur in redditum denariorum aequivalentur. Witnesse in the third and last place (not to multiply instances in a case so cleer) an Inquisition found after the death of Isabella de monte alto, widow, sometime of Orpington, recorded in a Lieger of that Cathedral, whereof expect a copy in the Appendix, Scriptura 10. 'Tis true indeed at this day, and time out of mind (haply from Richard the seconds See Spelmans Gl [...]ssary, verbo Lazzi▪ time) such servile works (properly called Villein-services) have been, as they still are, intermitted, or rather quite ceased; insomuch as all our Gavelkynd-land, in point of service, now differs nothing from Free Socage, as it stands described and defined of Bracton; being such ubi fit servitium in denariis, (to use his own words) all the Tenants burthen, his whole service, being onely servitium crumenae, pecuniary, such as payment of money for rent, suit of Court, and such like; nay, in many grants of land in Gavelkynd that I have seen, I find no tie at all upon the Tenant, no covenant or contract between his [Page] Lord and him, to require of him any such base services, there being ut communiter, and regularly, a reservation onely of rent in money, suit to his Court, or the like: yet I must tell you (as a reason hereof, in my judgement) that, though Gavelkynd, in the genuine sence, sound land letten for gable, cens, or rent, consisting chiefly in denariis, (whence in an old In Archiv. Eccles. Cant. Custumal of Eastry manour in Kent, I read: In eodem manerio mutati sunt octo Cotarii pro Gavelkende. Medlef [...]rm tenet unum messuagium, tres acras, quae solent esse Cotar. modo reddit xl. d. de gablo, and so divers more, which haply will be better understood, if I add what occurrs in an old Accompt-roll of the Archbishops manours for the year 1230. in Charing Bailives receipt: Et de xiij. s. iiij. d. de fine Cotariorum, ut Coteriae suae ponerentur ad redditum:) yet commonly upon such grants in Gavelkynd, the Tenant pare [...]d with such a sum of money to his Lord, in gersumam, i. e. in consideration ofGersuma. that grant, and by way of Fine, as may seem equivalent to the base services otherwise imposeable and to have been charged upon that land, and upon the Tenant in respect thereof; or if not, probably, (as in Gavelkynd-land, by vertue of King Johns fore-mentioned Charter, turned into Knights-fee) he had his rent inhanced and augmented to an equivalent value of his services to be redeemed; the cause in chief of the excuse of Gavelkynd-men from base services of latter times, and at this day, being (I conceive) no other than the Tenants buying them out, and consequently the change of the same (as Littleton hath it of Socage in general) into money, by the mutual consent of Lord and Tenant, whereof expect some examples to be presented [Page] in the Appendix, Scriptur. 11, and 12. In the mean time have here an instance or two taken from some old Accompt-rolls of the Archbishops manours of this and that summe paid & received for enfranchising the land from customes and services, and changing it into Knights-fee, whereof in the last-remembred Accomptroll, and in the receipt of Ce [...]ring (now called Charing) manour there: Et de ij. s. ix. d. ob. de incremento redditus Thomae de Bernfeuld de termino Sancti Johannis, ut terra sua de caetero sit libera de consuetudinibus per feodum militis. Et de xiiij. d. quad. de incremento redditus Thomae de Bending, ut terra sua sit libera per feodum militis, de termino S. Johannis. And so some others there, as also in Maidstone and other Archiepiscopal manours, and such may well be reckoned among lands of that sort, which in a copy of the book of Aid, cited by Peramb. pag. 533. Mr Lambard, are noted to be holden in Knightsservice, per novam licentiam Archiepiscopi. But to return to our Gavelkynd, which if not extensive to Free Socage, they may seem to stand in need at this day of some other character (to keep them unconfounded) than Bracton in the definition and description of the latter doth propose, in regard the service of both equally consisteth in money.

To recapitulate now what hath been delivered concerning partition in Kentish Gavelkynd-land: It is (as hath been shewed) neither from the name, nor from the nature of the land alone, nor from prescription, nor yet from any particular custome, that this property there proceedeth; but partly from the nature of the land, and partly from custome, not (I say) a particular one, but a general custome extended throughout the [Page] whole County in censual land, or land letten for Cens, or (what is all one with it) Gavel, or Gafol, to say, holden in F [...]ef (or Inheritance) Roturier, as called in Normandy, and other parts of France; the Antiquity whereof, and how beginning in Kent, and why more general there than elswhere, shall be the argument of our next Discourse.

PROPOSITION III.

The Antiquity of Gavelkynd-custome, (in point especially of Partition) and why more general in Kent than elswhere.

MAster Lambard Peramb. pag. 545. inclines in his opinion to conceive this custome brought hither out of Normandy by Odo (Earl of Kent, and bastard brother to King William the Conquerour) and that we received it thence by his delivery; an opinion inconsistent with the Custumal it self of his own Edition, the very close whereof (if it may be credited) layeth challenge to the custome before the Conquest. For my part I conceive it may carry an Antiquity far greater than the time of the Norman conquest, being probably as old (in the name I mean, I will not say in all the properties of it, though happily I may in point of Partition) as Gafolland it self, from which (if considered in the term) it as little differs in sence as in syllables; to what our Saxon Ancestours called Gafolland, their Successours, and we [Page] at this day (for a fuller expression of the nature of it) having added one syllable, and so calling it Gavelkyndland. Yet I would not be thought of his Spot, in the lives of the Abbats of S. Augustine at Canterbury, cited by Mr. Lambard, both in his Glossary before his A [...] chaion, verb. Terra ex scripto, and in his Perambul. pag. 28. opinion, who would bear the world in hand, that the Commons of Kent continue their priviledges by means of a composition entred with the Conquerour at Swanscomb. No, under favour, we ow them not to that, or any other such like specious stratagem, nor are beholding either to Stigand the Archbishop, or Egelsine the Abbats policie to contrive, or to their and our Countrey-mens valour to compasse, their continuance for us in such a way. I am not so prodigal of my historical faith, as to cast or squander it away upon commentitious fables: for I account this no better, however swallowed of the vulgar, whom I dare not to encounter in any dispute about it, as despairing of successe, though using never so effectual convincing arguments to dis-ingage them in the belief of it; and therefore appealing from them, I shall apply my self to the more literate and judicious, by intendment not so tenacious of a specious tradition, but that they can with patience both hear it questioned, and, if occasion be, refuted; not unwilling to desert it, if, upon trial, it may prove unsound and spurious, and accounting it as thank-worthy to discover an old errour, as to deliver a new truth, especiallyTo discover an old errour as acceptable, as to deliver a new truth. since truth is not more often, nor more easily, lost by too much altercation, than errour is contracted and continued by too little. I will not undertake, nor do I mean to make it my task here, to shew how it came to passe, that Gavelkynd is in a manner proper, and Villenage improper onely to Kent, no other County partaking with it, either in that degree of commonnesse [Page] and universality wherewith Kent is overspread of the former, or in the immunity it enjoyes from the latter; the finding out the true cause whereof hath not escap'd my diligence, although my skill I confesse it hath. But, be that as it will, and albeit I cannot in the affirmative shew what was, yet in the negative, that this was not the means whereto we ow the continuance of our Gavelkynd-customes at and since the Conquest, shall be my next assay to prove, and that by shewing what more than suspition of errour this Monkish relation (for such it is) deserveth to fall under with men of unbiassed and dis-ingaged judgements. But first, will it please you to hear the story it self, as it is already Englished by the illustrious Authour of the Illustrations upon the Poly-olbion, pag. 302. who there suspects the same as not of clear credit.

When the Norman Conquerour had the day, he took his journey towards Dover Castle, that he might with the same subdue Kent also; wherefore Stigand Archbishop, and Egelsin Abbat, as the chief of that Shire, observing that now whereas heretofore no Villeins had been in England, they should be now all in bondage to the Normans, they assembled all the County, and shewed the imminent dangers, the insolence of the Normans, and the hard condition of Villenage: They resolving all rather to die, than lose their freedome, purpose to encounter with the Duke for their Countries liberties. Their Captains are the Arch-Bishop and the Abbat. Upon an appointed day they meet all at Swanescomb, and harbouring themselves in the woods, with Green boughs, as Mr. Lambard hath it: a likely matter, at that time of the year, being about November. boughs in every mans hand, they incompasse his way. The next day the Duke coming by Swanescomb, seemed to see with amazement, as it were a wood approaching[Page]towards him, the Kentish men at the sound of a trumpet take themselves to arms, when presently the Archbishop and Abbat were sent to the Duke, and saluted him with these words: Behold, Sir Duke, the Kentish men come to meet you, willing to receive you as their Leige Lord, upon that condition, that they may for ever enjoy their ancient Liberties and Laws used among their Ancestours, otherwise presently offering war; being ready rather to die, than undergo a yoke of bondage, and lose their ancient Laws. The Norman in this narrow pinch, not so willingly as wisely, granted the desire: and Hostages given on both sides, the Kentish men direct the Normans to Rochester, and deliver them the County, and the Castle of Dover.

Thus Spot, St. Austins Chronicler at Canterbury, living under Edw. 1. he, I say, and onely he, and such others as of latter times write after his copy: for before him, and in that Interim of more than 200 years, between the Conquest and the time he wrote, no published Story, no Chronicle, no Record of any kind, Kentish or other, may be found to warrant the See Cambdens Britann. in Kent. relation; a matter the whilest so remarkable, as, if true, not likely to escape all our Historians pens that were before him, those especially about the Conquest. Amongst which Hist. of Croyland Abbey. Ingulphus silence is the more remarkable, since he is so particular and punctual in relating and recounting the Conquerours oppugners, and their proceedings. When afterwards Rochester Castle, kept by Odo the Conquerours brother, against William Rufus in the year 1088, was by him besieged (a thing of as small moment at least as this) why, all the Stories with one consent were full of it, particularly [Page] Malmesbury and Paris (amongst other occurrences) tell of a much declined nick-name, wherewith those were threatned that should refuse to come to the Kings assistance in that action, which the former hath Nidering, the latter, Nithing, quod Latinè nequam sonat, say both, and rightly, if it come, as I conceive it may, from the Saxon [...], i. e. nequitia, malitia, as it is in several places found in their Psal. 54. 17 Psal 51. 1. in marg. Psal. 72. 8. in marg. Psalter; a nickname this, of such infamy, as fastened upon the most detestable and barbarous Villeins, such as were guilty of despoiling and rifling the dead, which the 83. of Hen. 1. Laws calleth Weilreif, a term (identical, I take it, with Walaraupa in the Legis Boîor. tit. 18. cap. 3. parag. 1.) which Textus Roffensis thus illustrates in a place: [...]. i. e. (according to the Latine version in Jornalensis, where this Law occurrs, as the 2 [...]th of those of King Ethelred, at Vaneting:) Wealreaf. 1. mortuum refare est opus nithingi: si quis hoc negare velit, faciat cum xlviij. Thaynis plenè nobilibus. This (of [...]) is that surely which the old Glossary (new set forth) at the end of Hen. 1. afore-said Laws, harps upon, in the word Refare, and is there glossed by opus nithingi, as also in the word Wealreaf. But to return to our Story, that I mean of the siege laid to Rochester-castle, which though of as small, if not lesse, concernment than the other here in question, could find many Chroniclers to record it, and must this needs escape them all, till Spot had got it by the end? Besides, observe with me (what Mr. Selden there, and Mr. Lambard before him both note) his commixture of Testis falsus in uno, redditur suspectus in omnib. Farinac. de tes [...]b. q. 67. n. 3. a falsity about Villenage, [Page] affirming it was not in England before that time, which is apparently false by choice of testimonies, both from our Laws and other Saxon monuments, so obvious as I will spare to repeat them, setting that aside until I have dispatched the main matter of the Story, the composition, I mean, between the Conquerour and the men of Kent, with the occasion of it, which as it wants the warrant of confirmation by other elder Historians, not onely silent of it, but agreeing in asserting an universal conquest, so in [...]lat contradiction of it, we find cleer testimony in Florentius Wigorniensis and Roger Hoveden, of our Counties fellow-suffering withKent conquered by the Normans. her neer and more remote neighbours of Sussex, Surrey, Hampshire, Middlesex, &c. in the devastations, depredations, and other miseries of a countrey invaded, subdued, and (at least in some parts) harried by the Norman Conquerour, immediately upon that signal victory of his over the English, at the place where afterwards he founded that Abbey, from the Battel there fought, called Battel-Abbey in Sussex. You shall have my Authours own words: Interea (say they, Flor. Wigorn. an. 1066. Rog. Hoveden, fol. 258. [...]. having but newly told the Story of that fatal battel:) Comes Gulielmus Suthsaxoniam, Cantiam, Suthamtunensem provinciam, Suthregiam, Middelsaxoniam, Herefordensem provinciam devastabat, & villas cr [...]mare, hominesque interficere non cessabat, donec ad villam quae Beorcham nominatur, veniret: &c. To this let me add a passage from the Story of the same Spot, where, after mention made of an Annuity, or Rentcharge given to his Abbey, by one Sulburga, the Lady of Brabourne, about the year 861, he subjoyns this: Istum redditum (saith he) & jugum terrae apud Horton, [Page]& terram de Hengestehell juxta Wivelesburgum, Hugo de Monford abstulit, cui & Episcopo Baiocensi Willi [...]lmus Bastardus fere omnes terras Cantiae contulit, contradicentibus monachis, sed minimè praevalentibus. Now if the Conquerour seized almost all the Kentish lands, and gave them to his brother, the Bishop See Order▪ Vital. ann. 1070. of Bayeux, and Hugh Monfort, (as you may find further verified by Domesday book, with cleer evidence of the like distribution generally throughout the Kingdome, whence that of Hist. Croyl. fol. 512. b. See also Eadm. Hist. pag. 6. Ʋsus ergo, &c. Inguiphus: Deinceps ergo comitatus & baronias, episcopatus & praelatias totius terrae suis Normannis Rex distribuit, & vix aliquem Anglicum ad honoris statum, vel alicujus dominii principatum, ascendere permisit:) how is it likely that Kent should escape or speed so well, as by that specious Story of the Swanescomb encounter and accord, the Monk would bear the world in hand? Truth is, by the way, the Harpies of those rapacious times (the Conquerours kinsmen and countrey-men) laid about them notably for the fattest morsels they could find in most places, out of Church-lands See the Epistle in the Appendix, Scriptur. 21. especially: (tempore autem praedicto Normannorum, quo Dux Willmus cum suis armatis copiis Angliam intravit, vastavit, penitùs & subegit, omnia in praedam data sunt, &c. quoth Gervase the Monk of Canterbury) and what with force on the one hand; and flattery on the other, obteined so many, as at length the pressure gave occasion to the Religious of those times for a general complaint thereof unto the Conquerour, with petition for redresse, and amongst the rest, the Monks both of St. Austins, and of the Cathedral at Canterbury, particularly seem to joyn in the Remonstrance; whereupon (for the former) [Page] the Conquerour directs a writ, brief, or charter to Lanfrank the Archbishop, &c. for redresse of what wrong in that kind had betided the place, of such tenor as you shall find in the Appendix, Scriptura 13. And for the Cathedral, besides a particular charter granted by the Conquerour to the Monks there, Ut praedicti monachi potestatem habeant terras suas dandi & tollendi ubicunque eis melius visum fuerit, quicunque tas teneat: &c. they shew a general writ of his to Archbishop Lanfrank and others, for the restitution and reseizing of whatsoever had been taken from the Bishopricks and Abbeys all the Kingdome over, whereof it seems they had particular occasion to make use, both by their care to record it, (as an evidence much concerning them) in their Leigers, as also by the record they likewise there keep of the plea between their said Archbishop, and the foresaid Odo, at Pinenden, whereof, from the Records of the Church of Rochester, which it equally concerned, Mr. Selden in his Notes upon Eadmerus, pag. 19. hath given us a copy; a pregnant evidence for our present purpose in many respects. This last named Charter, because it may be the first that ere you saw of this nature in print, and may conduce to a right judgement of Spots Story, I shall advisedly recite at large in the Appendix, where you shall find it, Scriptura 14. But (no longer to digresse) be further advertised (good Reader) that whereas by Spots relation, the Conquerour was opposed by the Kentish men, in his march through West Kent towards Dover, and after composition with them at Swanescomb, was by them conducted to Rochester, and put in possession of the County, together with [Page] the castle of Dover; the very truth is, by the more credible relation of Gesta Gul [...]l. Duc [...], &c. pag. 204. Gulielmus Pictavensis (a writer of the same time, and the Conquerours own Chaplain, followed by Hist. Eccles. lib. 3 pag. 502. Ordericus Vital [...]s) the Conquerour, after his victory neer Hastings, made not first to London, and then to Kent, but after fe [...]ling his affairs about Hastings, presently took his journey towards Dover Herewith concurreth Malmesbury, fol. 116. b. where he saith, Qui cum & b [...]lli Hastingensis victori [...], & Cast [...]lli Do [...]r [...]rsis deditione terrorem sui nominis spars [...]sset, (Conquaestor) Londonium peti [...], &c. by the way of Romney, where having avenged himself of the savage kind of Inhabitants, for the slaughter of certain of his men, by some mistake landing at that place, (of Pictavensis called Romanaerium for Romaneium, as of Ordericus rightly named) he thence advanced on to Dover; whither, though a numberlesse multitude of people had betaken themselves, as to a place, by reason of the castle, inexpugnable, yet dismayed with the Conquerours approach, the place with all readinesse submitted to him, who, after eight dayes fortification of it, marching from thence, at a place not far from Dover, the Kentish men of their own accord came in to him, sware him [...]ealty, and gave hostages for performance. Marching then onward, and understanding where Stigand the Archbishop, with the Earls Edwin and Morcar, and other English Nobles (who conspired to set up Edgar Etheling, King) were assembled, he made towards them with a strong power, and sate down not far from London; whence certain companies issuing out against him, he, with 500 of his Horsmen soon repelled them, forcing their retreat back into the citie, not without the slaughter of divers by the way. This action was followed with the firing of all buildings whatsoever behither the river (of Thames.) Passing over which, [Page] the Conquerour removed to Wallingford, whither Archbishop Stigand, and other of the English Nobility followed him, and deserting young Edgar, made their peace with the Conquerour, receiving him as their Sovereigne: whose example the Londoners soon following, rendred themselves also to the Conquerour, and (as the Kentish men had done) delivered him hostages; such, both for number and quality, as he required. Thus Gulielmus Pictavensis followed (as I said) by Ordericus Vitalis, a writer of, as it were, the same time. By which relation it is evident, that the Conquerour intending for Kent, did not set out (as Spot insinuates) from London or those parts, but on the contrary ere he went to London, made himself sure of Kent, by taking Dover castle, (the Lock and Key, as one Matth. Paris, Hist. in Hen. 3. cals it, of all the Kingdome) and from thence, after the Kentish mens voluntary submission to him, marcheth towards London. Now, from the silent passing over most of these particulars in other writers, of and about this Authours time, all save onely Ordericus Vitalis, let none call the truth of them in question, since their undertakings were for compiling a more general Story, than that of the Conquerour alone, who therefore were more succinct and summary in their relations, advisedly (by their own confession) pretermitting many particular passages. Ingulphus, after a summary relation of the Conquerours acts at his first coming in, excuseth his brevity thus: Summatim namque ac carptim victoriosissimi Regis gesta narro, quia secum sequi annuatim, passimque scribere gressus suos non sufficio. Whereas, on the contrary, this Authour (Pictavensis) undertaking onely the acts and life of the [Page] Conquerour, (whose Chaplain he was) sat himself to exspatiate in all memorable occurrences. Besides, (which I cannot but observe, as tending much to the credit both of our Authour and his relation) although Gemeticensis (a writer of the same time) balk the most of these passages; yet excusing himself also for his studied brevity, he refers the Reader to our Authour, for fuller intelligence, making mention of his Story (like as Ordericus Vitalis also doth) with great applause, in these words: Lib 7. [...]4 [...]. His per anticipationem breviter intimatis, ad finem gestorum Willelmi Regis Anglorum, & Ducis Normannorum, de quibus fastidio Lectorum compendiosè consulentes, quaedam pers [...]rinximus, veniamus. Si quis verò plenius illa nosse desiderat, librum Willelmi Pictavensis, Luxoviorum Archidiaconi, eadem gesta sicut copiosè, ita eloquenti sermone affatim continentem, legat. Of whom Ordericus Vitalis Hist. Eccles. lib. 3. propè sin. further thus: Ipse siquidem praedicti Regis Capellanus longo tempore extitit, & ea quae oculis suis viderit, & quibus interfuerit, longo relatu vel copioso indubitanter enucleare studuit.

Thus far then in way of refutation of Spots Story in grosse, or in the general; a meer Monkish sigment, I conceive, politikely devised, and with a design to bring a perpetual obligation on the Kentish men to his own Abbey, as owing (forsooth) the continuance of their ancient liberties partly to a quondam Abbot of the place: even much such another, as that of the Devils attempt upon S. Pancras chappel to overturn it (whereof in the Antiquities of Canterbury, pag. 61) smelling too much of the Legend, and invented doubtlesse for the greater glory of the Abbey.

[Page]Now descend we to the result of the Story, and the inference upon that meeting, made by Spot and Lamb. Peramb pag. 30. Author Antiquit. Britan. [...]n vitâ Stiga [...]d [...] Archiep. his followers, which in short is, that hence, or hereupon Kent received her pristine priviledges, instancing (some of them) in Gavelkynd for one, and particularly that hence, as formerly Kent (participating in common with the whole Kingdome in that point) had no Villeins, so by that means from henceforth (by a singular priviledge above other counties) it never had any. Indeed, (which I note as adminicular to this assertion) among the articles by which the Auditours of our Cathedral were to take accompts of the Bailives of that Churches manours out of Kent, recorded in an old Lieger there, these are some: 1. De Cens [...]riis Nativorum quod possint exire tenuram Domini ad laborandum & operandum extra, & statim post operaredire. 2. De finibus Nativor. profiliabus suis maritandis infra tenuram Domini. 3. De finibus Nativor. postmortem patrum suorum, quod possint habere terras quas p [...]tres habuerunt, tenendas ad voluntatem Domini, secundùm consuetudinem maneri [...] rum: Whereas in the like articles for the manours in Kent, not one of these occurr; but, as if improper for the manours of that county, all are quite omitted, to the manifest confirmation of Spots acquitting Kent of Villeins and Villenage. True, I confesse, nor can it be denied as to those dayes, the time I mean when those Articles were set on foot, which, judging of their age by their character, seemeth to be about Edw. 2. dayes: but that there were none at, or after the Conquest (the point in issue) is under favour an assertion little truer, if not fully as false, as that other of his concerning the composition with the Conquerour. For proof whereof, [Page] to say nothing of Hubert (the Archbishop of CanterburyVillani in Kent. in King Johns time) his acquitting both his own and the Monks possessions, amongst other burthens, from that of Godwin, C [...]tal▪ of [...]. in the life of Hubert. Villenage, because possibly this priviledge might concern their possessions elswhere, and not in Kent: I appeal to a writ of King Edw. 2. anno regni sui septimo, to the Assesso [...]s of a Tenth and Fifteenth in the county of Kent, in the behalf of the Abbat of Spots own Abbey (St. Austins) and his Villeins, whereof you may find a copy in the Appendix here, Scriptur. 15. followed with another of a very rare deed or charter of about H. 3. time, taken from an ancient Manuscript Chartulary of the very same Abbey, now remaining with Sir Thomas Cotton, which I must confesse to ow to the cour [...]es [...]e of my late learned friend Sir Simonds D'ewes, cleerly shewing Villenage to have obteined and taken place in Kent, and even in our Gavelkynd; a Tenant to that Abbey of certain land in Gavelkynd doing homage to the Abbat there for the same, expressely as for Villenage, and covenanting to perform as much service to his Lord, as to the same Villenage apperteined, as by the deed (which whether I should more value for it self, or for the hands sake that reach'd it to me, is with me some question) more fully may appear, Scriptur. 16. Add hereunto, that the Laws of Hen. 1. cap. 76. make mention of Villani in Kent: Differentia tamen Weregildi multa est in Cantia Villanorum & Baronum. So that chapter is concluded. To ascend yet higher, in Domesday-book, and in the Kentish Survey there, Villani frequently occurr, by which, if, after the common opinion of modern and some elder Lawyers, Bond-men (such as of [Page] latter times and at this day we call Villeins) are not to be understood, but rather (after the Cap. 2. Sect. 28. pag. 169. Mirroir) Cultivers de fief demorants en villages uplande; car de vill est dit villein, &c. or, in Fitzherberts expression: Base tenant, qui fesoit villein service, mes ne fuit pas villein. i▪ e. A base Tenant, that doth Villein service, but neverthelesse is no Villein; then, to put the matter out of all [...]oubt, know that besides Villani, you may withall find, and that in divers several manours too in that Kentish Survey (particularly in the Bishop and Church of Rochesters manours of Southfleet, Stone, Falkham, Woldham, Trottesclyve, Snodeland, Halling, Frend [...] bery, &c.) expresse mention of Servi, which of all [...]ervi in Kent. hands is confessed to denote men of servile condition, bond-men, or bond-slaves, Villeins. And take along with you this note by the way, that the pretended composition in Spot, by which he will have Kent for the future conserved in her immunity from Villenage, did for many years antedate the time of this Survey; that, pretending to the Conquerours first coming in▪ this, not beginning, at the soonest, untill about fourteen years after. I might follow this with some pregnant passages to this purpose, such namely as that in the old In Armar. Eccles. Cant. Custumal of Ickham manour in East Kent: Et isti Cotarii nusquam capient auram nisi apud Ickham vel Brembling: such (secondly) as that in a like ancient In Archiv. Archiep. Cant. Custumal of Tenham manour: Quaelibet Coteria tenet unum messuagium, tres acras, & debet metere 8 acras, &c. Et facie [...]t quicquit serviens de manerio praeceperit: such (thirdly and chiefly) as that in the Penes Registrum Consistorii Cantuar. will of one Sir William Septvans Knight, sometime owner of Milton neer Canterbury, dated anno 1407: Item [Page]lego Adam Standerd, Thomae Hamonde, Roberto Standerde, Roberto Chirche, & Johanni Richesforde servis & nativis meis, pro bon [...] servitio mihi ab eisdem facto, Nativi. plenam libertatem, & volo quod quilibet eorundem habeat cartam manumissionis sigillo meo signatam, in testimonium huj [...]smodi meae ultimae voluntatis. I might add, that, what in confirmation of the probability of Spots Story is added, viz. that hereupon the King so stomached the Archbishop, as to put him by his place and office in his Coronation, hath no support or warrant from any Story of those times, all which, with Gervasius Dorobornensis, a Monk of his own Church, agree in the yeilding and rendring other reasons hereof, chiefly his being interdicted his Episcopal Function, for invading the See of Canterbury, Robert the Archbishop being yet alive, and undeprived, and holding it and Winchester both together: which is the more probable, because for the same reason four years before, Wolstane the elect of Worcester refused to be consecrated Bishop by him, and was sacred by Aldred, the Archbishop of York, as the Monks of Worcester and Westminster have it in the year 1062. But to keep to our Villenage, which apparently is traceable in Kent sithence the Norman Conquest. Nor indeed seemeth it to have been otherwise here (in this particular o [...] Bond-men, or Villeins) in the times before the Conquest; witnesse (besides the mention of such in the Ms. in Text. Roffens. Saxon Laws of Ethelbert, Lothaire, and Eadric, all Kentish Kings) an old Saxon tripartite deed or charter purporting a contract of marriage, which, because it may serve to exemplifie the manner of espousals in those elder times, and is a great illustration to a model [Page] or constitution of that nature exhibited of late by Sir Hen. Spelman, Concil. Tom▪ 1. pag. 425. and Mr. Whelock, in his late Edition of the Saxon Laws, pag. 60. I shall tender it to common perusal, from that part of it left and laid up at Christchurch, transcribing it in the Appendix, Scriptur. 17. Before I proceed, having made mention of that constitution, touching the manner and rights of espousals, let me (so fairly occasioned, with excuse for the digression) help to rectifie the edition with some animadversions, which to me it seemeth much to want, in the Saxon especially. First then I conceive, the first word of the second chapter in the Saxon copy, viz. ( [...]) as belonging to the precedent chapter or article, ought to be taken thence, and placed as the very last word of that precedent article, and so we are to read it, [...], .i. according to the Latine copy, & pleg [...]ent (rather▪ [...]ide jubeant) ho [...] amici sui. In the next, or second article, I conceive the two last words there, [...], belong to the next, the third article, which consequently is to begin the [...]e. As imperfect is that article in the end as in the beginning, wanting to perfect it, the whole first line of the next (the fourth) article, viz. [...] he▪ all which, I say, belong to the precedent article, the fourth being to begin at [...], which I conceive not well turned (as in the new Version there) by [...]i quidem eve [...]iat, being rather, under favour, thus to be rendred: si sic conveniat, and th [...]s indeed runs the old version in the precedent page; and so (to passe by some intervening literal mistakes) is that in the close of the sixth article, [...], by satis [...]ationemque[Page]accipiant de celebrandis [...]uptiis. The old version here is: Et excipiat inde plegium qui jus habet in vadio. I once pitched upon this version: Satisdationemque inde a cipiant qui sponsalia ordinaverint, i. e. Paranymp [...]i. But leaving that, to return to our purpose. By what is premised, I conceive we have ground enough to conclude against what Spot singularly delivers touching the Conquerour and Kentish mens meeting, with the manner, product, and result of it; and consequently, what is built upon it, our counties reteining her Gavelkynd-customes and priviledges by means thereof.

But after this pulling down with one hand, to help build up another while with t'other, and not to leave the cause of our enjoyment of those Liberties (that especially of Partition, the more eminent property in Gavelkynd) thus uncertain, let us enquire into the carriage of affairs of this nature about the times of the Conquest, when they say we obteined to preserve and continue this (amongst the rest) by composition with the Conquerour, whilest the rest of the Kingdom was deprived o [...] it▪ I say deprived, because as L. decem in [...]i. de stipul. [...]. m [...]numission [...], de justi [...]. & ju [...]. Privatio praesupponit habitum, so those who are of this opinion take it for granted, that before the Conquest▪ by vertue of a national custome first induced by the Saxons, and by them traduced from the Germans, intended by Ta [...]itus in his Haeredes successoresque sui cuique liberi, &c. and afterwards incorporated into our Laws by LL Ca [...]uti, par. [...]. cap. 68, & 75. King Can [...]us▪ inheritances descended and were partible after the nature and manner of our Gavelkynd, at this day. So of late (amongst others) Sir Hen. Spelman, in his Glossary, ve [...]b. Gav [...]l [...]um▪ Daniel in his History, [...]ol▪ 38. Verstegan in his Antiquities pag. [...]7. [Page] Archbishop Parker in his Antiquitates Britannicae, pag. 108. and Mr. Lambard, in his Glossary, verb. Terra ex scripto, though afterwards in his Perambulation, pag. 545. he is found to crosse himself herein, by saying that this custom was brought hither out of Normandy by Odo the Conquerours brother. Now 'tis true, and not to be denied, that by these Laws of Canutus inheritances were partible; but how? It may be equally, (like our Gavelkynd) but it is not so expressed, nor do the words inforce it. It's ordered there indeed, that a partition of the estate be made, in the one, between or among the wife, children, and next of kin, by the Lord; in the other, by the heirs among themselves; in both, not [...] emne, or [...], i. e. equally, but [...]; in the former more explicitely thus: [...], &c. i. e. (according to the old version in Brampton) unicuique secundùm modum qui ad eum pertinet. Here is now no equal division spoken of, no equalling the younger with the elder brethren, or the like. But the estate is to be shifted [...], i. e. according to right, justly, or if you will (after the old version of the latter Law in Brampton, being the same verbatim with that in Mr. Lambard Archaion, fol. 136. a. elswhere) rectè, every one to have his due, haply after a Geometrical, not Arithmetical proportion. Again, not by equal proportion, in point of goods at least, for each was to partake therof, (as in the Gavelkynd partition Davies Reports, L [...] Trish custome de Gavelkind, fol. 49. in Ireland, each one a part according to their quality, degree, or desert▪) prorata, happily their reasonable part, whence indeed some do fetch and ground a writ we have among us, called Rationabili parte bonorum (concerning which there is a question in our books, whether it lie [Page] by the common Law, or by the custome onely of some See Cowells Interp. verb. Rationabili parte bonorum, & Swinburne of Testam. par. 3. cap. 16, & 18. Countries, and whose footsteps may be traced in venerable Bedes English Saxon Ecclesiastical History, lib. 5. cap. 13.) but of this matter more anon, at the close or foot of this Proposition. Or again, [...], i. e. juxta arbitrium boni viri, as the Civilians in like case use to speak, or pro arbitrio Domini, as it is in the former of those Laws, be [...], i. e. judicio suo▪ whose place▪ by provision of succeeding times, both here and in Scotland, was supplied by the Bracton, fol. 60. b. S [...]ld. Tit. of Hon. cap. 5. sect. 2 [...]. p. 724 Stat. Will. Reg. Scotor. 1. cap. 22, & 30. Ordinary, first joyntly with the deceaseds friends, afterwards without them and alone, as haply more to be confided in, because by common intendment, as more knowing, so more careful to deal uprightly; though it be utterly unknown or uncertain when this trust began by written Law to be committed to the Ordinary; if I may guesse, about what time that provision was made for the like in Cu [...]umar. Normann. cap. 20, 21. Normandy, whereof in Matth. Paris History, anno 1190. pag. 161. edit. ult. Or else (to proceed) [...], according to right, i. e. Custome, or right, as it is ordered and directed or tempered by the usages of several places, for 27. Distinct. Utinam. Quaelibet provinvincia abundat suo sensu. Apposite and pertinent to this purpose is that observation of a late compendious Daniel, in Will. 1. Historian of our own, upon occasion of the Confessours collection and compilement of, as it were, a Codex Legum, (whither we may refer the original of Magna Charta) a Standard-law to be currant over all the Kingdome: Before these Collections (saith he) of the Confessours, there was no universal law of the Kingdome▪ but every several Province held their several Customes, all the Inhabitants from Humber to Scotland used[Page]the Danique Law, Merchenland, the middle part of the Countrey, and the state of the West Saxons had their several Constitutions, as being several Dominions, and though for some few years there seemed to be a reduction of the Heptarchy into a Monarchy, yet held it not so long together (as we may see in the succession of a broken government) as to settle one form of order currant over all, but that every Province, according to their particular Founders, had their Customes apart, and held nothing in common, (besides Religion, and the Constitutions thereof) but with the universality of Meum & tuum, ordered according to the rights of Nations, and that Jus innatum, the common Law of all the world, which we see to be as universal as are the cohabitations and societies of men, and serves the turn to hold them together in all Countries, howsoever they may differ in their forms. So that though we shall admit these with the rest of Cnutes laws to be national, as by their Preface (that, I mean, of the second part, conteining his secular or politike Constitutions) they are apparently no other, ( [...]:) yet I take it these Laws (68. and 75.) conclude not for a national, general, or universal descent of Inheritances, by an equal or Arithmetical division amongst all the children or heirs, nor indeed for more than this, that a partition was to be made of the same, in point of proportion, more or lesse, according to what, pro more patriae vel loci, and (in point of goods) juxta arbitrium Domini, was just and fit, there being no precedent general Law, or Canon here (now extant at least) to regulate, or give directions in case.

[Page]But if not nationally, (for, to give one instance instead of many, Thoroldus, in a Charter of his to Croyland Abbey, recorded by Hist. Croyl. sol. 519. a. Ingulphus, makes mention of his Lord and kinsman, Earl Algar, the eldest son and heir of Leofric, Earl of Leicester, and his Countesse Godiva, Thorolds sister, in the year 1051.) yet I am contented to admit and agree, that provincially, and particularly here in Kent, we had such a Custome both before and at the Conquest: neither am I against their opinion, who affirm the like course and custome currant in those times throughout the Kingdome, as not being desirous to insist much upon this example in Thoroldus charter, or any such like, to the contrary, for the present, though I doubt whether it can concludently be argued from (the grounds and authorities they seem to go upon) those Laws of Canutus. Neverthelesse be it so: for though some will say, the Conquerour found it not here, but either by himself, or his brother Odo, brought it hither out of Normandy, and by the pattern and practice of his own Countrey planted it here, (how can this stand with Spots Story by the way?) yet I am not of their mind. For had it been from thence transplanted hither, probably it would not have been confin'd to Kent, a corner onely of the Kingdome; but have spread it self rather over the whole, by the Conquerours means, whose inclination and endeavours to propagate and implant here the Customes of his own Countrey, are too eminent and notorious to be doubted of. 'Tis nothing probable then, (what some have deemed) that we borrowed this custom from Normandy, or that Odo was wrought upon by any pattern of that Countrey to set it up [Page] amongst us, but rather found it here at his coming. Supposing therefore such an universal custome here in England before and at the Conquest, it will concern us next to make enquiry, how it came to passe, that when all the Realme beside, hath in a manner discontinued it, Kent onely re [...]i [...]s it, in that g [...]i [...]al manner at l [...]a [...], whereby improcesse of time it is become (as the Year-book quoted of Perambul. pag. 538. Mr. Lambard phraseth it) as it were a common Law there▪ The answer must be but conjectural, since Records herein fail us of all light, as well as Histories, all but Spots, who for the reasons pre-alleaged shall be none of my Resolver. Will you have the common answer? Why then they say the Conquerour abrogated this custome in all parts of the Kingdome save onely in Kent, which obt [...]ined to continue it by composition with him when they met at Swanescomb. But having formerly said (I hope) enough in answer hereunto, I will seek further, and try if some other more probable cause may not be found for it.

The Conquerour then (I will suppose) consented to the continuance of this custome generally throughout the Kingdome, in all, I mean, but Knight-service land, the descent whereof to the eldest son alone, (partly for his own, and the Realms better Coke upon Li [...]tleton, fol. 14. a. defence and strengthening, and partly for the upholding and maintenance of Hodie nobil [...]tas s [...]indè allodiales satrapias divisioni inter liberos obnoxias, in feuda redigere solet; scil. ut primogenito consulat, & poten [...]iae nervis in unum glomeratis, suus familiae splendor mul [...]itudine liberorum in posteritate non gravetur. Nic. Burgund. de Cons [...]t [...]d. Fla [...]driae, Tract. 7. num. 7. gentile families) I suppose none doubts to be lesse ancient than the Conquest, for so much of it (at least) as is of ancient Tenure, (as Mr. [Page] Lambard desires to qualifie it:) Nay, and seems to give expresse allowance to it, without distinction of lands, by that 36th of those Laws in Ingulphus copy, which after the Conquest, he granted to the people of England, and were indeed (as the title of them intimates) the Laws of the Confessour, his predecessour; or rather, say Camb. Britan. Seld. Polyolb and Spelm. Councils. some, of the Confessours predecessour, Canutus: Si quis intestatus obierit, liberi ejus hereditatem aequaliter dividant. So runs the Law according to Notes on Eadmer. p. 184. Mr. Seldens version from the original French or Norman. Some haply may take this as intended onely as a rule for goods, not for lands too. But to that it may be replied, that the word (hereditatem) there (if of that acception then, as since and at this day) will not admit of that construction; since, by the common opinion both of elder and more Cowell Interpr. verb. Heir, and Hereditament. As also Instit. lib 2. tit. 14. pag. 166. modern Lawyers, nothing passeth with us here in England, jure haereditario, but onely Fee, and that Hereditaments are such things as do naturally, and of course descend to the heir, and neither to the Executour or Administratour, as chattels do, whence that of Littleton, Sect. 1. Feodum idem est quod haereditas; answering to that of Lib. 4. fol. 2 [...]3. b. Bracton, long before him: Feodum est id quod quis tenet ex quacunque causa sibi & haer [...]dibus suis. See to this purpose Glanvill, lib. [...]3. cap. 27.

But here we meet with an objection. By this argumentObjection. (will some say) you restrain and ti [...] up the Constitution to lands onely, excluding goods, or chattels, as our Lawyers call them, from what ground, see in Sir Hen. Spelmans Glossary, verb. Capitale, to which add Freherus his Notes upon the Decalogue, published anno 1610. Precept the last. To construe it, (ISolution. [Page] must confesse) or of either singly, or alone, were, in my judgement, too much to restrain and streighten it, and in [...]ffect to conclude it a lame and imperfect Constitution, ordering the intesta [...]e dead mans estate, and the disposal thereof, but to halves, as we say; wherefore I conceive, that to take the word (Inheritanc [...]) here to comprehend both, (as I suppose aeh [...]e doth in that 68. of Canutus Laws, whereto this here, if it were not taken thence, may seem to have some reference) isObjection. So [...]u [...]on. not more reasonable, than to understand it ei [...]her of chattels, or l [...]nds singly, seems to me otherwise.

Why but then (say they) you admit of a po [...]e [...] of devising Inheritance by will, and consequently make F [...]e and Free-hold deviseable, and that by Law, arguing from those words: Si quis intestatus ob erit, &c. [...]rue; dis [...]inguishing times: for ( [...] take it) nothing was more usual in those See Gesta Guli [...]l. Du [...]s, &c. p. 200. b. times, (I mean before the Norm [...]n Conquest, and this, if you ma [...]k it, is o [...]iginally a Law of the Confessours, or rather of Canutus, his predecessour) than to dev [...]se and give lands away by will, though therein they receded from (their first copy) the German custome, of Nullum testamen [...]um; a provision afterwards received into the body of the Feudal Law, which thus hath it: Lib. F [...]udo [...]. 1. tit. 8. parag. 1. & ibi Ho [...]om [...]nnus. Nulla ordinatione defuncti in feudo manente vel valente. It was then, I say, a usual thing, with their Lords consent at least, to dispose of their land by will, especially their Bocland, thence haply, amongst other titles given it (as being sometimes termed and turned V [...]rsio Fragmenti Saxon in Text. R [...]f [...]ns. Alodium, otherwhile LL. Aluredi, cap. [...]7. apud [...]ornalens. LL. Ca [...]ut. c [...]p. 10 [...]. ibid. LL. Edo. in Lamb. [...]ol. 136. a. terra hereditaria, often LL. Ethelredi, cap. 2. in J [...]r [...]al. terra libera) not seldome called Judic. Civit. Lond. ibid. cap. 1. LL. Canu [...]i, c. 32. ibid. & Glossar. ad calcem LL. Hen. 1. ve [...]bo Bocland. terra testamentalis, that is (as an old Leiger-book in Guildhall London expounds it) terra [Page]quam homo potuit in l [...]cto suo languens legare: with this limitation notwithstanding, that such Bocland were not by precaution in the original gift or grant, liable to that or the like restriction, in point of alienation, occurring in the 37th of King Alfreds laws, which neverthelesse extended b [...]t to strangers, a man being there forbidden to alienate his land of that nature [...], i. e. [...]xtra cognationem vel progeniem, or, in the Civil law phrase, extra familiam, from his own kinred or family, whence perchance it came afterwards to passe, that in such terragentilitia, the heirs concurrence was required and used in the alienation. Instances of this kind (of disposing land by w [...]ll, I mean) might be given in abundance, but a few may serve the turn. To passe over, as obvious, because publike, King Alfreds will, at the [...]nd of his acts and life by Asserius, though I might here perhaps not impertinently take up that of Regis ad ex [...]mplum, &c. to let that passe, I say, as also for the like reason, to omit Byrh [...]ri [...]ks will of Mepham in Kent, extant in the Perambulation, pag 492. whereunto (if need were) I could add many more examples, as well out of St. Albans private History, now of late made publike by my deceased friend Dr. Watts, as from the Records of the Church of Canterbury, whereof, besides the copies of some whole wills, I have by me several extracts: To let all these passe, I say, I shall onely instance in a will or two, one of a very eminent pe [...]sonage, an Etheling, Of whom see Spe [...]d, Hist. in the life of Ethelred the 3 [...] Monarch. Prince Ethelstan by name, the son of King Ethelred, which I shall set before you in the Appendix, Scriptura 18, as Scriptura 22, the other; with some imperfections and misprisions here and there, I confesse, [Page] but through the Transcribers fault that entered them in the Leiger, and by reason of his ignorance (it should seem) of the Saxon tongue and character, which I dare not undertake to rectifie. Thus for practice. As for law: besides that power in all men in those times to devise land in general, by their wills, without any violence deduced and concluded from that 68 of Canutus laws, providing how a mans whole estate (the Lords Heriot onely excepted) shall be disposed of, in case he die intestate, we have a more expresse law for it afterwards, the 76th I mean, for such land at least as is there termed [...], i. e. (as Mr. Lambard construes it) terraomni lite soluta, or (as it is turned in Jornalensis, and the 35th of the Confessours laws de Heretochiis in Mr. Lambard, fol. 136. a.) terra acquietata comitatus testimon [...]o. Let me illustrate it by a passage in a Charter In Armar. Eccles. Cant. of King Edmund to Ael [...]here his Thane in the year 941. of certain lands and possessions there called Mulanton, running thus: Prout pater ipsius Aelsheri priorum temporibus nostrorum, sub contestamine totius popularis Senatus, sua pecunia, ab illo & ab alio, prout tunc temporis mos erat, adqu [...] sivit. In effect it was, as I conceive, if not the same with Bocland, (called terratestamentalis, not onely because deviseable, but also in regard of the publike testimony of the Shire, required and used in the passing of it otherwise than by will) such land (like that mentioned of Mr Selden, Tit. of Hon. par. 2. cap. 5. pag. 631▪ and there said to be holden, qu [...]etè & absque omni c [...]lumnia; or like that passed or conveyed, as in Sir Henry Spelmans Councils, pag. 319. and 333.) as was unquestion [...]bly a mans own, as upon the purchase or [Page] grant of it confirmed and assured to him in the legal way of those times, such haply (like those of latter times passed by Fine) the conveyance whereof was recorded and inrolled, or entred in the Shi [...]e-book, in publike Shire mo [...]e after proclamation there made, for any to come in that could lay challenge, or pretend right un [...]o it▪ whence not improbably our manner of recording conveyances, sometimes (as in Canterbury)Vid. Bract [...]n, lib. a. cap 1 [...]. num. 12. fol. 38. [...]. in the Hundred sometime in the Burgemo [...]e, otherwhile in both, whereof I am not unfurnished of instances. Thus for that kind of land. Now for Bocland, and how the Law stood there: Glossar. ve [...]bo Bocland. Sir Henry Spelman, I confesse, is cleer of opinion against all power of ali [...]na [...]ion in the owner, and that of necessity it must [...]e left to descend to the heir, and thence is called terra [...]aereditaria, grounding upon that 37th of King Alureds laws, which he there recites. Under favour, that Law cleerly makes for the contrary, allowing unto the Possessour a power of alienation, saving where his hands are tied from it by an expresse provision and prohibition to the contrary, from those (the Ancestour, or who else) it came unto him from; a caution in my apprehension of the same nature with an exception, which (as gl. Ex his in addit. in parag. item placet. Insti [...]. de donatio. S [...] parag. ut autem lex. in Auth. de non alien. Civilians use to say) firmat regulam in non exceptis. And as for its name of terra haereditaria, and the argument upon it, it is easily answered, as thus: so called it was to distinguish it from Folcland, otherwise called Gafolland, wherein the Tenant being but as it were a Lessee, Usufructuary, or Fermour, and having no propriety, upon his death, or other expiration of his term it reverted to the Lord, and descended not upon the heir, as Bocland did, at least [Page] ought to do, being (because his own in propriety) hereditary, if not alienated by him in his life time, as it might be, in regard it was as well terra libera, as haereditaria, and so called, which Folcland never was, however Sir Henry Spelman, in a place Glossar. verb. Focland, & verb. Alodium. so assert, likening it to Allodium, which indeed was liberum, and consequently capable of alienation, either by gift or sale, to whomsoever the owner pleased; a property appropriate to Bocland, thence otherwise called, especially abroad, Allodium, whereof more hereafter. But further to cleer the point of Boclands being alienable, and in the power of the owner to dispose of at pleasure, have here a pregnant passage for our present purpose, borrowed from a Charter In Archiv. Eccles. Cant. of Archbishop W [...]fred (who died about the yeer 830.) of the gift of certain houses to his Successours in the See of Canterbury, thus speaking: [...] Quaere: for the writing is not clear. [...]. That is, in our modern English: If any man shall say that this Mansion is not more in my power, or (the power of) my heirs to use, than of the rest of the Society, (or Covent) then let him know, that it never was Christ-church land, nor any mans Bocland before it was mine: and then let him further think and consider by other mens Bocland, as well in priviledged places, as without, whether they may grant away their own (land, [Page] or possessions) or give it for (or, in) their lives times as pleaseth them, or wherefore mine should be of different kind to those of other men. Thus the Charter, as I understand it. Bocland then, I conceive, we may conclude alienable by the owner of it, both by act or grant in his life time, and at his death by will, in the times (I mean) before the Conquest. But afterwards that custome of devising it by will ceased, as did withall the descent of land generally, by equal division amongst all the sons. For, as the English Laws and Customes in general, from that time suffered a daily eclipse and declination by degrees, so this in particular (saving where they were more tenacious of it than elswhere, and in such places, whereof See Stowes Survey, p. 535. London seemeth to be one, as by special priviledge were suffered to keep it up) languished, and was at length supplanted by that other kind of descent, which now regularly takes place throughout the most part of the Kingdome. Insomuch as where this partible descent cannot, to uphold it self, justly plead antiquity and ancient custome, it quite fails, and falls to the ground. And to this passe (I take it) was it come in Glanvill and Bractons dayes, who therefore harmoniously deliver this as a requisite and essential property in land of such descent, that it be not onely by nature partible (as it is by being Socage, if we may interpret Bractons si haereditas partibilis sit, by Glanvills si fuerit Socagium:) but withall, that by custome and of old it hath actually been parted. Now the Kentish men, it seems, the Commons there, I mean, like the Londoners, more careful in those dayes how to maintain their issue for the present, than their houses for the future, (a contrary respect to theirs [Page] who have of late, by Act of Parliament, rid their lands of this Custome, as to that property of Partition) were more tenacious, tender and retentive of the present Custome, and more careful to continue it, than generally those of most other Shires were: not because (as some Lamb. Peramb. pag. 546. from Littleton. give the reason) the younger be as good Gentlemen as the elder brethren, &c. (an argument proper perchance for the partible land in Wales) but because it was land, which by the nature of it, apperteined not to the Gentry, but to the Yeomanry, whose name or house they cared not so much to uphold, by keeping the Inheritance to the elder brother. And thus at length, though 'tis like enough from small beginnings, (as many times great streams have but narrow fountains) it became so spred and diffused over all the County, that what was not Knight-service, but Socage-land, or of Socage Tenure, was in time (in Mr. Lambards phrase) apparrelled with the name, and (as may be added) qualified with the properties of Gavelkynd. And hence also it comes to passe, both that we very rarely, or never meet with any land there at this day, (other than Knight-service land) that is not of Gavelkynd nature, and of a partible descent, and that withall both our printed and manuscript Custumals, whether general or particular, use never a word of Socage Tenure, but of Gavelkynders, Tenants in Gavelkynd, Tenements of Gavelkynd▪ and such like, as Mr. Lambard observeth, pag. 544. And notwithstanding the ancient printed Custumal in Tottell claimeth freedome onely to the bodies of the Gavelkynders, which may be the truer reading, yet Mr. Lambards may, especially at this day, passe well enough, by whose copy it [Page] is claimed as due to all the Kentish men in general, as, for the generality of the Commons, by common intendment, such at this day. But of these things hitherto. Yet ere I proceed to the next Proposition, let me discharge my self of a late promise for inquiry into the following Emergent:

Whether the Writ, De Rationabili parte bonorum, lieSee the Preface to the Reader. at the Common Law, or by Custome.

THis Writ is grounded and dependeth on a tripartite division of a mans personal estate, whether dying testate or intestate, and leaving behind him wife and children; as in case he leave onely a wife, and no children, or children onely and no wife, upon a bipartite. In the former of which cases, one third part of the goods belongeth to the widow, another to the children, and the third (called the Deaths-part) to the use of the Defunct, to be disposed either by himself, as he shall see good by his will, or for him, if he die intestate, by the Ordinary in pios usus. In the latter case, one moyety falleth to the widow, or to the children, (as the case shall be) and the other to the use of the dead, as before. In both cases, to the children of the deceased, each of them a rateable part, provided that such child be not his fathers heir, or were not otherwise advanced by him in his life time, unlesse haply (for hereof there is some question) waving that his former portion, he shall choose rather (as in the case of lands) to take the benefit of this partition by the way of Hotchpot, which is all one with the CiviliansHotchpot. Collatio bonorum, or the Lumbards Missio in confusum. [Page] See Dr. Cowell, and Sir Henry Spelman, in Hotchpot.

Now that there was any certain, or definite part or portion of the deceaseds goods or estate, (whether real or personal) any Quota pars, or Legitima, as the Civilians term it, by any custome here nationally observed, due to the widow or children in the Saxon times, doth not (that I can find) appear by any Law or other monument of theirs now extant. The plainest and most visible footsteps of that tripartite division or partition by this Writ intended, appear in that remarkable place of venerable Bedes Ecclesiastical History, lib. 5. cap. 13. where we read of one, who, Testatorlike, disposing of his substance or estate, Omnem, quam possederat substantiam, in tres divisit portiones. E [...]quibus unam conjugi, alteram filiis tradidit, tertiam sibiipsi retentans, statim pauperibus distribuit. The Saxon reading hath it more for our purpose thus: ‘ [...].’ Where mark, the third part is there said to belong to himself: ‘ [...],’ &c. plainly insinuating that the other two as rightly apperteined to his wife and children, each of them a third. But withall observe, that this is the act of an house-keeper in the Province or Region (as there called) of Northumberland: Paterfamilias in regione Northan [...]ymbrorum, &c. so is he described; and such a testimony indeed it is as makes much (I confesse) for the antiquity of that Custome (of a tripartite division) yet surviving and currant in those Northern quarters of the Kingdome, but whether, in right construction, extensive any further, or [Page] concluding for a national custome in that particular, especially since traceable in few other parts or counties of the Realme, by any later or elder footsteps, I think may well be doubted. To proceed then, (for I intend to state and handle the point rather as an Historian, relating the matter of fact, than as a Disputant, arguing the case:) as for that Law or constitution of Vid. Spelman. Concil. tom. 1. p. 425. King Edmund, which some insist upon for the widows right to a moyety of the estate, if she have no issue, otherwise, in case of issue, and remaining sole, to the whole, that cleerly takes place onely vigore contractus, or by force of a precedent contract; the Law in that particular being ushered in with this ground, or supposition: [...], &c. i. e. if it shall be so mutually agreed or covenanted (before or upon the marriage.) Nor doth that Law of King Canutus, par. 2. cap. 68. conclude for more than this, namely, a partition of the estate amongst the wife, children, and nighest kinred, to be made judicio Domini, by the Lord (of the Soils) discretion, ‘ [...],’ i. e. rightly, or according to right, and ‘ [...],’ i. e. after the measure, ra [...]e, or proportion that to them belongeth, not determining or making any mention, what that right, that measure, or proportion is in certain, (not the widow and children each of them a third; for then where were the kinsfolks share?) but leaving it ind [...]ni [...]o and undetermined, as what haply being ordered by the Lords discretion, and that swayed and regulated by (that optima legum interprete) Custome, might vary with the place. Nor was any such partition currant here, in case there were a will, for what saith the Law [...] ‘[Page] [...],’ &c. i. e. If any one depart this life intestate, &c. implying liberam testandi facultatem, a free liberty to dispose otherwise by will: as doth also that Law of his Successour, the Si quis intesta [...]us obierit, liberi ejus haereditatem aequaliter dividant. Vid. Cl. Seldeni Not. ad Eadmer. pag. 184. c. 36. Confessour, ratified and re-inforced by his Successour, the Conquerour, providing that the children of persons intestate shall equally divide the heritage. In which respect, and because by taking no notice of the widow, (as neither doth that other Law of Canutus, par. 2. cap. 75.) it tacitely seemeth to exclude her, I know not well what (much pertinent to the point in hand) can be concluded from that Law. And as not from this, so neither, I conceive, from that Law of King Hen. 1. cap. 1. because it concerns and speaks onely of the Kings own Barons and Tenants: [Si quis Baronum vel hominum meorum infirmabitur, sicut ipse dabit vel dare al. jusserit. disponet pecuniam suam ita datam esse concedo, quod si ipse praeventus vel armis vel infirmitate pecuniam non dederit nec dare disposuerit, uxor sua, sive liberi, aut parentes, aut legitimi homines ejus eam pro animâ ejus dividant sicut eis melius visum fuerit] And is seemingly no national provision, no rule intended for the generality of the Subjects, the Communalty: or if it were, yet with such expresse full and free liberty (inconsistent with this Writ) given by it to the party to dispose of his estate by will at his pleasure, as tacitely was granted both by that fore-cited 68. Law of King Canutus, and that other of his Successour the Confessour, whereof also before. So that admitting, or supposing a will, the subsequent division or distribution (prescribed by that Law of Hen. 1.) took no place, as by consequence neither did that reasonable or rateable [Page] part intended by this Writ. Passing therefore hence, let us next (as next in order of time) consult (that Oracle of the Law) Judge Glanvill, living and writing in Hen. 2. dayes. He indeed, lib. 7. cap. 5. is expresse for this kind of tripartite division: Cum quis (saith he) in infirmitate positus testamentum facere voluerit, si debitis non sit involutus, tunc omnes res ejus mobiles in tres partes dividentur aequales. Quarum una debetur heredi, secunda uxori, tertia verò ipsi reservatur: de qua tertiâ liberam habet disponendi facultatem: verùm si sine uxore decesserit, medietas ipsi reservatur. And to the same purpose again, [...]od. lib. cap. 8. Si post debitorum acquietationem aliquid residuum fuerit, tunc id quidem in tres partes dividetur modo praedicto (he refers to the forecited fifth chapter) Et de tertia parte suum ut dictum est faciat testamentum. To which kind of tripartite division, he plainly seemeth to refer, and have respect afterwards, lib. 12. cap. 20. where he layes it down in terminis, as a thing recepti juris, warranted by the Custome of the Realme, that is the Common Law, saying: De catallis autem (these are the words of the Writ) quae fuerunt praefati R. praecipio quod ea omnia simul & in pace esse facias, ita quod inde nil amoveatur nec ad divisam suam faciendam, nec ad aliam rem faciendam, donec debita sua ex integro 1. reddantur. reddatur. Et de residuo post fiat rationabilis divisa secundùm consuetudinem terrae meae. Thus Glanvill, with whom unanimously concurr Vid. Bract. & Flet. p. 125. Bracton and Fleta. Hence now many learned men conclude this tripartite division, and the Writ waiting thereupon, to be rather by or at the Common Law; than (as is thought by others, and those learned men also) by Custome, and that hereof [Page] Magna Charta, cap. 18. expressely taketh notice, in the Savio, or Limitation at the end, thus Englished: Saving to his wife and children their reasonable parts. The Opponents, and such as take the contrary part, endeavour to elude this as a matter rather of Counsel than command. So (for example) Dr. Cowell, Instit. li. 2. tit. 13. parag. 2. followed by Sir Edw. Coke, in the second part of his Institutes, pag. 33. who to assert his opinion in the negative, (his denial of the widow and childrens right to a Reasonable Part by the Common Law) thus there adds: The nature of a saving regularly is, to save a former right, and not to give, or create a new, and therefore, where such a Custome is, that the Wife and Children shall have the Writ, De rationabili parte bonorum, this Statute saveth it. And this Writ doth not lie without a a particular Custome, for the Writ in the Register is grounded upon a Custome, which (as hath been said) is saved by this Act. But where going on he further adds, that Bracton was of the same opinion, quoting for it, (as Of Testaments, par. 3. parag. 16. fol. 112. b. and 133. a. where he is out in saying, that Glanvill took his ground from Magna Charta, which is impossible; Glanvill being dead long before: an eirour (it seems) occasioned by that marginal quotation, not Glanvills own, but his that set him forth, or some others. Swinbourne before him) that place of Bracton, fol. 61. a. [Neque uxorem, neque liberos amplius capere de bonis defuncti patris vel viri mobilibus, quàm [...]uerit eis specialiter relictum, nisi hoc sit de speciali gratia testa [...]oris, utpote si bene meriti in ejus vita fuerint, &c.] with submission, they are both of them mistaken: that which Bracton there delivers, being a plain exception, deviation and diversion from the general rule by him (as by Fleta after him, totidem verbis) just before laid down, and taking place onely in Cities, Burrows and the like, by particular custome of the place, as (amongst others, ut quidam dicunt, say they) in London, and that upon this double consideration, namely, first, the [Page] advancement of trading and traffique (the life of all Common-wealths, especially of Ilands) which would be much encouraged by this liberty left to the Merchant or Trades-man, to dispose of his labours and gettings, where and how he saw best; and secondly, the countenance of vertue, and discountenance of (her opposite) vice, when by a necessity laid upon the wife and children, to comply with the husband and father in such wayes, both of thrift and duty, as might win and wear his love, and consequently, make him willing to requite their merit, the vertuous should be rewarded, the vicious discarded: Vix enim (say they, Bracton and Fleta both) inveniretur aliquis civis, qui in vita magnum quaestum faceret, si in morte sua cogeretur invitus bona sua relinquere pueris indoctis, & luxuriosis, & uxoribus malè meritis: & ideo necessarium est valde, quod illis in hac parte libera facult as tribuatur. Per hoc enim tollet maleficium, animabit ad virtutem, & tam uxoribus quam liberis benè faciendi dabit occasionem, quod quidem non fieret, si s [...] scirent indubitanter certam partem obtinere etiam sine testator is voluntate. And this (I take it) is the thing (the good of the Commonwealth, by the maintenance of traffique, much encouraged by the liberty of a free Devise) by Glanvill, though somewhat darkly, pointed at, lib. 1 [...]. cap. 11. where (acquainting us, that an Assise of Mortdancester lies not for houses or tenements, [which are wont to passe inter catalla in Burrows, as Bracton and Fleta inform us] because of a greater commodity redounding to the Kingdome by another kind of Assise, an established course I suppose he means, warranting the liberty of a free Devise of such things, tanquam catalla) he [Page] saith: Item ratione Burgagii cessare solet assisa per aliam assisam excausa majoris utilitatis in regno constitutam. But notwithstanding it were thus in London in those times, (when Bracton and Fleta wrote) yet afterwards it seems that custome (of a free and arbitrary Devise) ceased, and (haply upon those counter-grounds, or contrary considerations, brought and laid down against it by the same Swinbourne, fol. 113. a.) gave place to this kind of tripartite division: witnesse (besides Mr. Lambard, Perambul. pag. 561.) what in a book lately published, intitled the City-law, and said to be translated from an ancient French Manuscript, pag. 7. is delivered in these words: And it is to be understood, that when a Citizen of the same City (London) hath a wife and children, and dies; all the goods and cha [...]tels of the said party deceased, after his debts be paid, shall be divided into three parts; whereof one shall remain to the dead, and shall be distribu [...]ed for his souls benefit; and the other part shall be to his wife, and the third part to his children, to be equally shared between them; notwithstanding any will made to the contrary, &c. But (to proceed) although Glanvill, Bracton, and Fleta, one and all, seem to conclude for this rule or order of Partition, to obtein and take place by the Common Law; yet, as this course did not long survive them, but, except where particular Custome (such as that whereon the Writs in the Register are grounded) kept it up, at length grew into dis-use, in the case both of testate and intestate persons (witnesse on the one hand, the liberty time out of mind generally used at pleasure to dispose of personal estate made by will; and on the other, the Ordinaries well-known power of distribution of Intestates [Page] goods, which is not without warrant from that clause at th' end of Magna Charta's 18th chap. whereof in Matthew Paris, and Et si quis liber homo intestatus decesserit, per manus parentum propinquiorum & am [...]corum su [...] [...]m, & per visum Ecclesiae distribuantur, salvis unicuique debitis quae desunctus debuit: which in effect is the same with that of Bracton, and Fleta: ad Ecclesiam & amicos pertinebit executio. elswhere:) so with all these passages in Glanvill, Bracton and Fleta, are so inconsistent with what, in the case of testate persons, themselves with almost the same breath, deliver, that I know not how possibly to reconcile them. Whereof the former thus: Potest enim quilibet homo liber majoribus debitis non involutus, de rebus suis in infirmitate sua rationabilem divisam facere sub hac forma secundùm cujusdam patriae consuetudinem, quod Dominum suum primò de meliore & principaliore re quam habet recognoscat, deinde Ecclesiam, postea vero alias personas pro voluntate sua. Quicquid autem diversarum patriarum consuetudines super hoc teneant, secundùm jura regni non tenetur quis in testamento suo alicui personae praecipuè nisi pro voluntate sua aliquid relinquere, libera enim dicitur esse cujuscunque ultima voluntas, secundùm has leges sicut & secundùm alias leges. The other two, to one effect thus: Cuilibet autem sit licitum facere testamentum de rebus suis mobilibus & se moventibus, & quatenus superfuerit deducto aere alieno, scilicet debitis aliorum, &c. Thus, in mine opinion, do the same men more than seem to fight with, and contradict themselves, and how to set them agreed is past my skill. But indeed vix tanti est, 'tis not much material, since if we shall admit (what some eagerly contend for) this rule and order of partition to have sometime been by Law currant throughout the Realme, yet by general disusage and discontinuance, it is now, and that not lately, antiquated and vanished out of ure, both in this (of Kent) and other Counties, surviving onely (for ought I hear) in the [Page] Province of York, and some few Cities; and that it should ever be revived, at least in the case of testate persons, until first some way may, if possibly, be found, how to dissolve this knot, and remove this rub of flat repugnancie and disagreement of those ancient Authours (the vouched Patrons for it) with themselves in the point; I for my part, saving better judgement, see but little reason, and further than thus dare not in a case so controverted and canvased by learned and judicious Lawyers, interpose any judgement of my own.

PROPOSITION IV.

Whether Gavelkynd be a Tenure or a Custome.

IT will not be amisse (I hope) to usher in the answer to this Quaere, with some digression concerning Tenures. Facing then about, and looking back upon the times before the Conquest, inquire we out the Tenures (if I may so call them) then in use, and what other succeeded in their places afterwards at and since the Conquest. Here I expect it should be granted (for 'tis avouched I am sure by several See Mr. Seldens Titles, 1. Edit. pag. 228, 273, 301. Illustrat. upon Polyolb. p. 208 Sir Hen. Spelmans Glossary, verb. Feu [...]um. men of credit) that before the Conquest we were not in this Kingdome acquainted with what since and to this day we call Feoda, Foreiners Feuda, i. e. Fiefs, or Fees, either in that general sence I mean wherein they are discoursed of and handled abroad in the Book thence intituled De Feudis, at home in that [Page] called Littletons Tenures, or in that particularly understood of us, when we treat or speak of Knights-Fee, which could not then be known here, when Knights themselves were not in being, as (saith a Record in the Cathedral of Canterbury, whereof more And in the Appendix, Scriptura 21. anon) they were not till the Conquerours time Or if in effect they were known to us, yet in terms certainly they were not: for the name of Fee, or Feudum, in this sence is no where to be found in any our Records or Monuments of those dayes now extant, and of credit, if my self and others have not been more unhappy to misse it, than indiligent to seek it. 'Tis true, it occurrs in the fifth and sixth of the Laws ascribed to the Confessour, set forth by Mr. Lambard, in the Varia lectio there in the margent; but besides that the Text in each place reads it Fundo, those Laws, I take it, for the most part, especially as to their phrase, carry not that antiquity; but, like those of like kind in Scotland, ascribed to King Malcolm the Vid. Spelm. Glossar. verb. Feudum, pag. 258. col. 2. & verb. Baro pag. 81. col. 1. second, and King Alureds will at the end of the Story of his life penned by Asserius, where the word several times occurrs, savour of a later dresse. The like no doubt may as truly be said of that, Qui in feodo suo, in the old Latine Version of King Edgars Laws, following those in the original Saxon set forth in the late Edition of the Councils by Sir Henry Spelman, pag. 446. And may we not upon this (amongst other grounds) question those Charters in Histor. Croyland. Ingulphus, thus far, I mean, as to doubt, whether many, if not the most of them, speak not another than that tongue in which they were originally penned, as being by the Authour, (though English born, yet afterward Normaniz'd, by conversing there some [Page] time, as a Retainer and Secretary to Duke William, afterward Conquerour, and King of England) whose Story is penned in Latine, the better to suit with it, taught to speak the Latine of his time, and late Masters native Countrey? upon this ground, I say, that amongst many other phrases scattered here and there, not in use with the Saxons, nor ever heard of here in England till about Ingulphus own time, (such as Averia, Ballivus, Bedellus, Communa pasturae, Justiciarius, For is factura, Tenura, Weif, Stray, with many more such like, which I forbear to name in this place) occurrs Feudum. For example, in the Charter of Witlaf, the Mercian King, dated anno 833. we have it thus: & xl. acras de eodem feodo in campo de Deping. The like in a Charter of Bertulph, another Mercian King also, dated anno 860. and in some other of later date from succeeding Kings, we have—de eodem feodo de Gerunthorpe, and the like: whereas it may very justly be doubted, whether either the Laws, Stories, or other, either written or printed monuments of credit of any Nation or Countrey, can shew the word (Feodum, or Feudum) in use amongst them (but in stead thereof Beneficium, Feudum's elder brother, or the like) until about that age, until (I mean) after the beginning of the tenth Century from our Saviours incarnation. And hence give me leave, with Buchelius, in his Illustrations upon Heda's History of the Bishops of Pag. 116. Utrecht, to suspect that list or memorial, Pag. 111. De vassis sive fide addictis Ecclesiae & Episcopo Trajectensi, (as there it stands intituled) of Heda ascribed to Adelboldus the 19th Bishop of that See, who after he had sate 18 years, died in the year 1028. as indeed a piece unadvisedly [Page] referred to that time and place, and in all probability belonging to some Successour of his. But be that as it will, I see nothing however that may render us unsatisfied of the truth of their assertion, who say that the Conquerour brought, or introduced first into this Kingdome Feudum, Feodum, or (as in English) Fee, taken as it signifies Feudal services, especially military, (praedium militare) the sence in which, as it regularly occurrs in the Hotom. de Feud. lib. 2. pag. 309. parag. ult. tit. 51. Feudal books abroad, so constantly in Domesday-book here at home, for distinguishing the land from other there said to be holden per gablum, ad [...]irmam, in Alodio, and other like Tenures there occurring: the Introducer borrowing (saith one Spelman, ubi supra. of my Authours) the term, (he might have added the Customes) from his own native countrey, Normandy, which he concludes from a passage of himself there quoted out of Domesday-book, thus speaking:—In eodem feudo de W. Comite Radulfo de Limes' 50. carucat. terrae sicut fit in Normannia: thus subjoyning: Feudum & Nomanniam jungit, ac si rei novae notitia è Normannia disquirenda esset. But with submission to better judgements, I question whether those words: sicut sit in Normannia, may not relate to Carucatae terrae, being an expression not used of Annuente Rege, omnes Carrucat as, quas Angli Hidas vocant, funiculo mensus est: Order. Vital. Hist. Eccles. ad▪ ann. 1089. the Saxons for a Plough-land, (but Aratrum, Sulinga, Hida, Familia, Mansio, Mansa, Manens, Casata, and the like terms of quantity) rather than to Feudum, from which too it is further distanced in the quotation than from the other. But to let that passe: to the Conquerour (it seems) it is, that the name and customes of our English Fees, or (as we now vulgarly call them) Bacons [...]lements, tract. 2. p. 30. Tenures, such at least as are military, ow their introduction, [Page] whatsoever the Ch [...]p 1. Sect. 3. p. 16. Mirroir (a book whose antiquity is too much cried up of some) hath to the contrary, as if in terminis known here in England in King Alfreds dayes, by whom (as the Authour there pretends) i [...] was ordained that Knights▪ Fee should descend and fall to the eldest, and Socage among all the sons: whereas in very deed we knew neither one nor t'other in those dayes, they with the rest since and at this day called Fee-simple, Fee-taile, Fee-ferme, Frank-fee, as also Grand and Petite Serjeanty, Escuage, Burgage, Villenage, and the rest, in the book of Tenures and elswhere obvious, being all of the Norman plantation, and we by them, at least since their Conquest of us, brought acquainted with them, not knowing what Fee (in that notion) meant before, nor being to this day agreed among our selves, as neither are the Feudists and other writers on that argument in other parts, upon the etymologie and derivation, either of that o [...] the word whereunto it is opposed, Allodium; wherein indeed Authours of several sorts, Lawyers I mean, Etymologi [...]ts and Antiquaries so much differ and disagree, as that the further we wade in the research of their opinions in that kind, the more uncertain still we come off, and the further we are from (the end of our inquiry) satisfaction. However, I will on this occasion adventure to offer my sence, which, if well considered, may perhaps help to end the difference.

Not to repeat that variety of other mens opinionsFeudum derived, in the point, of which some, and those the most, and with most general applause and acceptation, fetch the former (Feudum) from Fides; others from Faida, or Feida (bellum) a third from Foedus: a fourth from the [Page] German Fueden, qua [...]i a fungendo, i. pascendo, or (as De We [...]c [...] ▪ bild. S [...] ▪ [...]. cap. 49. num 8. Gryphiander hath it) from the Saxon Foden, i. e. nutrire: to let these derivations all passe without any further repetition, as obvious enough in the writings of the Feudists and elswhere, especially (with some additions of his own) in Martinius Lexicon▪ Philologicum: as likewise not to repeat the like variety amongst them, (as obvious as the other) concerning the latter, (Allodium) which some will have to be a derivativeand Allodium. from à, the privative particle, and Laudium, or Laudatio, as a possession acknowledging no Authour, no Lord of the Soil, but God alone; others from that privative particle, and Lodes, quasi sine Lode, that is, [...]ine vassallo, as a mad man is called amens, to say, [...]ine mente, as whose possessour is no Vassal, whilest a third sort fetch it from Alsleud, as we should say, possessions common (i. e. such as may freely be given or sold) to all or any of the people, the many: like in this (say some) to what of old we here in England called Folcland, by which (but how properly, since Folcland is parallel'd with what sithence we call Cowells Interp [...]eter, & West, Symbol g p r. 1. l b. 2. s [...]ct. 603. Copy▪ hold, may well be doubted) they are found to illustrate it, contrary to a fourth derivation of others, who hold it inseparable from the family, and thence of the Germans called Ein Anlod. A fifth sort there is, that draw it from the foresaid privative particle à, and L [...]od (in French L [...]ud) a Vassal, as it were, without vassallage, or without burthen, which we English men (saith my Authour rightly) at this day call Loade: not further, I say, to trouble the Reader with either any longer repe [...]ition of these and the like (for there are some other) various opinions of this kind, or any Catalogue of the several [Page] Authours of them, I will, as I promised, offer my conjecture at each words etymologie, with submission of it to better judgements.

In short then I say, that each of the two words in its original, which is German, is a compound consisting of two syllables, of which two, the latter (to begin with that) I conceive to be the same in both, and is no other than what is borrowed towards the composition of many several words of the same original, used and continued both in those, especially the Teutonic parts, and also here in this Iland, from the time of the Saxons setling here, down unto this day, though with some little variation of the Dialect, occasioned by tract of time bringing its corruptions, and the intermixture of other languages: and that is with us hade, head, hode, with the Teutonics heyd, and heit, sometime hat, betokening in each place (as dome, and ship, anciently written scip, in the terminations of many of our words:) a quality, kind, condition, state, sort, nature, property, and the like. Hence the military, masculine, feminine, childish, paternal, maternal, fraternal, sisterly, desolate, presbyterial, neighbourly, quality, nature, kind, condition, &c. of a Knight, a Man, a Woman, a Child, a Father, a Mother, a Brother, a Sister, a Widow, a Priest, a Neighbour, &c. is termed Knight-hode, Manhode, Womanhode, Childhode▪ Fatherhode, Motherhode, Brotherhode, Sisterhode, Widowhode, Priesthode, Neighbourhode, &c. The quality, nature, existence, of the Deity is stiled Godhead with us, with our Ancestours, the English Saxons (who wrote and had that hade, which we since write and have hode and hood) Godhade. Head in Maidenhead ows it self to the same original, denoting [Page] out the virgin-condition, or maiden-quality of the party. Hood in Livelyhood is also sprung from the same root, whereby a mans state of subsistence is signified: and the like may be said of hood, in Falshood, Likelyhood, and a many words more of like termination, as expressing and setting forth in the one, the false, in the other, the probable, likely, condition of the thing predicated. This may also help us in the etymologie of what we use to call Feud, or deadly feud, Feud. (in deadly Feud) derived. our Ancestours, the Saxons [...], the Germans Fhede, Feide, and Faide, which in truth is but a compound of their F [...]h, i. e. Hostis, Inimicus, as we say at this day a Foe, and hode, hade, head, heyt, &c. [...]i. conditio, status, qualitas, &c. together importing the condition of enmity in the person who bears it. I could here enlarge with instances of very many Teutonic words thus terminating, I mean, in their Dialect with heyd, heit, and the like, and by such their terminations predicating, as is said before, a quality, condition, &c. such as Allenheyd, Felheyd, Fijnigheyd, Hebbelickheyd, Heyligheyd, Maeghdelickheyd, and numbers more obvious in every page of Kilianus Dictionarium Teutonico-Latinum, and elswhere; but I fear to be tedious.

Seeing now what the latter syllable in Feudum and Allodium, in their several originals, signifieth; and having taken the words thus asunder, let us next consider of the other part of the composition, their former syllables, which in Feudum (the former) is Feh, Feo, or Feoh, signifying as Saxon Gospels, Matt. 25. 18, 27 also chap 28. 12, 15. & Verstegan, pag. 218. Pecunia in the general, so more peculiarly a Salary, Stipend, Wages, intended of us when we say: Officers live by their Fees; whilest in the other, Allodium, the former syllable rightly written, [Page] is All, Al, or (as with the Saxons) eal. Put we now the syllables together again, and then the former will come forth Feo-hode, Feh-hode, or the like; the latter, All-hode, and that most appositely, if applied to the Feudists Feudum and Allodium, considered in their originations and primitive acceptions. The former of which when first Vide tit. Feud. [...]. t [...]t. 1. De his qui feudum dare possu [...]t. Spelm. Gloss. verb. Felonia, p. 253. Cowells Interpret. verb. Fee. instituted, was but personal, not, as afterward, perpetual, patrimonial, hereditary, or holden (in Glanvill and Bractons phrase) ad remanentiam, but as a Clergy-man holds his Benefice, (hence in some ancient Biblioth. Cluniae. pag. 1390. & Cujac. de Feud. lib. 3. tit. 1. Charters called Feodum) onely for life; the Tenant being but a meer Stipendiary, a Termer, at best but a Freeholder for life, Usufructuarius, and indeed some were not so much, but held only (as our learned Verb. Felonia. Glossarist hath it) ad voluntatem Domini, as Vulteius de Feud. lib 1. cap. 1. num. 14. others, precariò, not unlike our Tenants at will since and at this day: the land was onely lent, as the German term for it Kilian. Diction. verb. Leen, & Dr. Zouch, Descript. jur. temporalis, sect. 7. (Lehen) seems to intimate. In processe of time, degenerating and receding from their first institution, they became perpetual and hereditary, yet holden, as formerly, with a condition of service on the Tenants part, and stipendii loco & nomine on the Lords; by way (as it were) of Salary, Pension, or Stipend from the Lord, to gratifie and recompence his man withall for such his service, to which he was obliged under peril of forfeicture by the withdrawing thereof. I dare not add in consideration of Fealty or Homage, (in those times) since, though that acknowledgement in the Feudal Law, of some Fee tenable without an oath of Vid. Hotoman. de Feud. lib. 2. tit. 3. parag. 4. Fealty be indeed justly taxed for a paradox of such who will have Fee to come of Fides, (whence haply our legal maxime, that all Tenures [Page] regularly are liable to Fealty:) yet might Fee, by this derivation of it, stand with Fealty, and the Tenants of it be called Vi. Spelm. Glossar. verb. Fideles. Fideles feudales without a soloecisme; a good argument for the derivation of it thus, rather than from Fides, as of more scope, and more consistent with Fee of all sorts than that other derivation doth allow. Fees, I say, were holden but in service, nomine quasi alieno, the Dominium, that at least of Lawyers called directum, (though the utile were transferred on the Tenant:) the propriety, I mean, remaining and abiding still in the Lord, together with a power of restraining his Tenant from alienation, and consequently such land was but partially, conditionally, not totally and absolutely, granted out. Contrariwise, that which was termed, in opposition to it, Allodium, as it was hereditary, perpetual, and patrimonial, so was it [...]ans all condition, free, and in the power of the possessour to dispose of it ad libitum, how he pleased, either by gift or sale, without asking any man leave: and as it was hereditary, perpetual, patrimonial, and free land, so was it withall possessed totally and wholly, not as our land generally in this Kingdome in Subjects hands at this day said to be holden in Dominico suo ut de feodo, as our Lawyers phrase it, but rather in Dominico suo ut de jure, (the owner having Dominium both directum and utile:) or in the Feudists phrase, and after their unanimous, harmonious definition of it, pleno jure; integrè; ex toto; or ex solido, as De Gest. Pontif. lib. 1. Malmesbury hath that which Hist. Novor. l. 1. p. 18. Vi [...]. Dr. Zouch, Descript. jur. temporal. sect 5. Eadmerus expresseth by in Alodium, quit of all services, like Frankalmoigne, whereunto Mr. Selden there in that respect resembles it. I may call it absolutely, immediately, or (if [Page] you will) independently, without acknowledgement of any superiour Lord, not unlike the Prince of Haynault, holding onely (saith my Spelm. Glossar. verb. Allodium. Authour) de Deo & Sole, or, as other absolute Princes, Gratiâ Dei, in a word, in totality: whence the terms of praedia immunia, terra propria, fundus proprii juris, patrimonium, in As in Hundii Metropol. Salisburg. Bibliothec. Cluniac. & Praemonstrat. Hist. Ultraject. & Miraei Cod. Donatio, &c. Charters and elswhere given to such possessions. Probably, land of this nature was the same with our Bocland, which I sometime find in the Latine rendring of some Saxon pieces turned by it: (hence a hint to judge of the one by the other:) for what in the 11th Chapter of the first part of King Cnutes Laws is read Bocland▪ [...], &c. and in the old Latine version of it in the Kings Ms. and Jornalensis, is turned haereditas: Si quis Tainus in haereditate sua terram (it should be Ecclesiam) habeat, &c. in another like old version in the book of Rochester called Textus Roffensis, is rendred Allodium▪ Si liberalis homo quem Angli Thegen vocant, habet in Alodio suo Ecclesiam, &c. By Allodium also is turned in the same Record (Textus Roffensis) what occurrs in the Saxon fragment exhibited by Mr. Lambard, Perambulat. in Mepham▪ pag. 500. under the term of [...] ▪ Et si villanus ita crevisset sua probitate, quod pleniter haberet quinque hidas de suo proprio Alodio, &c. Allodium, it seems thence, being properly such land as is fully a mans own. Shortly then, Feudum, Fee, or land holden in Fee, is no more (considered in its first and primary acception, to which they must have regard that will hope to judge aright of the ground for the first imposition of the name:) than what was holden in Fee-hode, by contraction Feud, or Feod, i. e▪ in a [Page] stipendiary, conditional, mercenary, mediate way and nature, and with the acknowledgement of a superiour Lord, and a condition of returning him some service for it, upon the withdrawing whereof the land was revertible unto the Lord: in which respect, as the grant thereof is improperly called a Donation, being but Vid. Fleta, lib. 3. cap. 2. parag. 4. Feodalis dimissio, i. e. a Demise in Fee, so the Deed or Conveyance by which it was demised, is as improperly termed a Charter of Donation, being no more than a Charter or Deed of Feoffment. Such, I say▪ is Feudum. Allodium is contrarywise what is holden in All-hode, in totality, in a totall, full, absolute, immediate manner and condition, without acknowledgement of any superiour Lord, and free from any tie or compact for the returning any service at all for it unto any. Thus far (and I hope not too far, nor impertinently) for cleering the etymon of Feudum and Allodium, as the argument, so the torture of many learned pens, amongst whose derivations of one and t'other, I humbly crave this of mine (such as it is) may be admitted for future Indagatours, and all others of unforestalled judgements freely to consider of.

And now to spin on our former thred, and to reassume our argument of the Introduction of our Fees or Tenures by the Conquerour, wch that etymon coming in the way caused me a while to set aside: I here professe to concurr with them, who upon the question put, resolve it in the affirmative, whereof our learned Verbo Feudum. Glossarist, for one, thus: Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior, Conquestor nuncupatus, &c. and a little after: Deinceps vero resonarunt omnia feodorum gravaminibus▪ Saxonum[Page]aev [...] ne auditis quidem: no other Tenures, or, in the Scottish expression, Haldings of land, being formerly here in use but these two, Bocland, and Folcland; The one (saith my Lambard, in verb. explicat. verb. Terra ex s [...]ripto. Authour) a possession by writing, the other without. That by writing (so he adds) was a freehold, and by charter; hereditary, with all immunities, and for the free and nobler sort. That without writing was to hold at the will of the Lord, bound to rents and services, and was for the rurall people. It may be added, that the former took name from the lands booking, or entring (with the limits of it) in a Codicil, (as then called) a little book, or (as we since call it) a Charter, which if the land were given to a Lay-man, was in way of Seizin delivered to the party that was to have the land, (hence haply that ceremony we retain of delivering a Conveyance as the parties Act and Deed) or, (if to a Monastery) laid and left most commonly upon the Altar: Ego autem licentiâ & consensu illius, testimonioque Episcoporum & Optimatum suorum, omnes terras meas, & libros terrarum propria manu mea posui super altare Christi in Dorobernia, &c. as it is in the close of a In Armar. [...]jusd. ecclesiae. Memorial of the gift of Monkton and other manours to the Church of Canterbury, in the year 961, by Queen Edive, or Edith, whose picture, in thankful remembrance, was until of late reserved in that Churches Treasury. Hence was such a Charter vulgarly known in those times by the name of See Scriptur. 20. in the Appendix, & Spelm. Glossary. a Landboc, in the Latine of the times Telligraphum, sometime Codicillus, and the like. Observe yet further, terram haereditario jure conscribere, & liberam proclamare, (the Latine phrase for creating Bocland) was a prerogative royal, or a Royalty, and out of the power of any [Page] Subject, whence that passage often occurring in Subjects grants of lands in perpetuity to the forenamed Cathedral, and other places, viz. and such a one King, [...], i. e. haereditario jure conscripsit, Vide Sp [...]lm. pag. 319, 333. & Bed. Hist. Eccles. Anglo-Saxon. lib. 3. [...]. 24. & Chronolog Sax. anno 854. as also that: liberam omninò proclamavit, and such like. King Ethelreds priviledge (as called) confirming to that Cathedral (amongst other things) their whole possessions, is hence by Sp [...]lm. Concil. p. 507. one of the Subscribents called, [...]. But notwithstanding this Enfranchisement, the land was very seldome alienated by the possessour in Frankalmoigne, without (what the Law of Anno 9. Hen. 3. c. 36. & anno 7. Ed. 1▪ Vide Custumar. Norman. cap. 32. Mortmaine afterward required) a concurrent, or at least a subsequent confirmation from the King, whereof examples are obvious in the List of that Churches lands and benefactours, published in the Antiquities of Canterbury, pag. 210. as also of the concurrence of the Magnates, or Nobles, in such Bocland-grants, principally in that of Mallings. You shall have the very words, because rema [...]kable: Anno Domini DCCCxxxviij. Ecgbertus & Athelwlfus Rex filius ejus dederunt Ecclesiae Christi in Dorobernia Mallings in Suthsexan, quod viz. manerium prius eidem Ecclesiae dedit Baldredus Rex, sed quia (mark this) non fuit de consensu magnatum regni, donum id non potuit valere. Et ideo, &c. Bocland thus flowing originally from the Crown, upon all forfeictures, and particularly that of the estate of the possessour, for deserting the warrs, as if there were no mean between the King and him, the King alone was to take the LL. Ethelr. par. c. 2. & LL. Canut. par. 2. cap. 75. forfeict. But of Bocland more anon.

Some other kinds of land ('tis true) there were in those dayes, but all (I take it) reducible to the precedent [Page] Diehotomy, such as, 1 Gafolland: [...],Gafolland. as it is in the truce or agreement between Alfred and Guthrun KK. in the Archaion,Neatland. Inland. cap. 2. 2 Neatland. 3 Inland: [...]. so runs the first chapter of King Edgars Laws there. 4 Utland: [...].Utland. as we have it in the will of Byrhtric in our Kentish Perambulation, pag. 495. Of which four, the two former, I conceive, were but the same with Folcland; both one and t'other importing land letten or demised, as Fol [...]land was, to rural people, more Emphit [...]utico, for profit: the one from Gable, or Gafol, i. [...]. Cens, or Rent, being termed Gafolland; the other called Neatland, either from [...], to improve, fructifie, whence [...] for a Foenerator, a Usurer, [...], profit, [...] ▪ profitable, [...], unprofitable, unthrifty, or else which I rather think) from [...], Villanus, Colonus, as the old Version of the 19th & 21th of K. Ina's Laws renders the word, wch comes all to one with Ceorliscus spoken of in that second Chapter of the Foedus Aluredi, & Guthruni, Regum, and there described by his quality to be o [...]e that occupieth Such ( [...]ply) as that in a ve [...]y a [...]cien [...] Deed in Christ Church, called Terra rusticorum. It occu [...]rs in a Charter of Amfridus de De [...]e, of lands in Fai [...]field, made about Hen. 3. time▪ To which may be added what occurrs in a Charter of Hubert t [...]e Archbishop to the Prio [...]y of S. Gr [...]go [...]ies by Cante bu [...]y, viz. De decimls Militum & Ru [...]icorum, &c. Gafolland. As for the remaining two, Inland, Utland, the former was terra dominicalis, land holden in Demesne, in the owners own hands, (and for the most part designed in mensam Domini, whence otherwise stil [...]d in succeeding times Bord-land, like the Civilians and Canonists bona ad mens [...]m) and in this respect may not unfitly be referred to Bocland, regularly of like property. The latter contrariwise, like Gafolland, and Neatland, was land letten out, and, in opposition to Demesne land, termed in servitio, or tenement [...]lis, [Page] that is, granted out in service by the Lord to his Tenants, to be holden of himself, and so we may parallel it, as with Gafolland and Neatland, so with Folcland, being of the same nature: like the Frenchmans Fief s [...]rvant, i. terra serviens, in respect whereof the Tenants were bound to be Retainers, Attendants and Followers to their Lords, Sui [...]ors to their Courts, and were thence called (in the term of Hen. 1. Laws, taken up afterwards of LL. Hen. 1. cap. 8. Bracton, l [...]b. 3. tract. 2. cap. 10. Bracton) Folgarii, concerning which see further in Sir Hen. Spelmans Glossary, verb. Folgare, & Folgarii, as also in the Laws of King Knute, par. 2. cap. 19.

Besides these sorts of land, after ages (since the Conquest) produced many other, such as, Work-land, Cot-land, Aver-land, Drof-land, Swilling-land, Molland, Ber-land, Smiths-land, Ware land, Terra Susanna, For-land, Bord-land, and such like. Of each of which (for some satisfaction to the inquisitive) in a word or two.

The first (Work-land) is land of a servile nature andWork-land. condition, terra servilis, as I find it called, as also (what indeed the word soundeth) terra operaria, because haply at the creation of the manour, and distribution of it into parcels, charged with servile works, such as plowing and harrowing the Lords a [...]able ground, mowing. tassing and carrying in his hay, sowing, weeding, reaping, and inning his corn, making and mending his fences, thatching his barns, and such like: charged (I say) with servile works, and not with Cens or Rent, or if also with rent, yet of the twain more especially with works, and therefore contradistinct, and opposite to Gavelland, which was land liable to Cens or Rent, or [Page] if also to works, yet chiefly to rent; both one and t'other being denominated from what was the more eminent service arising from them. Hereof some footsteps visible in the 66. of King Ina's Laws.

The second (Cot-land) that belonging unto, and occupiedCot-land. by the Cotarii, Cotset [...], or Cotmanni, a sort of base Tenants, so called from certain Cotes, or Cottages, small sheds like sheep-cotes, with some little modicum or parcel of land adjoyning, originally assigned out unto them in respect and recompence of their undergoing such like servile works, or baser services for their Lords, as before expressed.

The third (Aver-land) much the same with thatAver land. before called Work-land, coming of the French Ouvrer, to work, or labour, but chiefly differing from that in this particular, that the services thereof consisted especially in carriages, as of the Lords corn into the Barn, to Markets, Fairs, and elswhere, or of his domestick utensils or houshold-provision from one place to another, which service was of diverse kinds, sometimes by horse, thence called Horse-average, otherwhile by foot,Horse-average thence termed Foot-average; one while within the precinctFoot-average. of the manour, thence named In-average, anotherIn-average. while without, and then called Out-average; theOut-ave [...]ag [...]. Tenant in the mean while being known by the name of Avermannus.

The fourth (Drof-land) that holden by the serviceDrof-land. of driving, as well of Distresses taken for the Lords use, as of the Lords cattel from place to place, as to and from Markets, Fairs, and the like: more particularly here in Kent of driving the Lords hogs or swine to and from the Weald of Kent, and the Denns there, thence [Page] called of old Drofdens, namely from the droves of hogsDrofdens. sent thither, and there fed and fatted with mast, or pawnage; the Driver whereof was vulgarly called Drofmann [...]u.

The fifth (Swilling-land) that let out or occupiedSwilling-land. by Swillings, Swollings, or Sullings, that is, Ploughlands, coming of the Saxon [...], a Plough, (in which notion the word may extend to all arable land) the quantity whereof was various and uncertain, conteining more or lesse according to the nature of the land, a Plough being able to master a greater or lesser quantity, thereafter as it is in quality. This (of Swillings) I find to be a word proper to the Kentish, even from the Conquerours time, (to look no higher) whose Survey (commonly called Domesday-book) shews Suling (and the like) to have been a term in those dayes peculiar to this County, whereby to expresse the quantity of their land, whilest Hide, and the like was of like use elswhere. To this head may be referred Hide-land, Hide-land, Yoke-land, Aker-land, Rod-land. Yoke-land, Aker-land, Rod-land, and the like, being quantities or portions of land let out and occupied by the Hide, Yoke, Aker, Rod, &c. and denominated accordingly.

The sixth (Mol-land) was the same with Up-land, Mol-land. of the Saxons called Dunland, standing in opposition to Meadow-land, Mershland, or Low-land; the Tenant whereof was wont to be called Molmannus: the word (as I conceive) being derivable from the Latine Moles, a heap, of which see further in the Surveyours Dialogue. Hence probably the name of that place in Ash (the seat and patrimony a [...] this day, and from good antiquity, of the Harflets, formerly of the Septvans, [Page] families both in their time ado [...]ned with Knight-hood) called Molland, being of an advantagious situation for the overlooking of a large level of a rich Mershland.

The seventh (Ber-land) that which was held by theBer-land. service of bearing, or carrying the Lords or his Stewards provisions of victual or the like, in their remove from place to place, such Tenant being thence called [...]erm [...]nnus.

The eighth (Smiths-land) that, in respect whereofSmiths-land. the Tenant was bound, as to undergo the Smiths or Farriers office and work, in and about shooing his Lords horses and carriages, so also to find and furnish him with materials (of iron) for that purpose.

The ninth (Ware-land) the same that otherwiseWare-land. called in the Latine of the times, Terra warectata, or Terrajacens ad warectam, that is land lying, or suffered to lie [...]allow, coming from the French Garé, (their g here, as in many other words, being turned into our w) whence with them Terre garée, for old fallow-ground.

The tenth (Terra susanna) land, not much unlikeTerra-susanna. unto, if not the same with the former, being superannated land, or land with over much tillage worn and beaten out of state, and therefore of necessity lying over year, and being converted from tillage to pasture, until it may recover state, and be fit for tillage again, the term or denomination coming from the French Susanné, signifying stale, grown old, past the best, or overworn with years.

The eleventh (For-land) the same (I take it) thatFor-land. we otherwise use to call Fore-aker, whereof see more in Sir Henry Spelmans Glossary, verb. Forera.

The twelfth and last (Bord-land) that holden andBord-land. [Page] occupied by the Bordarii, or Bordmanu [...], the same (I take it) with the French Bord [...]ers, i. e. Villeins or Cottagers, such as hold by a servile, base, and drudging Tenure, of them called Bordage. You may read both of the one and the other in the old grand Custumier of Normandy, cap. 53. Within the [...]ignification of the word (Bordland) are comprehended also (as is already hin [...]ed in this chapter) lands holden in Demesme (of the Saxons termed [...]) and designed to the furnishing of the Lords boord or table, and the maintenance of him and his family in victual. For which see Bracton, lib. 4. tract. 3. cap. 9. num. 5. Which kind ofVide Fletan [...], lib. 5. cap. 5. p [...]rag. 18. Foster-land. land the Saxons used to call Foster-land, quasi fostering land, that is land ad victum, a term obvious and very frequent with the religious men of those dayes, who as they had their special Ferms and portions of land assigned them ad victum, so had they other as peculiar to their clothing or apparelling, land ad vestitum, which▪ from the Saxon [...], vestis, or vestimentum, they called Scrud-land. They had withall their Sextary-land, Scrud-land. Sextary-land. which was such as apperteined to the office, and was intrusted to the care, of the Sacrist or Sexton, and was designed chiefly to the upholding & maintenance of their Church or Temple, both in the Fabrick and Ornaments. Besides all these, they had their Almes [...]and, which was that appropriate to their Almnery,Almestand. a parcel or place of the Monastery set apart for harbour and relief to such poor people (for the most part) as were allied, or otherwise related to the Monks.

I may not he [...]e omit Over-land, a name attributedOver-land. to such land as lieth by or along a Rivers side, and coming of the Saxon [...], i. e. margo, the bank of a River: [Page] whence that known places name lying by London, alongst the Thames-side, called St. Mary Overies: compounded of the aforesaid Over, and Ree, betokening a River, or Current of water. Land of this name we have at or neer Ash in Kent, alongst the Stour-side, running to Sandwich Town and Haven.

I might to these add Monday-land, and the like,Monday-land. which with it fellows, borrowed denomination from this or that week day, and that in respect of the Tenants obligation to such or such servile works or services, upon such or such dayes of the week, in respect of that land. But I purpose to digresse no longer, having for brevity sake, wittingly omitted the quotation of the places where these several names occurr, which otherwise I should willingly have added, and shall onely in the Appendix, Scriptura 23. present the Reader with a copy of a Saxon charter making mention of those two, Fosterland and Scrudland, as somewhat more remarkable than the rest.

Now returning to our Bocland, you must know, that notwithstanding that introduction of new Tenures by the Conquerour, we did not streightway forgo our Bocland, that kind of Tenure I mean, but reteined it both name and thing, witnesse first what occurrs in In lib. Hosp. S. Laurentii propè Cantuar. a Deed sans date of certain messuages, by Roger, son of John, Alderman of Radingate in Canterbury, granted in Frankalmoigne to St. Laurence Hospital neer the city, founded by Hugh, of that name the second, Abbat of St. Augustines there in the year 1137. viz. Duo messuagia quae sita sunt in terra d Bocland, de qua nulli responde [...], &c. where we have not onely Bocland mentioned, but the nature of it also in part se [...] forth. Witnesse [Page] also another passage to the same effect in a like ancient In Archiv. Eccles. Cant. charter to the Church of Canterbury, for the grant of a parcel of land lying without the wals of the city, between Queningate and Burg [...]e, running thus: Volo autem ut monachi teneant terram illam omnino liberam, sicut ego & antecessores mei, & nemini inde respondeant. Witnesse lastly, Domesday book it self, where though haply not the name of it, (as neither of Folcland, Saxon terms both) yet the thing, to my apprehension, is very obvious and often occurring under the name and notion sometime of Tainland, otherwhile (and I think more often) of Allodium. Hence the phrase (for the former) of Vide Cl. Seldeni Notas ad Eadmer. pag. 170. clamare ad Tainland; of tenere in Alodio, for the other: both taken up (as I conceive) in opposition to Fee; but the former so termed, because indeed Bocland, or Alodium, was properly tenable by Thanes, (hence in the eleventh chapter of King Cnutes Laws, par. 1. Thegn and Bocland in the original Saxon, as Thegen and Allodium in the Latine version in Textus Roffensis, meet as relatives:) not but that it was sometime held by Ceorles, as who were not incapable of holding it, (witnesse the old version of the Saxon Fragment in Mr. Lambard, whereof before:) but when so, as improperly there, and as much out of place as Knights▪ Fee (proper to Knights and the nobler sort of people) were in this Kingdome since and at this day in Socagers hands, or in the hands of Sockmen, whose proper tenure was that of Gafolland: [...], as you have it before.

I have often much wondred with my self, whence it should come to passe, that diverse of our Canterbury [Page] houses and ground at this day pay no Quit-rent at all, which others in the same place, though holden in Free Burgage are known to do. But considering afterwards with my self, that Bocland often occurrs inBocland in Canterbury. Landbocs (as they were called) of the place in the Saxons time, I at length concluded, at least conceived, such houses and ground to be the remains of our ancient Bocland, which seemeth to be still surviving in them, as if holden in Allodium, pleno jure, without all manner of chargeable service, and no other (probably) than part of those eighty acres of land (or the like) in Canterburies Survey in Domesday-book thus expressed: Habet etiam ('tis spoken of Ranulfus de Columbers) quater viginti a [...]r as terrae super haec quas tenebant Burgenses in Alodio (so I read it, rather than Alodia) de Rege, or, as a very ancient book sometimes of St. Augustines Abbey, now with the Kings Remembrancer in the Exchequer reads it: Item dicuat Burgenses quod idem Ranulfus tenet quatu [...]r viginti agros de Allodiis eorum, &c. The same Domesday-book (to prosecute this discourse of Allodium a little further) makes mention particularly of some Allodiarii by name in that Kentish Survey,Allodiarii. and there also we may read to this purpose: Has forisfactur as habet Rex super omnes Alodiarios totius Comitatus Chent, & super homines ipsorum. And: In Cantia quando moritur Alodiarius, Rex inde habet Relevationem terrae, excepta terrae S. Trinitatis, & S. Augustini, & S. Martini, & exceptis his, Godric de Burnes, & Godric de Carlesone, & Aelnold Cilt, & Esber Biga, Siret de Cilleham, (these last three are mentioned also in the Survey there of Canterbury, amongst those whose lands were Sac and Soc-free, i. e. quit against the King of Sac and [Page] Soc:) & Turgis, & Norman, & Azor. Super istos habet Rex forisfactur am de capitibus eorum tantummodc, & de terris eorum habent Relevamen qui habent suam Socam & Sacam. I rather read it habent, than habet Relevamen, because by charters both of the Cathedral and St. Augustines Abbey, of those succeeding times, I find the Monks in each place priviledged with the liberties of Sac and Soc, &c. over their Allodiarii, as termed in the charters of the latter place, over their Thegnes, orThegnes. Theines, as in the former, in what form of words see inTheines. the charter of each place, for illustration sake, copied in the Appendix here, Scriptur. 19. and 20. And least these various terms (Allodiarii and Thegnes) rendring them of a seeming difference, should occasion any suspition of their being not the same, for your satisfaction to the contrary, take this note along with you, that those who in the Latine charteis of St. Austins, are termed Allodiarii, in the very same charters exhibited in English, (like as in those at Christchurch) are stiled Thegnes. But what (may it be ask'd) were they then which in some very ancient Records of that Cathedral are named Threnges? Indeed I have met with a RecordThrenges. there, (and you may meet with it here in the Appendix, Scriptur. 21. a choice one in my account, as the book it self was i [...] seems in his, who in the margent of the first page of it long since left this note: Custodiatur benè iste libellus, quia etsi appareat non valere, benè tamen valet, & est libellus satis pretiosus monachis Ecclesiae Christi:) which makes no slight mention of such Threnges belonging to the Monks there, in these very words: Quia verò non erant adhuc tempore Regis Willmi milites in Anglia, sed Threnges, praecepit Rex, ut[Page]de eis milites fierent, ad terram defendendam. Fecit autem Lanfrancus Threngos suos milites, Monachi verò non fecerunt, sed de portione sua ducentas libratas terrae dederunt Archiepiscope, ut per milites suos terras eorum defenderet, & ut omnia negotia eorum apud curiam Romanam suis expensis expediret, unde ad huc in tota terra monachorum nullus miles est, sed in terra Archiepiscopi, &c. To this purpose Gervasius Dorobernensis, then a Monk of the place, speaking of the Archbishops dividing the revenue between himself and the Monks: Sibi etiam (saith he) r [...]servaverunt Comites, Barones & Milites; Monachis verò assignaverunt rusticos & agricultores. These Threnges doubtlesse were the same, which in Domesday-book are somewhere called Drenches, andDrenches. if so, your best satisfaction what they were, will be from the words explication in Sir Hen. Spelmans Glossary. But, me thinks, laying these Records concerning them together, and then comparing them wi [...]h the fore-cited ancient charters of liberties granted to the Monks of Christchurch and St. Augustines on the one hand, and Domesday-book on the other, Drenches, Threnges, Thegnes, one and all, may not unfitly be rendred in that books phrase, Allodiarii: being such Liberales, (as the Saxon Thegnes is not unusually turned in the old Latine translations, as Thegenscipe by Liberali [...]as) such Ministri, Fideles, Servientes, Nobiles, as being by these places dignified with some portions of their Allodium, or Bocland, did militiam ex arbitrio tractare, nullius [...]omini imperio evocati, nulloque feodali gravamine coerciti, (as our learned Glossarist concerning Allodiarii) being permitted to continue in their pristine estate, acquitted from military service and tenure, when [Page] as others were from Threnges turned into Milites, and their land consequently subjected to military fee and tenure. Whether the name of Drenches were taken up from such a cause as our learned Glossarist, from a Record by him there cited, is assigned for it, some reason there is to doubt from the mention of (the terms Synonimy) Threnges, in that Record of Christchurch, as known in that notion here before the conquest, whereas the other sayes they took name first after it: If before it, (as the Christchurch Record) then I see, me thinks, some cause to suspect the term corrupted from Thegnes, i. Thanes, which cleerly that Cathedral had before the conquest. On the other side, if the Record (in the Glossary) be right, and that withall Threnges, Drenches, Thegnes and Allodiarii be (as all the fore-cited authorities laid together, they seem to be) Synonima's, terms identical, then were our Kentish Allodiarii, such as had not revolted from the Crown, by opposing the Conquerour, whether by their aid or counsel, but had peaceably submitted to him and his Empire, whilest consequently others of the county opposing, withstanding, and resisting him and his coming in, had ipso facto forfeited their possessions: and if so, then Spots history, whereof so much before, may well deserve yet another dash, or, if you will, another spot. But thus far of Allodium, as also of what induced it, Bocland, which, as to the name, almost quite ceased with the Saxons, though, as to the thing it survived some time after, under the notion of Allodium, into which it was translated of the Normans here, and of them so altered also in the very thing, that it became thus far subject unto Tenure, as in the opinion of learned [Page] Mr. Seldens Titles of Hon. first Edit. pag. 390. men, it was land (as we say) holden, and so accounted, whence in time that common and received Id. Jan. Angl. pag. 61. Coke Instit. p. 1. fol. 1. & 5. Cowells Interpreter in verb. Fee. axiome amongst us, that in the Law of England (since the conquest at least) we have not properly Allodium, that is, not any Subjects land that is not holden: in which respect, as one Cowell, ubi supra. saith, he that can say most for his estate, saith thus: I am seized of this or that land or tenement in my Demain as of fee, Seisitus inde in dominico meo ut de feodo, &c. And 'tis most true at this day, but under favour, it was otherwise since the conquest, witnesse (besides Domesday-book, where the opposite to Fee, Allodium, is very obvious) those charters afore-cited, the one of St. Laurence, the other of Christchurch, (and such like) mentioning land holden by the Authours or Owners, for which they were responsible to none, as also the Pinenden plea for the Archbishops lands of Canterbury, and the grant in Alodium mentioned in Eadmerus, evidencing cleerly the contrary, and asserting (some of them) the continuance of such creations from the King, to whom, after Textus Roffensis, it peculiarly belongs to grant out, or passe land in that kind: Carta Alodii ad aeternam haereditatem, being there reckoned and ranked inter consuetudines Regum inter Anglos.

Now as our Bocland did not presently expire with the Saxons, its first Authours, upon their vanquishing and supplanting by the Normans, so neither did our Folcland, but survived and continued after the conquest,Folcland. and remains unto this day, though not in the very name, yet in the thing and substance. For, as aforetime the Saxons had their Ceorles, Gebures, Folcmen, &c. as afterwards the Normans their Villani, Bordmanni, [Page]Cotarii, &c. so what the former held was called Folcland, Gafolland, &c. and was opposed to Bocland▪ what the latter, Villenage, and (In some sence) Socage, opposed to Chivalry, Knight-service, &c. and in all likelyhood intended by that Rusticana servitus occurringServitus rust [...] can [...]. in a charter of Wal [...]he [...]nus Mamino [...], granting the [...]thery of Bertrey to the Church of Rochester▪ Quod si aliquid de pr [...]dicto Dominio in rusticanam servitutem translatum est, &c. as it is in Mr. Seldens History of T [...]thes, cap. 11. pag. 313▪

As for the original of Socage, there Vide Adv [...] s [...] ▪ in Ma [...] ▪ Paris. Hist. & D Roger▪ Twysden. Praefat. in LL. Hen. 1. are that refer us (for the finding of it) to a notable passage in G [...]rvasius Tilburiensis his book intituled Dialogus So [...]ccarii, who lived and wrote in Hen. 2. dayes, which (to bring the Reader better acquainted with the state of affairs in the disposal of our Countrey-mens Free-hold in those elder times, when as the English State was new moulded) I here offer to his view: Post Conquisitionem, &c. i. After the I turn conquisitionem, so, in analogie to Conquaestors turning by Conquerour. Conquest of the Kingdome, and the deserved subversion of the Rebels, when the King himself with his Nobles surveyed his new Countrey, a diligent inquiry was made, who they were, which taking part in the war agaist the King, had saved themselves by flight: to all these, like as to the heirs of such as had fallen in the war, all hope of any lands, Or, Ferms. possessions and Or, Revenues. rents, which formerly they enjoyed, was cut off. For they accounted it no small favour to escape with life under enemies. But those who when summoned, came not to the war, or being occupied in houshold or other necessary affairs, were absent, when in processe of time by their constant Or, Observance. serviceablenesse, they had ingratiated themselves with their Lords, without hope of succession, their[Page]children onely, and that but at the Lords will, began to possesse. Afterwards, when becoming odious to their Lords, they were every where expelled their possessions, nor was there any that would restore what was taken away, a common complaint of the Natives came to the King, that being thus hated of all, and bereaved of their estates, they should be enforced to betake themselves to forein parts. At length, after consultation upon these matters, it was decreed, that what by their deservings, and upon a lawful agreement, they could obtein of their Lords, should be their own by inviolable right. But they should challenge nothing to themselves Or, In way. by name of Or, Descent. succession, from the times of the Nations subduing. Which thing truly, how discreetly it was considered of, is manifest, especially when as thus by all means, for their own good, they were bound from thenceforth to apply themselves by constant Or, Observance. serviceablenesse to purchase their Lords favour. Insomuch as who of the conquered people possessed lands, or such like, obteined them not, as seeming to be due by right of succession, but in recompence of his deservings, or by some intervening agreement. Hence we see how precariously matters stood with the generality of our poor countrey men (in point of estate) in those dayes, and with what observance and obsequious respect they were fain to carry themselves towards their conquering Disseisors, to purchase many times but a Modicum of what had lately been their own, and when they had it, see withall upon what kittle, rottering, uncertain terms they held Some cause (haply) of the paucity of Charters or Feoffments so ancient as those times, extant when Bractan wrote, a [...] he observes, fol. 38 [...]. it. The relation comes from a very good hand, and is so authentike, as (for ought I know) it may be credited for it self. But if any man expect further confirmation, I suppose it may be found in Bracton, [Page] lib 1. cap. 11. num. 1. where he hath this passage, and is in part seconded in it by Fleta, lib. 1. cap. 8. Fuerunt etiam (saith he) in Conquestu liberi homines, qui liberè tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines, & cum per potentiores ejecti essent, postmodum reversi receperunt eadem tenementa sua tenenda in villenagio, &c. The same Bracton, fol. 168. a. 170. a. 208. b. Authour, fol. [...]6. and elswhere tells us of a sort of Tenants, ad similitudinem Villanorum Sockmannorum per conventionem de gratiâ Dominorum, licet hoc esset ab initio villenagium, &c. a passage, if not totidem verbis, yet in substance often repeated of him, in my judgement intimating thereby that practice of the Tenants currying favour and complying with their Lords, whereof in Tilburiensis, and their obteining thereby to better their estates, and by degrees to creep out of Villenage into a kind of Socage, a Tenure (thus) grown to that latitude and so comprehensive, as it helps to make that Dichotomy, into which all the Kingdomes lands in the hands of common persons, in point of Tenure are resolved, Chivalry being the other. Now being of such note, a little further enquiry after the antiquity of the thing, and etymologie of the name, to clear the truth in both, wil not do amisse (as I conceive) in this discourse of Tenures.

By the common and received opinion of our Lawyers,Socage, how vulgarly derived. derived I suppose, and first suckt from (that great Ornament of their Profession) Lib. 2. cap. 35 num. 1. fol. 77. b. Bracton, the term is said to come (to use the Authours own words) à Socko, & in [...]e tenentes quitenent in Sockagi [...], Sockmanni▪ dici poterant, [...]o quod deputati sunt, ut videtur, tantummodò ad culturam, &c. This (of Bracton) is [Page] strongly backt by Littleton, in his book of Tenures, where treating of Socage, he saith, that the reason why such Tenure is called, and hath the name of Tenure in Socage, is this: because (saith he) Socagium idem est quod servitium Socae, & Soca idem est quod caruca, &c. A Soke or a Plough. In ancient time (for so he adds for further confirmation) before the limitation of time of memory, a great part of the Tenants which held of their Lords by Socage, ought to come with their ploughs, every of the said Tenants for certain dayes in the year, to plow and sow the Demesne of the Lord. And for that such works were done for the livelyhood and sustenance of their Lord, they were quit against their Lord of all manner of services, &c. And because that such services were done with their ploughs, this Tenure was called Tenure in Socage, &c. Thus Littleton, followed by the generality of our common Lawyers and others since, not without a kind of popular errour, as under favour I conceive, and with submission to better judgements, shall endeavour to evince, without check (I hope) for presuming to control so great, so many, and those eminent Lawyers, whereas here I oppose them not in point of Law, but onely in matter of fact.

The first exception then that I take against this opinion, is its inconsistencie with many several species of Socage-land, or land said to be of Socage kind or tenure; such as Petite Sergeanty, Escuage certain, Frankalmoigne, Fee-ferm, Burgage, By Divine service, and the like, which have no manner of relation to the Plough, or matters of Husbandry, as originally they say Socage had, and therefore still reteins the name, though the cause whereupon it first grew be taken [Page] away, by changing the service into money. So Littleton. An exception (this) warded off by the Patrons of the present derivation, with a distinction of a double kind of Socage, the one, that so called à causâ, the other Coke Insti [...]. par. 1. sect. 117. and 120. ab effectu, and to this latter sort (Socage in effect) are these of them referred, as one would say, Socage at large, because partaking of the like effects and incidents with Socage. But this distinction carries with it no great antiquity, being questionlesse sought out since Bractons time, as necessary to uphold that of his and his followers derivation of Socage from the Plough, otherwise so inconsistent with these Tenures. Not but that I hold them to be Socage, with the common opinion, but from another cause, as I conceive, whereof anon.

In the mean time, I have a second exception against the derivation, which is this: that though that of the Plough may be the chief service, wherein Socage is conversant, yet are the Sycle and the Syth, the Fork and the Flail, and many such like, attendants also upon it, and concomitant services with it in Socage-land: to derive then Socage ab aratro, that being but one species of Socage-services, is as improper under favour, as at this day to define Feudum (comprehending whatsoever fee is constituted for any lawful and honest service, although not military) by what the Feudists call Clientela militaris, because a chief part of feudal service is military, and that of old Fees, for the most part, were granted out militiae causâ, an error into which De Feudis, pp. 22, 23. Vulteius challengeth Hotoman to have fallen, in his definition of Feudum thence, which my Author cals a definition of a genus, by a species, concluding it not logical.

[Page]A third exception taken to it may be this, that if Socage-land be so ancient (under that notion) as King Alfreds time, as Mirroir, cap. 1. sect. 3. followed by by Coke, Instit. par. 1. fol. 14. [...]. some will have it, who tels us that in those dayes Socage-fee was divided between the heirs males, why then was it not rather from the Saxon [...], signifying (what Soc never did with them) a Plough, (whence [...], for Plough almes, being a pension of a penny imposed upon every Plough, in the name of Vide Foed. [...]d. &c. cap 6. Lamb. explicat. verb in ve [...]b. Arationis eleemosyna, & Spel. Concil. pag. 130. Almes) called Sulh-age, or Sul land, to say Plough-service-land? or how could it in those times be called Socage in the sence by this derivation intended, when the word Soc, if it signifie a Plough (as it doth a Plough-share) being in that sence a French word, cannot in any reason be thought to have taken place here, I mean in the Saxons times, and so long before the French, by their Conquest, and intermixture with us following thereupon, had prevailed to suppresse and extirpate the English language? But if it cannot pretend to so much antiquity, as being a term, as well in the original, as in the sence, Norman, or French, then probably they would not have imposed it without some pattern, some precedent, of their own Countrey, as used there in like case: but doubtlesse this was wanting, their See the Grand Custumier of Normandy, ca. 26. and 53. with the glosse there; and Mr. Soldens Tit. Edit. 1. p. 291. term for land of this condition being Tenement Villein, Villein Fief, Fief Roturier, Heritage Roturier, and the like. Besides, had the term been of their imposing, with intent to have it signifie Tillage-service, Char [...] being the usual word with them for a Plough, fetch't from Car [...] (whence their Carucata terrae for a Plough land, no [...] heard of here with us until their coming hither:) more likely it had been called Vide Spelm. Gloss. verb. Carucagium. Carucag [...], or the like, as a certain [Page] Tribute by our Hen. 3. imposed by the Plough, was therefore called Caruage, Carucage, and the like.Carucage

My next and last exception is from Fleta's derivation of Socmanni, Lib. 1. c [...] ▪ though afterwards, lib. 3. c. 16. he concur with Bracton. where speaking of the Kings manours, he saith: In hujusmodi verò maneriis erant olim liberi homines liberè tenentes, quorum quidam cum per potentiores è tenementis suis ejecti fuerant, eadem postmodum in Villenagium tenenda resumpserunt: & quia hujusmodi tenentes cultores Regis esse dinoscuntur, eis provisa fuit quies ne sectas facerent ad Comitatus vel Hundredos, vel ad aliquas inquisitiones, assisas vel juratas, nisi in manerio tantùm, dum tamen pro terra, quorum congregationem tunc Socam appellarunt; & hinc est quod Socmanni hodie dicuntur esse. A Soca enim derivantur, &c. Where, though he say that the Socmanni were Cultores Regis, yet he sayes not that thence they were called Socmanni; but that their Congregation, (their Assembly or Company) was called Soca, and hence it is (faith he) that they are termed Socmanni, for they are derived from Soca, &c. Thus he. Now if from Soca (an Assembly of Husbandmen) then not from Soc, Sock, or Soke, (a Plough.)

To come now to that which I conceive to be theSocage, a new derivation of it proposed. right and genuine derivation of the term (Socage.) To expresse a Liberty, Immunity, Franchise, Jurisdiction, Protection, Priviledge, &c. our Saxon Ancestours were known to have and use a word somewhat variously written of them, viz. Soc, Socne, Soken, and the like. Hence (to proceed to instances) Sanctuary, the priviledge sometime so called, was of them termed [...], otherwise Vide [...] ▪ Aluredi, c. 2, 5. [...]. With them also Spelm. Gloss [...] ▪ i [...] voce. [...] signified a jurisdiction to keep [Page] the peace. Idem, [...]. [...] voce. [...], an immunity from service in war, or from warfare. LL. Ethelstan. apud Exon & G [...]ea [...]e [...]y [...]m. MS▪ in Jornalen. [...], the Lords protection to his man or Tenant. Sp [...]lm. Glossar. in voce. [...], being of a double sence, signified both a priviledge or protection against assaults upon a man in his own house, or under his own roof, and a liberty or franchise to hold plea thereof, with power of animadversion by mulct, or fine. Idem, in voce. [...] imported a liberty or priviledge of Faldage, debarred and denied unto Tenants in times past, and by the Lord, for the inriching his own Demesne lands, reserved to himself. Hence their word, Faldwrth, for him that enjoyed such a liberty. Shall IFaldwrth. now give you one example from the Normans? Nullus enim Socnam habet impunè peccandi, say the Laws of Hen. 1. cap. 24. speaking of Barons having Soch. And (to enlarge yet a little further touching Soc, &c.) as it signified a Liberty, Immunity, Franchise, Priviledge, Jurisdiction, &c. so withall a Territory, Precinct, or Circuit, wherein such a Jurisdiction, and such Priviledges were to be exercised, and that as well in a simple, as a compounded notion. Hence (for the former) Socha of this and that place so obvious in Domesday-book, whereof some instances in Ingulphus, by name, Soka de Donnedike, Soca de Beltisford, Soca de Tad, Soca de Acumesbury. In this sence it frequently occurrs in Hen. 1. Laws, where you may also often meet with Cap. 9. (where I read Placitornm for Pr [...]latorum) and elswhere. Soca Placitorum quam quidam habent in suo de suis, and other such like passages. In the same sence the Register hath it, fol. 1. a. as also Bracton, lib. 5. tract. 1. cap. 2. num. 3. In the Statute de G [...]v [...]leto, made anno 10. Edw. 2. (where the Custodes, the Guardians of the Soke, are termed Sokerevi, of Dr. Cowell) turned bySokerevi. [Page] Rent-gatherers) and in the Statute also 32. Hen. 8. cap. 29. it is used accordingly. Thus of Soke, or Soken simply. In composition it occurrs often with Port. As for example, the Knighten gild, sometime in or n [...]r East-Smithfield London, erected first by King Edgar, and confirmed with some inlargement afterward by succeeding Kings, (being a portion of ground enfranchised with special liberties, to be enjoyed within that extent of it set forth by Survey o London, pag. 115▪ 925. S [...]ow) was anciently called a Soke, and afterwards, (because lying by Eald-gate, now Algate, Port being added, or rather preposed to it) Portsoken, being for extent and otherwise, I take it, the same, which at this day is known there by the name of Portsoken-Ward. Here now we find it restrained to a part onely of a City, a particular Ward, but in some ancient Charters of Liberties granted to several Cities, and other like places of this Kingdome, and particularly to London, you may find it spreading it self to the utmost skits and liberties of the City without the wals, as in H. 3. Coke Instit par. 4. pag 252. Charter to that City, ann. 11. of his reign: Et quod infra muros civitatis, neque in Portsokne, nemo capiat hospitium per vim, sed per liberationem Mareschalli, &c. The like occurrs in several charters to the city of Canterbury, whereof one ('tis Henry the seconds) thus: Concessi etiam eis quietantiam murdri infra urbem, & in Portsoka, & quod nullus, &c. Another (of Henry the thirds) thus: Concessimus etiam quod nullus de civitate vel Portsoka sua captus vel rectatus de aliquo crimine vel forisfacto pro qu [...] debeat imprisonari, imprisonetur alibi quam in prisona ejusdem civitatis, &c. A little after: Et quod nullus externus faciat Forstallu [...] in Civitate praedicta, vel in Portsoka sua[Page]ad no [...]umentum Civium, &c. I spare to add more instances, it being plain enough by these, that the liberty of the place in the full extent of it is intended by Portsoca: you may call it not improperly, the Extent of the Franchise. The fore-cited Statute 32. Hen 8. cap. 29. by occasion there given to mention the Soke of Osweldbeck in Nottinghamshire, useth the terms of Lordship and Soke indifferently, to expresse the territory wherein the custome there mentioned took place, whereby it seems our term (Soke) also signified a Lordship, the word extending thither, I conceive from the extent of the priviledge so called throughout the whole compasse of the Lordship, viz that whoever is dignified with it, and its constant concomitant Sac, as regularly all Lords of manours are, hath that dominion over all men and matters of his Territory or Lordship, as freely to hold plea, and have and take cognizance of the one, and between the other, in such matters, I mean, as (in the language of Hen. 1. Cap. 22. where for accedit, I read excedit, according as the 24th chapter hath it. Laws) exceed not his Soch, his cognizance, as being haply Regalia, certain arduous or capital matters reserved to the King and his Justices. Hence, to have Socne, or to be so priviledged, after a book of Christchurch Canterbury, is aver fraunche court de ses homes, answerable to that of Fleta, lib. 1. cap. 47. Soke (saith he) significat libertatem curiae tenentium, quam Socam appellamus, as also to what I read in an old Ms. amongst other etymologies of this kind: Nota quod Sok est quaedam libertas, per quam Domini tenebunt Curias suas, & habebunt sectam homagiorum. A great Sir Edw. Coke, Instit. par. 2. p. 230. Lawyer of our times gives it this definition: Soc (saith he) is a power or jurisdiction to have a free Court, to held plea of contracts,[Page]covenants, and trespasses of his men and tenants. Within a little after he proceeds to derive it, in a different way (though not without some company) to what is here afore-proposed; how rightly judicent ali [...]. Shortly, Soc, Soke, Socne, and the like, (not to mention its derivation in Clement Reyners Before his Apostolatus Benedictinorum in Anglia. Onomasticon, and some others) betokened we see, both a Liberty, Priviledge, Franchise, &c. and a Precinct, or Territory, wherein such a Liberty, &c. was exercised, if you will, a Sokmanry.

And resolving our Socage (the Tenure so called) to be deriveable from Soke, considered under one of these acceptions, I stood irresolute a while to which of the twain I should referr it. Once I intended to pitch upon the latter: and then me thought, as the territory, precinct, extent, circuit, &c. of a Lordship or Manour was called Soca, and Socmanria, so probably the men of that Territory, Precinct, &c. in respect of their relation to that Soke, and their dependance upon it, and the Lord thereof by Tenure, were termed Socmanni, that is, men apperteining to the Soke, or Lordship, quasi Socae ascriptiiii; homines Socae: and consequently, as in that respect the Men were called Socmanni, so their services, (those duties in works, provisions, moneys, or otherwise, which by their Tenure they were to return to the Lord of the Soke) were called Socage; tract of time having added to Soke or Soc, (what a Sir Edw. Coke, Institut. par. 1. sol. 86. a. famous Lawyer of these times cals a legal termination) agium, in composition (saith he) signifying service or duty, as Homagium, the service of the man; Esc [...]agium, Servitium Scuti, &c. And so the parts being put together, (Soc and agium) it comes forth Socagium in Latine, [Page] Socage in English. Thus, I say, was it sometime in my thoughts to have derived Socage, and indeed not altogether improperly in a large sence; all sorts of Tenants of or to a Soke, (the Caetus Tenentium aut Vassallorum mancrii, the Homage, as sometime called) being from their relations to the Soke or Lordship, and the Lord thereof, not unfitly called Socmanni, and their service & tenure consequently Socagium. But at length, upon second thoughts, I concluded this somewhat too large and vast a derivation, as being comprehensive of all sorts of Tenants, Villeins and all, which, with the In the word Villenage. Authour of the Terms of Law, I conceive to be improperly called Sokemen, or their tenure Socage. Besides, when I first pitch'd upon that derivation, I conceived the tenants whole service to be (if I may so call it) Socal, respecting onely the Soke, not foreign, whereas afterward I found that Socage-service was not so to be restrained, it being ordinary with Tenants in Socage to do service extra, or foris, Socam, as to ride with their Lord from manour to manour, (like the Rod-Knights in Fol. 35. b. & sol. 79. b. Bracton) to carry and pay rent to the Lord, and to deliver him corn and other provisions at his Granary or elswhere out of the Tenants proper Soke, and the like: in which respect also with what incongruity are pure Villeins called Sokemen? since they are so far from being tied to the Soke, that they may be commanded out, and imployed abroad wheresoever the Lord shall please, as well without as within the Soke. Changing therefore my opinion, as to that derivation, and looking further back to that other (the former) sence of Soke (a Liberty, Priviledge, Immunity, Franchise, &c.) I resolved finally to derive and fetch it thence; and thus I make it good.

[Page]Amongst other sorts of land, our books are full of that called Terra servilis, Villein-land, land holden in Villenage, servile land, such namely (for fuller explanation of it) as that holden at the Lords will, both for time and services; in both respects uncertainly; for time, it being in the Lords power (of old Vide Bract [...], fol. 263. a [...] fol. [...]8 [...]. a. 208 b. at least it was so) tempestivè, or intempestivè, to revoke, and resume the same out of the Villeins hands into his own, and for services, the tenant being altogether ignorant, and not knowing over night what service may be required of him the next morning. He might also have greater or lesser taxations laid upon him, at his Lords will: nor might he marry his daughter without a Fine to his Lord, for his leave and licence, & ita semper tenebitur ad incerta, saith my Authour. Now to defend land against the Lord from Villenage, and to come off acquitted of this servitude and servile condition, it was and is necessary of the tenants part to shew a tenure of his land, by opposite and contrary services to those in Villenage, that is, per certa servitia, by certain, expresse, definite, services: and, as otherwise it may be concluded, that his tenure is Villenage, so hereby, if the service be not Regal, or Military, it is as cleerly Socage. For, that certa servitia, are a Supersedeas to Villenage, and do make it to become Socage, proofs are obvious. To this purpose consult we Bracton, lib. 2. cap. 16. num. 9. as also [...]od. cap. num. 6. where he is expresse for the tenants acquital from all other services, (some being expressed in the Charter made him by his Lord) than what are specified therein: Alia omnia servitia & consuetudines quae expressa non sunt tacitè videntur esse remissa: and satis acquietat [Page]ex quo specialiter non onerat. See him again, cod. lib. cap. 36. num. 8. at these words: Cum teneatur Sockmannus defendere tenementum s [...]um erga Dominum suum per cerium redditum in pecunia numerata, vel per quid tale, quod tantundem valeat, quae consistunt in pondere, numero, vel mensura, in solido vel in liquido, sicut frumento, vino, oleo, secundùm quod redditus diversimode accipiuntur, &c. Have recourse also to the same Authour, lib. 4. tract. 1 cap. 23. num. 5. at these words: Dum tamen servitia certa sunt; si autem incerta fuerint, qualecunque fuerit tenementum, tunc erit Villenagium, &c. Add, as agreeable hereunto, that of Sir Edw. Coke, in his Commentary upon Littleton, Sect. 120. To Tenure in Socage (saith he) c [...]rta servitia do ever belong. Hence it is, that the Authour of the Terms of Law, expounding Socage, or tenure in Socage much after the same manner with Bracton, ubi supra, (to wit lib. 2. cap. 1 [...]. num. 9.) saith, that to hold in Socage, is to hold of any Lord lands or tenements, yeilding to him a certain rent by the year for all manner of services. You see it proved then, that certa servitia, certain services, so they be not military, make a Socage tenure. The ground whereof is obvious, viz. that by such tenure (per cert [...] servitia) the tenant hath a Soke, a priviledge, an immunity, a Quietus est, as from Villenage in general, so from all villein, military, or other services than those by contract, or custome Vide LI. Edw. Confess. a pud Cl. Seld. Not. ad Eadmer. cap. 33. pag. 184. charged upon him: a Soke, I say, whereunto [...]gium being added, signifying the service or duty to be returned for that priviledge, it comes forth Socagium in Latine, Socage in English, as, by putting man to Soke, the Tenant is signified, and called Sokeman. But if Soke here carry with it such aObjection. [Page] sence, (of Immunity, Discharge, Priviledge, &c.) how comes it then to passe (may some perchance demand) that liberum is often found to accompany Socagium, as liber also doth Socmannus? For answer, I conceive, toSolution. distinguish Free Socage from Base. Not but that Base Socage had its priviledge as well as the other, as being holden by services set and certain, or determinate; but in regard those services regularly consisted in servile works incident to Villenage, the tenure gat the name of Villanum Socagium, to distinguish it from Liberum Socagium, acquitted of those servile works, and consisting Bracton, lib. 2. cap. 35. num. 1. The rent hence called Quitrent. in denariis. From hence also (such a Soke, such a Priviledge) it is, that the Villanum Socagium in the Kings Demesne is turned of Fol. 7. a. fol. 170. a. fol. 272 a. fol. 209. a. Fleta, lib. 1. cap. 8. Bracton and others, by Villenagium privilegiatum. By the way, hence judge whether I am not right in my derivation of Socage from Soc, Soke, &c. a Priviledge, &c. when here you see Villanum Socagium of Bracton and others, rendred by Villenagium privilegiatum, i. e. priviledged Villenage.

'Tis time now that we inquire how this derivation will suit with those before remembred tenures, By divine service, in Frankalmoigne, Fee-Ferme, Petite Sergeanty, Escuage certain, Burgage, and the like. Whereto I answer, Very well. For, as they were all, through a tacite discharge from corporal service in warfare, excused from military Fee, or Tenure, so on the other side, by reason of an expresse tenure per certa servitia, or per certum redditum, common to them all but Frankalmoigne, they were rendred quit and free of Villenage, and consequently became of Socage tenure. As for Frankalmoigne, as it may challenge an interest in [Page] the composition of Socage from Soc or Soke, and agium, to wit, in the former syllable, so on the contrary side, hath it as little to do with the latter, because such tenure is quit of all service whatsoever, as well spiritual, (unlesse Coke upon Littleton, in Frankalmoigne uncertain) as temporal. But because as it hath not to do with military service on the one hand, so neither with Villenage on the other, and hath its priviledge expressed in that epithete of Libera, it is referred to Socage, as in some sort such.

This then is that (this tenure per certa servitia) that makes tenure By divine service, of no relation to the plough, to become Socage. This makes also Fee-ferme, a meer censual service, (much in the nature of that which among Lib si. 1. ff. ag. vectigal. Civilians is called Ager vectigalis) as being liable onely to so much yearly rent, without any other service regularly, unlesse Fealty, suit of Court, or the like, according as the Feoffment may run, and having nothing to do with the plough, to become Socage. This makes Escuage certain, another tenure of no relation at all to the plough, but quatenus Escuage, as it is simply Escuage, eo ipso, of Bract. fol. 37. a. & 79. b. Knightservice, because by being certain it draws him not forth to any corporal service in war, to be also termed Socage, whilest contrarywise what is properly called Escuage, that namely which is uncertain, and so called, because (besides its subjection to Homage, Fealty, Ward, and Marriage) it is uncertain how often a man shall be called to follow his Lord into the wars, and again what his charge will be in each journey, from being liable, I say to this uncertainty of duty, is Dr. Cowell, Interp. verb. Escuage. Knightservice. Hence (fourthly) it is that Burgage (a tenure no way smelling of the plough, or tillage, being currant [Page] and conversant onely in cities and towns) because holden for a certain annual rent, becomes with the rest Socage. Hence also our Kentish Gavelkynd, considered in its name or term, (betokening censual land) of no affinity with the plough, or plough-service, because, I say, holden per certa servitia, comes to be called Socage. The like might be said of Frank ferme, and other the remaining species of Socage-land: one and all, as properly so called, as rightly, and with as much reason referred to that head of our English tenures, as that which for its plough, or tillage, service is said to be more peculiarly so called, standing not in need of that distinction which the common opinion useth to bring them within the compasse of it, called ab effectu, because of like effects and incidents belonging to them with Socage tenure; a distinction by this derivation rendred frivolous and needlesse, and under favour therefore as fit to be laid aside, as their Coke Instit. par. 1. fol. 86. b. Bacons Elements, tract. 2. p 36▪ assertion is to be retracted, who, to vindicate the reteining of the name of Socage, as of use onely to distinguish that from a tenure by Knight-service, affirm that the cause wherupon the name of Socage first grew, viz. Ploughservice, is taken away, by the change of such service into money, whereas presupposing our present derivation of Socage to be admitted, both name and cause still continue. Thus much for Socage, a term that to me first occurrs in Glanvill, never as yet in any elder Record. In a Roll of In Archiv. Archiep. Cant. Accompts of the Archbishop of Canterburies mannours, for the sixth year of Archbishop Baldwyn (Glanvills Coaetanean and Companion in his voyage and expedition, with King Richard the first, to the holy land) which by computation [Page] was the year of our Lord 1190. it occurs by the name of Soggagium thus: Super Soggagium London remanent xx. d. and this in Croydon manour there, amongst the expences and deductions following the receipts of that year. Which I mention, not as conceiving it no elder than Hen. 2. dayes; yes I rather hold Socmannus, Socmanria, and Socagium to be relatives, and consequently that where the one occurrs, the rest are implied: but Socmannus is obvious in Domesdaybook, and lesse ancient therefore I perswade my self Socage and Socmanry are not.

Nunc age, carpe viam, susceptum perfice munus.

Virg. 5. A [...] n [...]id.

Now therefore to come to our Quaere, (whether Gavelkynd be a Tenure or a Custome) and give it an answer: I confesse there are that in some sort hold the negative, as who will have it to be a Custome accompanying the land where it obteineth, rather than a Tenure whereby the land is holden, holding the whilest the Tenure to be Socage: And of this opinion Perambul. pag. 535, 536, 537. Mr. Lambard doth more than seem to be. Now between Tenure and Custome in this case with us, the difference, as I collect, stands thus: admit it onely a Tenure, and then the nature of the land is not concerned in point of descent; so that in some cases (as the escheat of it by Death or Cessavit, to the Lord that holds over by Knight-service, or to the Crown by forfeicture in treason and the like) it ceaseth to be any longer of Gavelkynd-nature, in point of descent, and goes not, as before to all, but onely to the eldest of the sons, according to the course of the Common Law: [Page] whereas if it be a Custome following the nature of the land, then it is, say they, inseparable from that land where it obteineth, insomuch as notwithstanding this escheat, or whatever other alteration of the tenure, it remains, as before, partible among all the sons, or other heirs where sons are wanting. But to the point.Fl [...] is exp [...]esse for this, lib. 6 cap. 17. p [...]g. whe [...]e h [...] s [...]ith [...]icut in tenurade G [...]lk [...]nde, ve [...]alibi, bi [...]er [...]a partibili [...] est, &c. See Reg [...]st. or g. fol. 78. b. To prove Gavelkynd to be a [...]enure, I shall not need, I think, to multiply authorities, the generality of those ancient deeds that I have seen for the granting lands in Gavelkynd (whereof some are exhibited in the Appendix) are wont to have their Tenendums (the usual and more proper place for the creation of a tenure in any kind of grant) thus phrased: Tenendum either ad or in Gavelikendam, or the like. The office recited of Mr. Lambard, in his Peramb pag. 540. found after the death of Walter Culpepper is alike phrased: Tenuit in Gavelkind being a much repeated passage in it. The Statute 18. Hen. 6. cap. 3. in terms calleth it a tenure, taking knowledge, that there were not at that day within the Shire above 40. persons at the most, which had lands to the yearly value of xx. pounds without the tenure of Gazelkynd, and that the greater party of this County, or well nigh all, was then within that Tenure. And this alone (which I shall add) may evince and clear it to be a tenure, that since the Statute of Quia emptores terrarum, anno 18. Edw. 1. prohibiting the subject to let land to be holden of himself, as there are not to be found any more grants of land Sp [...]lm. G [...]oss. verb. [...]agium. Objection. pro homagio & s [...]rvitio, so neither in Gavelkynd. For brevity sake, I will urge no more authorities of this kind. Being thus then apparently a tenure, how cometh it to passe that we so usually call it the Custome of Gavelkynd, seldome [Page] either making or finding mention of Gavelkynd, but with that adjunct, and under that notion of Custome? Indeed the property of equal partition is and hath soSolution. long been of that eminencie in our Kentish Gavelkynd, and it so much celebrated for that property, that as if it were the sole and onely property of it, all the other, in respect wherof this land may as well be called Gavelkynd as for this, are as it were forgotten, and that onely carries away the name from its fellows: whereas that of Partition (as hath been said before) is but one among the many other properties and customes in our Kentish Gavelkynd, such as Dower of the Moyety; Hereof see Bracton, fol. fol 313. a. Losse of Dower by marriage before or after assignement; Whereof also i [...] him, fol. 276. b. Not to forfeict lands for Felony; Power of alienation at fifteen years of age, and the rest obvious in the Kentish Custumal. And because this, of Partition, amongst the rest, properly depends of Custome, as thwarting the course of the Common Law in like case, hence the Quaere grew at first, whether Gavelkynd were a Custome or a Tenure. Indeed a very improper and incongruous Quaere, and occasioned by the want of that distinction of the Genus from the Species, which through inadvertencie are here confounded, Gavelkynd being the Genus, & Partition the Species. So that if we shall but reddere singula singulis, this doubt will quickly have an end: Gavelkynd generally spoken of and in grosse, is the Tenure; particularly, and with reference to this Partition, it is a Custome accompanying the land of that Tenure. Or, if you rather will,Gavelkynd▪ partition, whether inherent in the land, or not. Gavelkynd is the Tenure; Partition, and the other properties, the Nature.

Which Solution gives occasion of another Quaere, [Page] and that indeed a main one: Whether (namely) this Custome of Partition in Gavelkynd-land, be so inherent in the land, and so inseparable from it, that notwithstanding the Tenure of the land be altered, yet the land shall st [...]l retein this property? No more (I take it) than the rest of the fellow-properties as much depending upon Custome as that, and for which the land may deserve the name of Gavelkynd, as well as for that, and therefore some perhaps will say it shall retein them all indifferently. I shall not here ingage as an opponent, onely invited by this fair occasion, crave leave to propound Academically, what in like case I find delivered by others, conducing (in my judgement) to facilitate the resolution, leaving it to such as have more will to debate, and better skill to decide, the question than my self, to give a fuller and more peremptory resolution in the point. I may (I take it) not improperly state the question thus: Whether the person in this case shall follow the condition of the land, or on the contrary, the land that of the person. The former (it seems) takes place in Paris, the French Metropolis, by the custome of the place: whence that of Choppinus, treating of those Customes, pag. 316. Parisiensi i [...]em munic [...]pi [...] (saith he) quod gentilitiâ pariter sulget Nobilitate clarorum virorum, usus familiae herciscundae minus est obnoxius invidiae. Ubi scilicet, non persunarum, sed fundorum conditio nobilis, plebeiave, partes assignat. To which he adds a little after: H [...]d ide [...] tamen dividundarum haereditatum rati [...] immutata est Parisiis: cum nobiles fundos, plebeii nobiliter, & ignobiles aequojure generosi invitem partiantur. To the same purpose De mor [...]b. Parisior. p. 57. our Authour elswhere [...]els us, that priseo quodem G [...]llici[Page]fori usu, plebeius fundus haud ideo pristinam exuebat conditionem; quòd à recto ipsius Domino aere comparatus esset: Ni ejus nomine comparator in clientelam se, unà cum superiore fundo suo, ad patronum contulisset; which his margin elswhere De Doman. Franc. p. 40. records thus: Anciennement les rotures a [...]quises par le scigneur direct, se partageoient returierement, si non que le dit acquereur les comprint en l'adveu de son fief, le rendant au superieur. Thus went (it seems) the more ancient Custome in those parts. But tempora mutantur. The case of latter times is altered there, as the same Authour gives us to understand in both the last fore cited places: At post [...]rioris aevi Jurisprudentia, mutatis calculis, novam invexit servientis fundi unionem tacitam, & consolidationem cum altero dominante, ac parem adeo utriusque qualitatem praenobilem: Ni si illius emptor subinde contestationem interposuisset contrariae voluntatis. Thus in the former place. In the latter thus: Nostrae tamen aetatis moribus, diversum obtinuit, censuales nempe & obnoxios agros solâ per rectum Dominum acquisitione, prorsus uniri, in unúmque redigi cum praedio dominante: nisi protinus emptor contrariae voluntatis testationem interposuisset. The effect of both is this, that Censual lands by purchase coming unto the direct Lord (the Lord of the Fee, or Over Lord) a [...]e, ipso jure, Feudal, and shall accordingly descend, as thereby re-united to the Fee, unlesse the buyer, at the time of purchase, do protest to the contrary. Will you please to hear his reasons? Unionis nempe vis illa eò producitur, ut ignobile praedium, militari junctum, nobilitetur: eque plebeio as so [...] vectigalibus obnoxio, transeat in feud [...]lis clientelae sortem liberiorem. Thus he, De moribus Parisior▪ pag. 58. Much what one with that in [Page] the other place (De Domanio Franciae, pag. 41.) Quoniam tacita praediorum unione, confusa erant jura servitutum, census & solarii vectigalis: Cum rei propriae nulla superforet servitus, ex [...]ndéque vectigalis sundi qualitas esset immutata. Thus he, whom see also, if you please, De Domanio Gallic [...], pag. 168. num. 2. Also pag. 284. num. 1. To whom add Hotoman, De Feudis, lib▪ 1. tit. 5. parag. 2. in fine. You see by this how the present case stands in some parts abroad. Here at home, as it seems by the very Custumal of Kent, in two several cases therein specified, the descent of Gavelkynd-land is changeable, and the land becomes unpartible; first (namely) when by escheat, happening either by Death, or Cessavit; next, when, by the tenants voluntary surrender, it comes into his Lords hands, who holds by Fee of Haubert, or by Grand Sergeanty, both which Peramb. pag. 537. Mr. Lambard takes to be Knight-service. To which may be added two other cases, which occur in an ancient Kentish Eire, in the Exchequer, ann. 29. Edw. 1. where enquiry being made, and the question propounded to the Kentish men, how many ways Gavelkynd-land might be altered, and delivered from the ordinary and custumary descent, answer was given by four, instancing in the two former, and to them adding those other two, namely, 1▪ Per licentiam Regis, (by the Kings licence) and, 2. Per chartam Archiepiscopi, (by the Archbishops Of this some examples before, Propos. 2. towards the end. Charter.) Against this, and on the other side, (inter alia) may be opposed what is pleaded in the fore-remembred controversie between Burgade Bendings, and the Prior and Covent of Christchurch Canterbury, wherein the Prior, in barr of Burga's claim to the moyety of his and the [Page] Monks manour in Franc bank, See the Append▪ Scriptur. 5. pleads, Quod Dominus Rex qui manerium illud deait praedecessoribus suis, non tenuit illud nomine Gavelkinde. Whence (admitting the plea for Law) naturally seemeth to result this double consectary. 1. That the King may hold land in Gavelkynd. 2. That the King holding land in Gavelkynd, in case he shall grant it away to any religious house, in puram & perpetuam eleêmosynam, (in Frankalmoigne) it remaineth notwithstanding partible, as before it came to the Crown, in their hands at least whom the religious men shall infeoffe with it. Much more doubtlesse might be said in the point, as well pro as contra: but I shall leave it to be further argued by Lawyers, adding onely in a word, what upon the whole matter I conceive of the case. I would ask then, if our Kentish Gavelkynd-land be partible quatenus Gavelkynd? I expect no other than an affirmative answer. If so, and admitting withall that such property in Gavelkynd-land owes it self to a custome accompanying land of that nature; yet I suppose it shall enjoy that property no longer than the land it self continues to be Gavelkynd, which some hold it is not, being once returned and come back again into the Lords hands, (the King especially being Lord) that granted it out in Gavelkynd, or of whom it formerly held in Gavelkynd: because then, as L▪ adigere. parag quamvis. De jur. patron. c. cum cessante▪ extra. de appellat. l. tutores. parag▪ Curatores. de admin▪ tut. cessante causâ sollitur effectus, so by reason of the unity of possession, the Usu fructus (I cannot well English it) being consolidated and made one with the property, that property of being censual land, which Gavelkynd denotes, and which cannot be intended of any land holden in Demesne, and not in service, ceaseth, and is quite extinguished, there being [Page] required to make the land censual, a censual Tenant, one that holdeth by censual services, such as here is none (especially in the Kings case) when once the land is come home again, reduced to its first principles, and re-united to (what, like Fief, is opposed to service-land) the Lords▪ In-land, or Demesne-land, (as in the case of a common Lord) or to the Crown, Bald. & alii citat▪ per Tholosan. Syntag. jur. univer▪ lib. 6 cap. 5. num. 11. à quo omnia feudamoventur & [...]riuntur, the Fountain whence all Tenures are derived, (as in the Kings case) from whence by the letting it out in Gavelkynd, it was formerly severed. To this purpose see Petri Gregorii Tholosani Syntag. Jur. univers. lib. 6. cap. 5. num. 11. But of this also hitherto, for I hasten to an end.

PROPOSITION V.

Whether before the Statute of Wills (32. and 34. H. 8.) Gavelkynd-land in Kent were deviseable, or not.

IN answer whereof, holding with those which resolve it in the negative, howbeit (for my part) not studio partium, but veritatis amore, I shall oppose to such as hold the contrary, what arguments are brought against them and their opinion, in a case of Mr. Halls of Kent, verbatim, as I find them published in print, which here follow, with their title:

[Page]

Reasons and authorities to prove that Gavelkind-lands in Kent, are not, nor were anciently deviseable by Custome.

‘FIrst it is a rule in Law, that an Assise of Mortdancester doth not lie of lands which are deviseable by Testament, &c. and this appears by divers books, as namely, 4. Edw. 2. Mortdanc. 39. 22. Assiz. 78. and Fitz. Nat. Brevium 196. 1. But it appears by Bracton, fol. 276. b. that an Assize of Mortdancester will lie of Gavelkind lands in Kent, and so it appears by divers ancient Records, quod vide in Itinere Johannis de Berewicke, &c. Anno 21. Edw. 1. Copia. fol. 1, 7, 22, 24. & in Itinere H. de Stanton. Anno 6. Edw. 2. Copia. fol. 1, 8, 9, 10, 13. By which it appears plainly, that an Assize of Mortdancester lies of Gavelkind lands in Kent.’

‘But an Assise of Mortdancester doth not lie of lands within the city of Canterbury, because lands are there deviseable by Custome, as it appears in dicto Itinere H. de Stanton, fol. 3, 4, 6. And it is evident, that in the city of Canterbury, (which was anciently part of the county of Kent) there was a special custome used to devise lands, lying within the liberties of the city, and to prove their wils in the Court of Burgmote in the same city. But there needed no such Custome, if all the Gavelkind lands in Kent had been deviseable, &c.’

‘Also the most part of the ancient Wills of Gavelkind lands in Kent, before the Statute of Uses did mention Feoffees of the lands devised, &c. as appears [Page] by the Register-books of Wills, at Canterbury, and at Rochester, whereby it doth appear, that the Devisors were Cest [...]y que uses, and not owners of the land devised, and although some wills of land make no mention of Feoffees, yet there were Feoffees of the same land, as will appear by the deeds of Feoffment thereof, and twenty to one do mention Feoffees, &c.’

‘Also Sir John Fineux chief Justice de R. B. Sir Robert Read chief Justice de C. B. and Sir John Butler, Justice, &c. devise their lands in Kent before the Statute of Uses, and make mention of Feoffees, &c. which had there been a Custome to devise, no question they had taken of it, &c.’

‘Also many ancient deeds of Feoffment of lands in Kent referr to Wills, sc. Dedi, concessi, &c. A. B. omnia terras & tenementa, &c. ad opus & usum perimplendi ultimam voluntatem meam, &c.’

‘Also there are wills to be found of lands in diverse other Counties of this Realm, whereby lands were devised before the Statute of Uses, and no mention made of any Feoffees, as appears in the Register-books of the Prerogative Court, and in diverse other places, and yet without doubt they bad Feoffees seised to their uses, &c. or else they could no [...] there devise the same.’

‘Also the houses and lands in Cities and Burroughs, which were deviseable by Custome, were reckoned inter catalla sua; but it were strange that all the Socage Lands in Kent (which are conceived to be Gavelkind) should be reckoned inter catalla, &c.’

‘And in the Register, fol. 244. there are fourteen several Writs of Ex gravi querela, and none of them [Page] make mention of any County, &c. nor of Gavelkind, but secundum consuetudinem Civitatis, or secundùm consuetudinem Burgi, &c. And if Gavelkind Lands be deviseable by Custome, &c. the Devisee can have no Writ of Ex gravi querela, because there is none before whom the Action or writ should be brought, &c.’

‘Also Mr. Lambard in his Perambulation, writing of the Customes of Kent, maketh no mention of any Custome to devise lands: nor the Treatise called Consuetudines Cantiae in the old Mag. Charta, fol. 147. which (without doubt) they would not have omitted, if there had been any such Custome, &c.’

‘Also between the Statutes of 27. H. 8. of Uses, and the Statutes of 32. of H. 8. of Wills, there were very few Wills made of lands, as appeareth by the Register-books before mentioned, and the most of such Wills as were then made (being but few in number) do make mention of Feoffees.’

‘Also the common practice ever since the Statutes of Wills hath been such, that if a Will be made void for a third part, by a Tenure in Capite of part of the land▪ &c. that third part shall descend to the Heir, and the Devisee shall not have it; and this appears by special Liveries in the Court of Wards proving the same; and by diverse witnesses that can prove the same to be so, &c.’

‘And in Sanders case of Maidstone, in Anno 9. Jacobi Regis, all the lands were devised by Will, and after the Will was avoided for a third part, by reason of a Tenure in capite of a small part of the land, and the third part of all the residue of the lands, being Gavelkind, did escheat to the King for want of Heir, [Page] which land is ever since enjoyed under the Kings title by escheat. And John Wall upon a trial recovered against White the Devisee.’

‘Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome, and so it was agreed per curiam Pasch. 37. El. in C. B. in Halton and Starthops case, upon evidence to a Jury of Kent, & it was then said, that it had been so resolved before, and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome, that the Land is deviseable, &c.’

‘And he that shall conclude upon that place of Fitz, Nat. Brev. 198. l. that all Gavelkind Land is deviseable, &c. may as well conclude, that all Lands in every City and Burrough in England is deviseable, which is not so, as appeareth by Mr. Littleton, who saith that in some Burroughs by custome a man may devise his Lands, &c.’

‘And if Gavelkind Lands were deviseable by custome, &c. Then a man may devise them by word without writing, as it is agreed in 34. H. 8. Dyer. 53. for a man may devise his Goods and Chattels by a Will Nuncupative, so may he likewise devise his Lands deviseable by custome, because they were esteemed but tanquam catalla, &c. and it would be a mischievous thing, if all the Gavelkind in Kent should be deviseable by word onely.’

To these arguments and objections against the custome, certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof, reducible to three heads: which (to avoid all just suspicion of partiality and [Page] prejudice wherewith some zealous advocates and contenders for the custome have been, and may again be, ready to asperse me) I shall here subjoyn; together with such answers and arguments (by way of reply) as I have received from the learned Counsel of the other side, in further and fuller refutation of theirs who endeavour to uphold the custome.

The learned Counsels arguments in behalf of the Custome.

‘FIrst, they deny the old book of 4. Edw. 2. Fitzh. Mortdancester 39. [...]o be L [...]w. But an Assise of Mortdancester lies of land deviseable, if it be true that his Ancestour died seized, unlesse it appears that the Defendaut claims by some other title. But if the Defendant plead that the land is by custome deviseable, and was devised unto him, it is a good barr of the action.’

‘Secondly, They rely much upon the book of Fitzherb. Natura Brevium, fol. 198. which sayes, that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough, or in Gavelkynd, which lands are deviseable by will time out of mind, &c. whence they inferr that all Gavelkynd-lands are deviseable by custome.’

‘Thirdly, They cite the Treatise called Consuetudines Cantiae, in the book called old Magna Charta, and Lambards Perambulation of Kent, fol. 198. that lands in Gavelkynd may be given or sold without the Lords licence, and they interpret the word given, to be by will; and the word grant, to be by deed.’

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The Reply to the fore-going Arguments, by such as stand in opposition to the Custome.

‘AS to the first Objection against the Argument taken from the Assise of Mortdancester, they reply thus:’

‘First, they maintain, that the Custome alone, without an actual Devise is pleadable in abatement to an Assise of Mortdancester, as well as the Custome with an actual Devise is pleadable in barr: for which there is not only that book of 4. Edw. 2. but also Bracton, lib. 1. fol. 272. Ubi non jacet Assisa mortis antecessoris, among his pleas in abatement of the Writ, (having before treated of pleas in barr to it.) Cadit Assisa (sayes he) propter consuetudinem loci, ut in Civitatibus, Burgis, &c. and 22. Assis. pl. 78. where upon the like plea the Writ was abated: and Fitzherb. Nat. Brev. fol. 196. I. (whose authority they think strange to be denied in a matter of Law, wherein he was a Judge, and yet so strongly relled on in a matter of fact and custome, in a place whereto he was a stranger:) and so was it practised and allowed in Itin. Johan. de Stanton, 6. Edw. 2.’

‘And the reason given by the book, why such a custome is pleadable in abatement to this Writ, is because the suggestion of the Writ may be true, that the Ancestour died seised, &c. and yet the heir have no title where the lands are deviseable. And it is the property of this Writ, that the dying seised must be traversed; and though the Tenant plead the Feoffment of the Ancestour, or other matter in barr, (that [Page] is not matter of Estoppell to the heir, as a Fine, Recovery, &c) yet must he traverse the dying seised, and the Jury shall be summoned and charged to inquire, if the Ancestour die quo obiit seisitus fuit, &c. and so are the books of 9. Assis. pl. 22. 27. Hen. 8. 12. Brooke Mortdancestor. 1. Old Nat. Brev. fol. 117. and diverse others. Nor is there any opinion to be found in any book of Law against that book of Fitzherb. Mortdancestor, 39. until the 15th of King Charles, Launder and Brookes case, Crooke, lib. 1. fol. 405. obiter, upon the trial of this custome.’

2. ‘Admit that at this day the Law is held to be otherwise, yet it appears by all the authorities aforesaid, that in those times the Law was taken to be, that the Mortdancestor did not lie where there was such a custome: but it was a good plea in abatement of the writ. And yet Assises of Mortdancestor were then frequently brought and maintained of lands in Kent, as appears by Bracton, and the books abovesaid.’

3. ‘Whether the custome alone be pleadable in abatement; or the custome with an actual devise be to be pleaded in barr, they say it cannot be shewn (if it can they challenge them to do it, who would maintain the custome) that it was ever pleaded one way or other, either in abatement, or in barr, to any one of all that multitude of Assises of Mortdancestor brought at large in that County, when in so small a City and County as Canterbury (where indeed there is such a custom) they shew it often pleaded to writs of Mortdancestor brought there before Roger de Stanton and other Justices in Eyre.’

[Page] ‘Secondly, To the book of Fitzherb. Nat. Brev. fol. 198. upon the writ of Ex gravi querela (from whence the ground of this question sprung) they answer, that the sence and meaning of that book (no lesse than the Grammar of it duly observed) is no more, then that the writ of Ex gravi querela lies there where lands in any City or Town, or in Gavelkynd, are deviseable by custome. Not that all lands in Cities, and Burroughs, and in Gavelkynd, are deviseable by custome. So that the mistake ariseth by making that a categorical, which is but an hypothetical proprosition: and serves rather to ground an argument against the custome. For if the writ of Ex gravi querela does lie there, where there is such a custome; then (à contrariis) it may well be argued, that where a writ does not lie, there is no such custome: and it cannot be said to lie there (for Fitzherbert speaks of places:) where it was never brought.’

‘They say further, that this writ of Ex gravi querela is a formed writ in the Register, appointed by Law as the proper remedy of the Devisee, where such a custome is: and that therefore it hath been required by the Judges, as a necessary proof of such a custome, that it be shewen that this writ hath been used to be brought there, where such a custome is alleaged to be, 40. Assis. pl. 41. and the opinion of Knivet, 39. Assis. Brooke, Devise 43. In like manner, as to prove a custome of intailing Copy-hold-lands, it must be shewn that plaints in the nature of Formedons have used to be entred. (Heydons case in the third Report.) But they say that for proof of this custome in Kent, there is not onely (of 14. in the Register, which all conclude, [Page] secundùm consuetudinem Burgi, or Civitatis) not one precedent of any such writ for Kent: but that it cannot be shewen that ever any writ of Ex gravi querela was brought for any lands in the county at large, out of some City or Town. And it is a question to whom such writ at large shall be directed, there being no form at all in the Register of the direction of any such writ at large; the form there to a City or Burrough being either Majori Civitatis, or Burgi, &c.’

‘They say it could not be, but that question must have arisen, (if not of the custome) whether a will or no will: for the trial of which there was scarce any other course (at least, none more ready) before the course of Ejectments grew to be the practice, then either for the Devisee to bring this writ of Ex gravi querela against the heir being in possession, or for the heir being ousted by colour of a will to bring his Mortdancestor. And therefore they think it not credible that (if such a custome were, and so extensive as to the whole county of Kent) there should be no Record, (if there be, they again challenge the other side to shew it:) whether any Devi [...]ee either brought this writ, or pleaded this custome, (and pleaded it must be, as themselves acknowledge, and is resolved in Launder and Brookes case:) for any lands within the county of Kent out of some City or Burrough: when as they are confident to say, that there is not any custome used in Kent, and that extends through the whole county, but Records may be shewen where it hath at some time been judicially pleaded and allowed.’

‘They add, that Customes, being special Laws, are [Page] suted to the place where they are used; and that this is a custome very proper and sutable in Cities and Burroughs, among Merchants and Tradesmen, that they might dispose of their houses together with their personal estates: and that the pleading of this custome in all Writs and Records is, that they are legabilia, tanquam bona & catalla. And therefore by the books of 40. Assis. pl. 41. and Cokes 1. Instit. 110. it is held that this custome cannot be alleaged in any upland Town. Then how improper is it that all the estates in so great a county should be of no other nature (in this respect) than goods and chattels, and liable to be disposed and carried away by words catcht from dying men? which (they say) may serve too for an argument against the pretended benefit and utility of this custome; especially when the multitude of controversies, arising upon wills, have made it a question, whether it had not been better the Statutes, of 32. and 34. Hen. 8. of wills, had never been made.’

‘And therefore (they say) that in Wyld's case, in the 6th Report, which was resolved by all the Judges of England, it is said expressely (and no doubt upon good consideration) that at the Common Law, lands were not deviseable but by custome onely in Cities and Burroughs, Houses and such small things. And in Matthew Menes case, in the 9th Report, where the will was of Gavelkind-lands in Kent, and a house holden in Capite, it is all along held, that the will there was enabled by the Statute, and puts a case of lands in London deviseable by custome, as a stronger case; which certainly it were not, if lands in Kent were so deviseable.’

[Page] ‘The third objection from the words (doner on vender) they say, deserves no answer more than this, that the same words are used, that the Infant may doner or vender, give or sell, his estate at the age of fifteen, and that no man will say, that he may at that age make a will.’

Thus have you the learned Counsels arguments (faithfully exhibited) both for and against the custom of devising Gavelkynd-land in Kent, before the Statutes of 32. and 34. Hen. 8. concerning the devising of lands by will. Treading (as I said) in the steps of those who oppose the custome, give me leave, by the way of Corollary, to add somewhat, haply not improper to be hinted and insisted on in this argument. Besides then the repugnancie in this custome, to the common opinion both of ancient and modern Glanvil, lib. 7 cap. 1. & 5 Bracton, fol. 18. b. fol 49. [...]. fol 27 [...]. a. fol. 407. b. fol 409. b. B [...]itton with others cited by Dr. Cowell Instit. lib. 2. ti [...]. 20 num. 7. Coke upon [...]i [...] tb [...]ton fol. 111. b. Linwoods Provincial. de Testam. c. Statutum parag. testamentis, vers. legari possunt. Lawyers, it fights with the very nature of Fee, (comprehending, at least with us, Gavelkind, as holden by the Tenant in Dominico suo ut [...]e Feodo) which, though Fees are with us, as in France & elswhere, become Bract lib 2. cap. 19 lib. 4. tract. 3. cap 9. num. 5. Cujac. de Fcud. lib. 1. tit. 2. & lib. 4. tit. 19. patrimonial, & so alienable by gift or sale followed with Scisin in the Alienators lifetime; yet by the seudal Lib. 1. tit. 8. de success. feud. & Vulteius lib 1. cap. 9. num. 70. Law, are indisposeable by will, several reasons whereof are found rendred by the Hotoman. upon that place of the Feuds. Feudists. And it is inconsistent, & at variance with the common opinion of Lawyers, both at home and abroad, so withall, and above all, it makes Gavelkynd degenerate from it self, and its first original, which our Lamb. Peramb. pag. 528. & Spelm. Glossar. verb. Gaveletum. Lawyers and Antiquaries, by an [Page] unanimous vote, referring to the Germans, vouch for it that, amongst other of their Customes published by Tacitus: Haeredes successoresque sui cuique liberi, & nullum testamentum: a passage, or authority, equally insisted on by the Feudists to warrant their Feud. lib. 1. tit [...]. d▪ success. feud & Hotoman. [...]bid. Nullâ ordinatione defuncti in fendo manente vel valente, prohibiting the disposal of Fee by will, and of our municipal Lawyers and others, as for the like, so withall to illustrate the original of our Lamb. & Sp [...]lm. ubi supra. Gavelkind.

But that which in this case (as to matter of fact) very much, if not most of all, works with me, (what it may with others I know not) and induceth me to an utter dis-belief and rejection of this Custome, is certain passages & clauses in several wils extant & to be found in our Registers at Canterbury, and in that at Rochester, intervening and happening in the interim of those two Statutes; the one of Uses, made anno 27. the other, of Wills, inacted anno 32. Hen. 8. (a time most proper for the Custome, if any such in being, by i [...]s fruits, the immediate free devise of lands by will, at pleasure, without that mediate, collateral and by-way, that periphrasis, of Feoffments and their Uses, which now was out of doors; to assert and shew it self:) all which (in my opinion) do plainly tend to the dis-proof of this custome of devising lands in Kent by will, before that Statute of wills. As for example.

1. In the will of Thomas Bourne of Tenterden, dated 3. May 1538. in the Archdeacons Registry at Canterbury, lib. 21. quatern 7. And where (saith he) there is an Act lately made to avoid uses of wills, yet my mind is that Clement my son shall have my house and shop in Tenterden with th'appurtenances to him in fee. And [Page]that John Bourne my son shall have all my lands lying in the parish of Hawkherst to him and his heirs in fee. And I give to my said son John xl. s. upon condition that he will abide and stand to the dividing and order of my lands, as my mind is before expressed. And if he will not stand to, and abide the said order and division, but to shift his part throwly, then I will the said xl. s. shall remain and be had to Alice my wife. Also I give to Clement my son iij. l. upon condition that he do stand to and abide the division and order of my lands and tenements, according as my mind is before expressed. And if the said Clement de refuse my said order and division of my lands, and shift his part throwly, then I will the said iij. l. shall remain and be had to Alice my wife, &c.

Argument.

Had there been a Custome for devising lands by will, what needed that notice to be taken here of the Act for avoiding uses of wills? And why is the Testator put to it thus, to work and wage his sons to consent to that partition and division of his lands, by a Legacie in money to be forfeicted upon their refusall, and for choosing to shift or divide throughly, as a thing in their power by Law, which could not be, had there been any such Custome.

2. In Thomas Sayer, alias Lamberds will of Feversham, dated in May 1538. in the same Registry and Book, quatern. 9. some lands are devised away from the two female Inheritrices, to be sold: and a partition also made between them of other lands, Whereupon [Page] a Legacie in money is given to the heirs at Law, to wage them to consent and condescend to that devise and division, in these words:

Item I will and bequeath to Isabel and Margaret my two daughters, to each of them 6. l. 13. s. 4. d. to be paid to them by Benet my wife in money, or money-worth, in four years next after my decease, upon condition that my said two daughters, their Heirs and their Assigns, to suffer this my present will and testament to take effect, according as I before have willed. And if my said two daughters, their Heirs and their Assigns do this refuse, that my said will can take none effect, according as I before have willed, then I will my said two daughters, nor their Assigns, shall take no benefit nor profit of none of my bequeaths to them before bequeathed, &c.

Argument.

The same Quaere here as before, viz. What needed this conditional Legacie in money, had it not been free to them and in their power and choice, whether his will (for the sale of some land, and for the division of other) should take effect, or not?

3. In John Crowmers will of Pogylston Esquire, dated in February 1538. in the same Registry, book, and quatern▪ this clause to our purpose is remarkable.

Item I will that each of my three daughters, Benet, Elizabeth and Grace, have 13. l. 6 s. 8. d. of such debt as their husbands do ow me: so that their husbands be content that such lands as I have purchased go according to my devise and will, or else not, &c.

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Argument.

The like Quaerie here as before. Where also note, that although he mention a devise of lands by will; yet no such will is either proved or registred, because (probably) null and void in Law. The like whereof may be supposed of Sparcklins will of Thanet, dated in March 1539. in the same book and Registry, quarern 14. where his mansion place at Bronston is said to be bequeathed to his son John: whereas no such thing appeareth by the approved will; nor is any land at all devised by it. The like may be said of Cacherells will of Norborne, dated anno 1537. in the same Registry and book, quatern. 8. where some Legacies in money are charged upon a house there said to be given to the party charged and his wife, whereas no such gift appeareth by the will.

4. In Sarlys will, dated anno 30. Hen. 8. in the same Registry and book, quatern. 11. where he maketh mention of his three daughters, we have this clause:

Item, I will that he (my brother) shall have my part of my house at Wy, called Jancocks, during his life, if that may be suffered by the Law, &c.

5. In the will of William Byx of Linsted, dated 1538. in the same Registry, lib. 22. quatern. 1. occurrs this passage:

I will and bequeath all the profits, commodities, fermes, rents, of all my lands whatsoever, &c. unto my brother germane, Laurence Byx, unto the timos that my sons, Laurence and Nicholas come to the age of 22. years, &c. Also to my daughters marriage 10. l. to be raised out of [Page]those profits, &c. and paid by my brother Laurence. Provided alway, if the Law will not suffer nor admit my brother Laurence to enjoy and take up the fermes, &c. of my lands, then I will that each of my said sons, &c. shall pay the said 10. l. unto my said daughters marriage, &c.

6. Thomas Hunt of Pluckly in his will, dated in the year (no moneth) 1540. (probably some time before the Statute of Wills that year made) in the same Registry, book and quatern▪ gives to his wife the issues of his lands for life, and after her death the lands themselves to his son John, charged with some Legacies in money to his younger brother Anthony and his children: but with this Proviso:

If this my will (saith he) stand not good and effectuall in the Law, then I will that my said messuage and premisses after the death of my said wife shall remain to my said two sons I. and A. and to their heirs for ever, &c.

7. The like clause to this occurrs in the will of John Hubberd of Westerham, dated the 23th of July 1537. in the Bishop of Rochesters Registry: viz.

Also if it do please God to visit my wife and all my children with death, then I will that Richard Hubbard, the son of William Hubbard of Lynsfield shall have my house and all my land, if that the Law will suffer it: paying therefore to every one of my sisters, Agnes, Katherine and Margaret, three pounds six shillings and eight pence, to be paid within the space of two years next after my decease.

8. Nor is this passage lesse pregnant and pertinent to our purpose, taken from the will of John Stace of Leigh, dated the 18th of March 1538. in the same Registry.

And also I will that if the Kings last Act in Parliament[Page]will not stand with my wife to enjoy the one half of my lands, I will then that mine Executour shall pay yearly to Agnes my wife xl. s. during the term of her life, and that to be paid quarterly at the four usual terms by equal portions, &c.

Argument.

In these five last wills mentioned (Sarlys, Byx, Hunt, Hubberd and Staces) what means that doubt and question in the Testators, whether their devises (of houses and lands) were good, or would hold and stand firm in Law, had there been such a Custome, and had not the Law been clear otherwise in this case, as well in Kent as elswhere?

I observe also, that in the interim of 27. and 32. H. 8. some few (and indeed but very few) wills there are in the Registers at Canterbury, wherein lands are devised: some with Feoffment, and some without, at least without mention made of any. As for the former, those with Feoffment, I find the most of them dated, though in or after the year 27. yet before the sixth of May 28. year of that King, until when the Act was not to come in force. Besides, happily the Feoffment was made before the Statute, and so could not be revoked (as I conceive) without the Feoffees consent. As for the rest (those without mention of Feoffees) some of them were of our City (Canterbury) or the like places, where by particular Custome they might devise. Others (happily) had Feoffments, although not mentioned. If not, they were no other (I conceive) than wills de facto, or de bene esse, made: nor did or could otherwise, [Page] or further operate, inure, or take effect than the interessed or concerned parties should give way: with whom in those elder times (times of more and greater regard and reverence to the will of the dead than the present) the dying parent, or kinsmans mind declared in his will, bare so great a sway, and did so much prevail, as to perswade with them to renounce an advantage to themselves, for the fulfilling of the deceaseds solemne and declared mind. Besides, it follows not, that because such wills and devises are found, therefore they passed and were allowed of as good and effectuall: the contrary whereof is more than probable by the ifs and conditions found in other wills of those times, arguing plainly the Testators distrust and doubt of the validity, and consequently of the successe and effect of his devise, whereof examples are laid down before.

Before I close and wind up all, I have onely this to add, by way of offer, from the party opponent to this Custome, and his Councel, (which, as a matter much considerable, I may not pretermit:) that, whereas that abundance of wills wherein lands are devised without mention of Feoffees, found and produced from the Registries both of Canterbury and Rochester, is much insisted on in behalf of the Custome: if from the Registries of any other Diocesse out of Kent, (where such devises never did, nor could obtein, until the Statute of Wills) of equal circuit and extent to either of these, the very same thing may not as truly be observed, and a proportionable number and quantity of such kind of wills, (wills of lands devised without mention of Feoffees) [Page] cannot be produced, and consequently the argument and inference thence drawn (for the Custome) cluded and avoided, they will sit down convinced, and with their adversaries subscribe unto that argument. An offer (this) in my judgement so fair, ingenuous and plausible, as not to be rejected of any, but such as out of a cavilling spirit, are resolved to turn the deaf ear upon all fair and equal proposals: that I say not, such as, for maintenance sake, make it their study, quocunque modo, to maintain their spurious interest. But that I may not seem to be (what indeed I am far from being, any otherwise than in truths behalf) a partisan in this businesse, I shall forbear all further censure, and if I may but have the Readers leave to make my Epilogue, I shall, with thanks to him for that, and the favour of all his other patience, quit the stage of my discourse on this whole argument, and make my Exit.

Many other things offer themselves to his discourse,Perora [...]io. that would treat of Gavelkind to the full; but they are (I take it) mostly points of Common Law, which because they are not only out of my profession, but besides my intention too, which was to handle it chiefly in the historical part, and that no further than might conduce to the discovery of the Primordiae, or beginnings of it, I will not wade or engage any further in the argument, lest I be justly censured of a mind to thrust my sicle into another mans harvest: onely (so a close) craving leave to supply the common KentishA clause wanting in the printed Kentish Custumal supplied. Custumal, at the end of Mr. Lambards Perambulation, with one clause, which, according to an ancient copy registred in a quondam book of St. Augustines Abbey [Page] at Canterbury, now remaining with my very noble and learned friend Sir Roger Twysden, is to come in at pag. 574 lin. 2. after these words: Que de lay est [...]e [...] sans men. viz. (as that old copy gods on there:) E [...]si home ou femme seit feloun de sei mesmes qeil s [...]y mesmes de gre se ocye, le Roy aura les charteuz tuts & ni [...]nt l'an nele wast, mes se heir seit tautost enherite sans contredit, kar tout seit il feloun de sey mesmes, il neyt my atteint de felonye. Et clayment auxi, &c. as it follows in that printed Custumal. Which clause, as I conceive, may be thus Englished: And if a man or woman shall be a Felon of him or her self, who shall kill him or her self of his or her own accord, the King shall have all the Chattels, and not the year and the waste, but the Heir shall immediately inherit without contradiction: for albeit he or she be a Felon of him or her self, he or she is no [...] attainted of Felony.

Now craving pardon for what liberty I have taken to deliver my sence, and give my conjecture, on severall occasions here emergent, I shall here cut the thred of this Discourse, wishing that as I have not spared freely to speak my mind, so that every man that pleaseth, should assume the like liberty, not sus [...]ecting me so opinionate of mine own vote, as to wish, much lesse to beg, least of all to importune any unwilling mans concurrence, though haply unprovided of a better of his own, disclaiming that magisterial boldnesse of him arrogated, that said once upon a like occasion:

—si quid novisti rectius istis

Candidus imperti, si non, his utere mecum.

[Page]And (to wind up all) wish every man, in what he stands in doubt of, to be his own Oedipus.

Da veniam scriptis: quorum non gloria nobis

Ovid. de pont. lib. 3. El. 9.

Causa; sed utilitas, officiumque fuit.

An APPENDIX OF Such Muniments (viz. Charters, and other Escripts) as are quoted in the precedent Discourse, with reference to this place for transcription.

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Charta pervetusta de terrâ ad CensumVide pag. 50. concessâ.

ARnulfus Prior, & tota CongregatioScriptura 1. Ecclesiae Christi, omnibus fidelibus & amicis suis salutem. Sciatis nos, consentiente Archipiscopo This (it seems) was before he granted them liberam dispositionem rerum suarum, wherof in Eadmer. Hist. Novor. pag. 108. Anselmo, concessisse Calvello & heredibus suis extra civitatem circa castellum, novem partes terrae, inter terram arabilem & prata, eâ conventione ut ipse Calvellus & heredes sui singulis annis dent [Page] Celerario lij. sol. pro omni re, praeter tres forisfacturas, id est, murdrum, & furtum,3. Forisfacturae. si ipse Calvellus vel haeredes sui fecerint, & praeter si verecundium ipse sive heredes sui fecerint monachis Ecclesiae vel servientibus eorum. Horum verò denarior. una medietas dabitur in mediâ Quadragesima, & altero in festo S. Michaelis. Calvello autem mortuo, pro redemptione quam heredes facereRedemptio. solent, heredes sui xx. sol. dabunt, & Censum quem pater priùs dederat, ipse deinceps similiter dabunt. Testes horum sunt Folbertus de Cill, Will. Folet, Rogerius filius Herengodi, Robertus de Mala villa.

[Note that this Charter hath a seal appendant on a labell proceeding from the side-margent, round, and about the bignesse of a five shillings peece of silver, the wax yellow, stamped; but on the one side with the form of a Church, much like that in the old seal of St. Augustines, in Sir Henry Spelmans Councells, pag. 122. The inscription in the ring of it this: ✚ SIGILLVM ECCLESIAE CRISTI.]

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Charta Prioris consimilis.

Wibertus Prior & Conventus EcclesiaeScriptura 2. Vide pag. 50. Christi Cantuar. omnibus fidelibus suis, tam praesentibus quam futuris Salutem. Sciatis nos concessisse Goldwardo filio Feringi terram quae fuit Walteri de Sartrino servientis nostri, Mariae filiae Richardi aurifabri, simul cum propria terra sua in qua Feringus pater suus manebat, pro iiij. s. & iiij. d. & ob. quos nobis inde annuatim reddet ad duos terminos, ij. scil. solid. & iiij. denar. & ob. ad med. Quadrages. & ij. s. ad festum S. Michaelis. Tenebit itaque praedictus Goldwardus de nobis has terras bene & in pace & honorificè jure hereditario per suprascriptum censum, & licebit ei de ipsis tanquam de propriis liberè facere quod voluerit, salvo jure & redditu nostro. Ita tamen quod si eas alicui dare voluerit vel vendere, nobis prius hoc indicabit, & nos ad emendum eas Simile habes in LL. Bu ger. apud Scatob. c. 100▪ proximiores esse debemus. Terra illa jacet juxta murum [Page] Eleëmosynariae nostrae. Testibus Bartholomaeo Dapifero, Willmo Camerario, Geldewino & Johanne, Cocis; & multis aliis.

Alia Charta de terrâ ad Gablum concessâ.

Robertus Monachus Ecclesiae S. Augustini, Scriptura 3. Vide pag. 50. Custos & Procurator Hospitalis beati Laurentii, Omnibus Christi fidelibus Salutem. Sciatis me concessisse Hamoni textori & heredibus suis duas acras terrae contra Sanctum Sepulchrum, pro duob. solidis de Gablo, singulis annis, jure hereditario tenendas. Medietatem autem dabit in media Quadragesimae, & medietatem alteram in ad Vincula S. Petri, & tres gallinas in vigilia Natalis Domini. Valeat. Testibus Alurico presbytero, Lidulfo, Willmo textore, & fratribus illius loci.

Charta de terrâ ad Gavelikendam concessâ.

Sciant praesentes et futuri quod ego R.Scriptura 4. Vide pag. 38. & 55. [Page] Dei gratiâ S. Augustini Cantuar. et ejusdem loci Conventus dedimus Jordano de Serres et heredibus suis ad Gavelikendam, Gavelikend. xl. acras de marisco nostro pertinente ad manerium nostrum de Cistelet, cum pertinentiis suis, Tenend. de nobis jure hereditario in perpetuum. Reddendo inde nobis annuatim vij. solid. et vj. denarios sterlingorum ad Curiam de Cistelet, in duobus terminis anni, in Nativitate Domini iij. s. et ix. d. et in Nativitate Johan. Baptistae iij. s. et ix. d. Et pro hac concessione dedit nobis praedictus Jordanus C. s. sterling. de Gersume. Ʋt igitur ista donatio stabilis et firma permaneat sigilli nostri munimine eam roboravimus. Hiis testibus Henrico de Cobbeham, Galfrido de Stokes, Stephano de Marisco, Philippo de Fierport, Godefrido del Hac, Bricio del Hac, Waltero filio Roberti, Gileberto fratre Abbatis, Willmo Pincerna, Wido Janitore, W. Coco, Alex. Hostiario, et multis aliis.

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Apographum processus litis inter Burgam de Bending, & Priorem & Conventum Ecclesiae Cantuar.

De toto manerio de Welles coram W. deScriptura 5. Vide pag. 51. Ebor, R. de Turkeby, G. de Preston, & sociis suis itinerantibus apud Cantuar. 3. Id. Junij, Anno Domini 1241. R. H. filii R. Johannis 25.

Burga quae fuit uxor Petri de Bendings petit versus Priorem S. Trinitatis Cantuar. medietatem manerii de Welles sicut Francum Francus Bancus. Bancum suum, ad faciendum firmam xviij. dierum, et unde praedictus Petrus quondam vir suus eam dotavit, &c. Et Prior, scil. Rogerus de Lee venit et dicit, quod habet manerium illud ex dono praededecessorum Domini Regis, qui illud manerium aliquando tenuerunt. Et quod illud manerium dederunt Deo et ecclesiae S. Trinitatis adeo liberè sicut manerium illud tenuerunt in puram ac perpetuam eleëmosynam: ita quod illud manerium nunquam [Page] postea partitum fuit, nec est partibile. Et dicit quod Dominus Rex qui manerium ill [...]d dedit praedecessoribus suis, non tenuit illud nomine Gavelkinde. Et è contra Burga Gavelkinde. dicit, quod praedictum manerium est Gavelkinde, et partibile, ita quod quidam Robertus de Valoignes, Dominus de Sutton, qui duxerat in uxorem Matildam de Welles, cujus hereditas illud manerium fuit post mortem illius Matildis, habuit nomine Franci Banci, medietatem illius manerii, et Petrus vir illius Burgae habuit medietatem illam ex dono Hervei Bellet consanguinei ipsius Burgae, postquam idem Petrus desponsavit ipsam Burgam, qui quidem Herveus redemit medietatem illam per denarios suos de praedicto Roberto, ad opus ipsius Petri ac Burgae. Et quod ita sit offert Domino Regi xx. s. per sic quod inquiratur per patriam. Et Prior dicit quod praedictum manerium non est Gaulikend, neque partibile, nec praedictus Robertus unquam habuit ibidem medietatem praedicti manerii ut de Franco Banco suo. Et quod ita sit ponit se super patriam. Et ideo fuit inde, &c. Juratores [Page] viz. R. de Setvann, I. de Esting, S.Juracores. de Creie, G. de Dene, W. de Okrindenn, A. Perot, E. de Bocton, S. de Haute, B. de Badlesinere, R. de Chilham, et Alanus de Leghes, Vered [...]ctum. dicunt super sacramentum suum, quod praedictum manerium fuit quondam manerium Domini Regis. Et quod datum fuit Deo et Ecclesiae S. Trinitatis in liberam, puram et perpetnam eleëmosynam. Ita quod manerium illud nunquam fuit Gaulikende, nec partitum, nec est partibile, nec praedictus Robertus nunquam habuit medietatem praedicti manerii nomine Franci Banci. Set dicunt quod post mortem praedictae Matildis, tenuit praedictus Robertus totum manerium illud simul cum custodiâ praedicti Petri. Ita quod praedictus Herveus dedit quandam summam pecuniae praedicto Roberto pro custodiâJudicium. illâ. Et ideo consideratum est, &c. quod Prior teneat, &c. & sine die, & praedicta Burga in misericordia.

Carta de terrâ ad Gavelikende concessâ.

Alanus Prior et Conventus ecclesiae ChristiScriptura 6. Vide pag. 38. & 55. [Page] Cantuar. Omnibus Christi fidelibus ad quos literae istae pervenerint Salutem. Volumus ad omnium noticiam pervenire quod nos concessimus & assignavimus Theb. de Einesford & heredibus suis quater vigin [...] acras de Dominio nostro in Northocholt, tenendas de nobis ad Gavelikende. ReddendoGavelikende. inde nobis xx. s. singulis annis, x. in med. Quadrag. & x. ad festum S. Michaelis. Hanc tamen hac conditione ei tenebimus si mansionim & domos suas super praedictam terram fecerit. Debet insuper tam ipse quam heredes sui sequi curiam nostram de Orpinton sicut ceteri homines de eadem villâ.

Charta pirori consimilis.

Alanus Prior et Convenius ecclesiae ChristiSc [...]iptura 7. Vide pag. 38. & 55. Cantuar. Omnibus Christi fidelibus Salutem. Sciatis quod nos concessimus & assignavimus Stephano de Renardintone C. acras de marisco nostro inter wallas Monachorum Pontis Roberti, et Oxeniam, ita quoddebet habere illas C. acras post alias C. acras [Page] quas in eodèm marisco dimisimus Stephano militi de S. Martino, usque ad C. illas acras quas dimisimus Solomoni de Ges [...]ings. Concessimus [...]utem has praedictas C. acras eidem Stephano de Renardintone & heredibus suis ad Gavelichinde. Reddendo inde nobis duasGavelichende. marcas argenti singulis annis, ad duos, viz. terminos, infra octavas Nativitatis S. Johannis Baptistae unam marcam, infra octavas S. Michaelis alteram marcam, pro omni servitio, nisi quod debet wallare secundum quantitatem illius terrae intus & extra, tam contra salsam quàm contra frescam, sicut ceteri, et Curiam nostram sequi. Jura etiam Cantuarien. ecclesiae, et in hoc et in aliis, quantum ipse potest cum ratione tueri et defendere. Haec autem omnia sacramento corporaliter in capitulo nostro praestito juravit se fideliter observaturum. Hiis testibus Godefrido coco, Stephano portario, Bartholomaeo seneschallo, Willmo de Capes, Roberto Porter, et multis aliis.

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Alia Charta consimilis.

Omnibus ad quos praesens charta perveneritScriptura 8. Vide pag. 38. & 55. Gaufridus Prior & Conventus ecclesiae Christi Cantuar. Salutem. Noverit universitas vestra nos concessisse Joni & heredibus suis Berchariam nostram ducentarum ovium, scil. medietatem de Osmundeseye in terra & marisco cum una salina, Tenend. de nobis successivè ad Gavelykende it a plenèGavelykende. & integrè sicut eam unquam Rogerus de Osmundeseye tenuit. Reddendo inde nobis annuatim lvj. s. de redditu ad duos terminos, scil. ad festum S. Johannis Baptistae xxviij. s. & ad festum S. Michaelis similiter viginti octo. Post mortem verò praedicti Jonis dabunt nobis heredes sui successivè de Relevio lvj. s. Dabunt etiam idem J. &Relevium. heredes sui post ipsum nobis annuatim ad Natale Domini unum Mathlardum, et unam Annat [...]m, & quatuor cercellas, & ad Pascha unum caseum, & unum agnum de Present. Present. Super hoc sciendum, quod praedictus J. et heredes sui Curiam nostram de Leysdun [Page] sequentur, & in auxiliis dandis & Scottis sicut alii Tenentes nostri scottabunt. Et inde ipse & heredes sui successivè salvos plegios invenient de redditu terminis statutis reddendo, & de Berchariae instanratione integrè & fideliter conservanda.

Alia consimilis Charta Hospitali data.

Sciant presentes & futuri, quod egoScriptura 9 Vide pag 38. & 55. Radulfus Frone tradidi & concessi Deo & fratribus Hospitalis S. Laurentii juxta Cantuariam, in orientali parte siti, septem acras terrae meae tenendas in Gavelekende deGavelekende. me & heredibus meis liberè & quietè. Reddendo inde annuatim mihi vel heredibus meis xlij. denarios, pro omni servitio, & omni exactione in duobus terminis, scil. in med. Quadragesimâ xxj. denar. & in festo▪ S. Michaelis xxj. denar. Praedicta autem terra nominata est Prestesteghe, quae adjacet terrae Heliae de Blen. Pro hac donatione & confirmatione dederunt mihi praedicti fratres & heredibus meis quinque marcas sterlingorum. His testibus Johanne clerico, [Page] filio Henrici Sacerdotis, &c. & pluribus de Halymot.

Inquisitio de terris & tenementis quae Isabella de Monte alto tenuit de Priore ecclesiae Christi Cantuariae.

Inquisitio facta apud Hokynden coramScriptura 10. Vide pag 58. Eschaetore Domini Regis die Mercurii prox▪ ante festum S. Catherinae virginis, anno R. R. Edwardi secundo, de terris & tenementis quae Isabella de monte alto tenuit de Priore Ecclesiae Christi Cantuariae, & per quod servitiū, per sacramentū Willmi de Cokeler, &c. qui dicūt per sacramentū suū, quod praedicta Isabella tenuit in Gavelikende dieGavelikende. quo obiit de praedicto Priore unū messuagiū xlij. acras terrae cum pertinentiis in Hokinden, per servitium decem solid. undecim denarior. per annum, & per servitium arandi unam acram terrae ad seminandum frumentum, quod valet xij. d. per annum. Et per servitium metendi praedictam acram & cariandi in Grangiam Prioris apud Orpinton [Page] blada ejusdem acrae, quod servitium extendit per annum ad xij. d. Et per servitium arandi dimidiam acram terrae ad seminandum frumentum, et dimidiam acram terrae ad seminandum ordeum, et utramque dimidiam acram metendi et ligandi, quod quidem servitium extendit per annum ad ij. s. Et per servitium solvendi unam denar. et obulum ad falcandum pratum Domini Prioris, & per servitium curiandi unam carectatam & dimidiam feni in Grangiam Prioris apud Orpinton, & valet per annum iij. denar. Et per per servitium faciendi duo averagia de Orpinton usque Mepham per annum, & valet opus viij. denar. Et per servitium claudendi tres peticatas circa Gardinum Prioris praedicti apud Orpinton, & valet opus iij. d. per annum. Et per servitium duarum gallinarum & xl. ovorum, et valet per annum vj. d. pretium gallinae ij. d. Et per servitium faciendi sectam ad curiam praedicti Prioris de Orpinton, de tribus septimanis in tres septimanas. Et dicunt quod praedicta Isabella obiit per tres annos [Page] elapsos, et quod areragia à tempore mortis praedictae Isabellae usque in hodiernum diem sunt l. s. j. d. ob.

Summa totius per annum— | xvj. s.— | viij. d. | —ob.
Unde de redditu [...]ssis.— | x. s.— | xj. d. | —
De Consuetudinibus— | v. s.— | ix.— | —ob.

Servitia Tenentium de Rokinge ad redditum posita.

Memorand. quod in festo S. Michaelis, Scriptura 1 [...]. Vide pag. 60. anno Dni Mcclxxxix. regni verò Regis Edwardi xvij. Prior et Conventus ecclesiae Christi Cantuar. relaxaverunt Tenentibus suis de Rokinge, viz. falcationem, levationem, cariagium, et tassationem prati. Item cariagium, impletionem & sparsionem fimorum, facturam cratis, & Burghyard. ItemBurghyard. averagia apud Merseham. Item fotaveagia. Item messionem & herciaturam & collectionem stipularum. Item cooperturam grangiarum, & tonsionem ovium. Et pro ista relaxatione, praedicti Tenentes solvent annuatim ad manerium praedict. in festo omnium Sanctorum, & ad Purificationem beatae Mariae [Page] redditus subscriptos pro equali portione viz. Robertus le Frode de xij. acris & dimid. iiij. s. ij. d. ob. Timberdansland pro viginti sex acris iiij. s. ij. d. ob. Terra Heymund pro novem acris iij. s. ij. d. Terra Juliani pro viginti acris iiij. s. j. d. ob. Stameresland pro undecim acris ij. s. viij. d. Terra Smalspon pro tresdecim acris ij. s. iiij. d. Terra le Bred pro octo acris & dimid. xvj. d. &c.

Relaxatio servitiorum & consuetudinum Tenentium de Mepham, pro annuo redditu solvendo.

Ʋniversis pateat per praesentes quod in [...]iptura 12. [...]e pag. 6 [...]. festo Nativitatis Domini, Anno ejusdem Mcccvj. Regni verò Regis Edwardi filii Regis Henrici xxxv. Henricus Prior et Capitulum ecclesiae Christi Cantuar. remiserunt et relaxaverunt hominibus et tenentibus suis de Mepham quasdam consuetudines el servitia pro annuo redditu quinquaginta septem solidor. trium denarior. et unius oboli [...]isdem Priori et Capitulo in praedicto manerio [Page] suo de Mepham in festo Apostolorum Petri et Pauli annuatim solvend. in formà subscriptà, viz. Tenentes de Gavellond deGavellond. octodecim Jugis, pro cariagio triginta et sex carectat. feni de prato de Redhamme apud Clyve usque Mepham, quindecim solidos, viz. pro qualibet carectat. quinque denarios. Et unum dimidium jugum est in Dominico. Item pro averagiis tresdecim solid. & quatuor denar. Item pro clausura circa blada duos solidos, undecim denar. & obulum. Item pro clausura circa Curiam quae dicitur Burghyard. viginti duos denar. obulumBurghyard. & quadr. Item Tenentes de sex Jugis & dimid. de Inland pro trituratione & ventilationeInland. triginta & quinque quarteriorum frumenti, novem solid. quinquc denar. obolum & quadr. viz. pro trituratione cujuslibet summae tres denar. & pro ventilatione unum quadr. Item pro trituratione & ventilatione septemdecim grossarum summarum et dimid avenae, tres solid. tres denar. & unum quadr. viz. pro trituratione cujuslibet summae duos denar. et pro ventilatione unum quadran. Item pro opere sarclandi [Page] octodecim denar. Item pro opere tassandi in autumpno tresdecim denar. Item pro fimis spargendis sex denar. et obolum. Item pro xviij. f. Cl [...]yis, vel Claiis. Vid. Spelm. Glossar. in voce. Worderinde. Cladibus faciendis ad Ovile sex denar. Item pro cibo Prioris querend. et pro servitio quod dicitur Worderinde, et pro pomis frangendis duodecim denar. Item pro clausura circa blada, quae dicitur Swinhey, Swinhey. duos solidos, decem denar. et quadr. Item pro clausura xvj. perticarum et quinque pedum muri infra Curiam ab ostio Aulae versus Portam Curiae xvj. denar. et obol. Item pro grangia cooperienda duos solid. et sex denar. In quorum omnium testimonium, sigillum commune praedictorum Prioris et Capituli, et sigilla Walteri de Northwode, Johannis de Isebergh, Johannis de Halifeld, Henrici de Mildenacre, Petri de Mildenacre, et Johannis de Prestwode, pro se et omnibus aliis Tenentibus de Gavellond, ad requisitionem ipsorum: et Johannis de Pettesfeld, Johannis de la Dene Capellani, Henrici de Lomere, Alfredi de Northwode, Henrici de Northwode, et Walteri Ive, pro se et omnibus aliis Tenentibus de Inland, ad requisitionem eorundem, [Page] huic scripto cirographato alternatim sunt appensa. Acta sunt haec anno supradicto.

Breve Regis (Wmi jmi) pro terris monasterii S. Augustini Cant. alienatis recuperandis.

Willmus Dei gratiâ Rex Angliae, Lanfranco Scriptura 13. Vide pag. 68. Archiepisco Cantuar. &c. Salutem. Mando & praecipio ut faciatis S. Augustinum & Abbatem Scotlandum reseisire burgum de Fordwich, quem tenet Haymo vicecomes, omnesque alias terras quas Abbas Egelsinus fugitivus, mentis lenitate, vel timore, vel cupiditate alicui dedit vel habere concessit. Et si aliquis, &c.

Charta W. Regis jmi de restitutione ablatorum in Episcopatibus & Abbatiis totius Angliae.

W. Dei gratiâ Rex Anglorum, L. ArchiepiscopoScriptura 14. Vide pag. 68. Cantuar. & G. Episcopo Constantiarum, & R. Comiti de Ou, & R. filio [Page] Comitis Gil. & H. de monte forti, suisque aliis proceribus regni Angliae, Salutem. Summonete Vicecomites meos ex meo praecepto, & ex parte mea eis dicite, ut reddant Episcopatibus meis, & Abbatiis totum Dominium, omnesque dominicas terras quas de Dominio Episcopatuum meorum & Abbatiarum, Episcopi mei & Abbates cis vel lenitate, vel timore, vel cupiditate dederunt, vel habere consenserunt, vel ipsi violentiâ suâ inde abstraxerunt, et quod hactenus injustè possederunt de Dominio ecclesiârum mearum. Et nisi reddiderint, sicut GOS ex parte mea summonebitis, vos ipsos velint nolint constringite reddere. Quod si quilibet alius, vel aliquis vestrum quibus hanc justitiam imposui, ejusdem querelae fuerit, reddat similiter quod de Dominio Esicopatuum vel Abbatiarum mearum habuit, ne propter illud quod inde aliquis vestrum habebit minus exerceat super meos Vicecomites vel alios quicunque teneant dominium ecclesiarum mearum f. quàm. quod praecipio.

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Breve Regis in subsidium Villanorum Abbatis S. Augustini Cantuar. se gravari querentium in taxatione 10mae & 15mae.

Edwardus Dei gratiâ Rex Angliae, DominusScriptura 15. Vide pag 73. Hiberniae, & Dux Aquitaniae, Taxatoribus Decimae & Quintaedecimae in Comitatu Cantiae, Salutem. Ex parte dilecti nobis in Christo Abbatis S. Augustini Cantuar. nobis est ostensum, quod vos omnia bona & catalla Villanorum ipsius Abbatis in Comitatu praedicto, non deductis redditibus, servitiis & custumis quae iidem Villani praefato Abbati reddunt & solvunt annuatim, quae quidem redditus, servitia & custumae inter temporalia ipsius Abbatis spiritualibus suis annexa ad decimam sunt taxata, et inde idem Abbas decimam solvit, taxastis, et decimam & quintamdecimam praedictas inde levare intenditis ad opus nostrum, in ipsius Abbatis et Villanorum suorum praedictorum praejudicium et gravamen: Nos nolentes praedictum Abbatem, pro eo quod ipse de temporalibus spiritualibus suis annexis [Page] decimam solvit in hac parte indebitè prae gravari, vobis mandamus, quod deductis redditibus, servitiis, et custumis Villanorum praedictorum, quae inter temporalia praedicti. Abbatis spiritualibus annexa ad decimam sic taxantur, et de quibus idem Abbas decimam solvit, sicut praedictum est, residua bona et catalla eorundem Villanorum taxari, et dictas decimam et qnintamdecimam inde ad opus nostrum levari faciatis, prout aliàs in hujusmodi taxationibus fieri consuevit. Et▪ si quid per vos à praefatis Villanis indebi [...]è levatum fuerit, id sine dilatione restitui faciatis eisdem. Teste meipso apud Pontefractum primo die Martii, anni regni nostri septimo.

Charta de Homagio facto pro terrâ de Gavelkind, sicut de Villenagio.

Sciant omnes tam posteri quam praesentesScriptura 16. Vidē pag 73. quod Wmus filius Wmi de Elmton, & Radulfus frater suus diviserunt hereditatem suam de duabus villis Burne et Wilrintune, sicut de Gavelikende in Curia S. Augustini, [Page] in praesentiâ Domini Rogeri electi ejusdem ecclesiae & plurimorum Monachorum & Laicorum: & Radulfus relevavit in eadem Curia partem suam. Ipse verò Radulfus de medietate istarum duarum villarum fecit homagium Abbati sicut de Villenagio, & reddet de Burne gablum quinquaginta solid. quatuor terminis anni, dominicâ viz. Palmar. xxij. s. vj. d. in Nativitate S. Johannis tantundem, ad festum S. Michaelis tantundem, ad festum S. Thomae ante Nativitatem Domini tantundem, & tantundem servitii quantum ad idem Villenagium pertinet, faciet. Similiter de medietate de Wilrinton, idem Radulfus alios quinquaginta solidos, eodem modo, et eisdem terminis reddet cum servitio. Ego autem R. Dei gratiá electus beati Augustini Cantuariensis ejusdemque loci conventus, hanc partem suae hereditatis praesenti chartâ et sigillo ecclesiae nostrae eidem Radulfo confirmavimus. Hiis testibus quorum nomina subscripta sunt, Willmo filio Nigelli, Elya de Silingheld, Radulfo de S. Leodegario, Radulfo de Creye, Eylgaro de Esture, Hugone Cosin, Stephano [Page] de Renardinton, Alano de Reading, Daniele de Wyvelesberhe, Hamone de Solforde, Hamone de Aldelose, Alano de Legh, Rogero de Wadenhale, et pluribus aliis.

Chirographum pervetustum de Nuptiis contrahendis, & Dote constit [...]en [...]â.

Here appeareth in this writing the agreement thatScriptura 17. Vide pag. 76. [...] Godwine made with Byrhtric when he his daughter [...] wooed, that is first that he gives her one pounds [...] weight of gold Conditionally (and upon this consideration) that she accept of his speech, i. e. consent to the agreement, or contract here made, and on these terms will become his wife. so as she his agreement received, [...] & he giveth her those lands at Strete with [...] all that thereto apperteineth, & in Burwaremersh [...] one hundred and fifty acres, and withall. thereto thirty [...] oxen, & twenty cowes, & ten horses, & ten bondmen. [...] This was agreed. spoken at Kingstone before Cnute [...] king▪ in Living the Archbishops presence. witnesse, & in [...] the Covents at Christ-church, & Aelfmeres (the) Abbats, [...] and the Covents at S. Augustine, and Aethelwines [...] (the) Sheriffe, and Siredes th'elder, and Godwines [...] [Page] Wulfeyes sonne, and Aelfsy child, and Eadmer [...] at Burham, and Godwine Wulfstanes sonne, and [...] Charles the kings Minister. knight, and when men that maiden [...] fetchd to Brightling, then went of all this for surety. in [...] pledge Ael [...]gar Syredes sonne, and Frerth priest of [...] Folestone and of Dover Leofwine priest, and [...] Wulfsy priest, and Eadred Eadelmes sonne, and [...] Leofwine Waerelmes sonne, and Cenwold rust, and [...] Leofwine Godwines sonne at Horton, and Leofwine [...] the red, and Godwine Eadgi [...]es sonne, and Leofsuh [...] his brother. And which soever of them longest liveth [...] seixe. take all inheritances. possessions aswell that land that [...] I to them give as every thing. This thing is knowne [...] of each, o [...] every. to all doughty. valiant men in Kent, & in Sussex of Thanes [...] and of Churles, and this writing is tripartite. three-fold, [...] one is at Christ church, a second▪ another at S. Augustine, [...], the third hath Byrhtric himself. [...].

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Testamentum Ethelstani Etheling, filii regis Ethelredi, quo (inter alia) contulit Ecclesiae Christi Cantuariae, manerium de Holingburne, anno Christi 1015.

In God Almighties name I Ethelstan Prince [...] make knowne in this writing how I my substance & [...] my possessions given have for Gods glory. love & [...] my soules redemption, & my father Ethelredes [...] king that I it of obteined. earned, that is first that I [...] consent that man set at liberty. set free every forfeited pledge. surety [...] Fortè mancipia. Vide Dictionar. nosti. in voce [...]. Spelm. Glossar. verb. Domesticus, pag. 222. col. 2. Item Concil. p. 403 & Ma [...]t. Patis. Add [...] [...]am. p. 243. that I by contract. promise poss [...]ss [...]. ought. And I give in [...] with me where I me rest to Christ & S. Peter those [...] lands at Eadburghbery which I bought of my father [...] for. with two hundred marks of gold by weight, [...], & for. with five pounds of silver, & that land at Meralefan [...] which I bought of my father for. with two [...] hundred marks and a halfe of gold by weight, & that [...] land at Mordune which my father me to let I give into [...] [Page] that place for our both soules, & I him this pray [...] for Gods love & for S. Mary & for S. Peters that it [...] stand mought, & that sword with silver hilt that [...] Wolfriht made, & that gilt pouch, & that bracelet [...] which Wolfrihc made, & that drink-horne that I [...] ere of that Covent bought at Ealdminster. And I [...] will that men take that money which Athelwolds [...] widow me ought to yeild. pay which I for her ere [...] paid have, & dispose it Elfsy bishop to Ealdminster [...] for my soule, that is twelve pounds numbred▪ by [...] tale. And I give to Christ-church in Canterbury [...] those lands at Holingbourne and those which thereto [...] appertaine, except that one plough-land that I to Siferth [...] given have. And those lands at Garwaldintune, [...] & I give those lands at Ritherfelde to the nuns [...] minster of Saint Mary freely▪ gratis, & one silver [...] great piece of five pounds, & to New-minster one [...] [Page] silver basin of five pounds in that holy Trinities [...] name that the place is dedicated to. And I give to [...] Shaftesbury to that holy C [...]ucifix. rood & to Saint Edward [...] those vi. pounds which I to Edmund my brothr [...] made. known. committed have. And I give to my father Ethelred [...] King those lands at Cealtune saving. except those [...] eight hides which I to Aelmer my Minister given [...] have. And those lands at Northtone, & those lands [...] at Mulinton, & those silver hilted swords which [...] Wlkytel possesseth, & that brigandine that with Morkere [...] is, & those horses that Thurbrand me gave, & [...] those white horses which Liefwine me gave. And I [...] give to Eadmund my brother those swords which [...] Offa King enjoyed. And those swords with the hollow [...] hilt, & one javelin, and one silver tipped. hemmed [...] war-trumpet, and that land which I possesse in Eastangle. [...] And those lands at Peakesdale. And I will [...] [Page] that men deliver every yeare one dayes victual. ferme to the [...] covent at Ely of this land on S. Etheldriths masseday [...] & give likewise to the minster one hundred [...] pence. & feed there on that day an hundred [...] needy. poore. Be ever this almes delivered yearly, possesse, i. e. whosoever owes the land. ow [...] the land he that possesseth. oweth, whilest Christendom standeth. [...] And if he will not that almes performe who [...] that land hath, go that land to S. Etheldrith. And [...] I give to Eadrith my brother one silver hilted sword. [...]. And I give to Elfsy bishop one gilt Crucifix. crosse which [...] is with Eadrith Syfleds son, & one black stede. And [...] I give to Elmer those lands at Hamelden which he [...] sometime. ere had. And I pray my father for God Almighties [...] love & for mine that he that confirm. give which I [...] to him given have. And I give to Godwine Wlnothes [...] sonne those lands at Cunitune which his father sometime. ere [...] possessed. And I give to Elfsith my nurse. foster-mother [...] [Page] for her great deserving those lands at Westune [...] which I bought of my father for. with three hundred [...] marks lacking a half of gold by weight. And I give [...] to Elfwine my masse-priest those lands at Horelvestune [...] & those swords which Wyther enjoyed. And [...] my horse with my furniture. And I give to Eylmere [...] my i. Sewer, forte. dish thane those eight hides at Cateringetune, [...] & one diverse-coloured stede & those sharpe [...] Fortè, a Cutlash. swords & my target. And I give to Syferth those [...] lands at High-cliffe & one sword & one horse & [...] my bowed shield. And I give to Ethelferrh Stameren [...] & Lyving those lands at Tywynge. And I give [...] to Liefstane Liefwines brother what of that landestate [...] which I from. of his brother took. And I give [...] to Lyemare at Bygrove those lands which I him sometime. ere [...] from took. And I give to Godwine Drevelen those [...] three hides of land at Little Gareshale. And I give [...] [Page] to Edrith Wynfelds sonne that sword is marked with a hand. which the [...] hand is on marked. And I give to Elfwine my [...] minister that sword which he to me sometime sold. sometime gave. [...]. And I give to Elfnoth my sword white, & to my [...] Huntsman that stede which is at Colingeregge. And [...] tender men of my gold to Elurith at Berton & to [...] Godwine Drevelen so much as Eadmund my brother [...] knowes that I to them of right to yeild ought. [...]. Now thank I my father with all humility in God [...] Almighties name for that answer which (he) to me sent [...] on Friday after midsummers masse-day by Elfgare [...] Elfstanes son, which was that he to me signified by [...] a message from my father. my fathers message that I might by Gods permission [...] & by his give my lands & my substance. possessions as [...] to me most expedeient seemed, i. e. Either to divine or secular uses. either for God & [...] for the world. And of this answer is to witnesse [...] Eadmund my brother & Elfsy bishop, & Byrhtmer [...] [Page] Abbat & Eilmer Eluriches sonne. Now pray I all the [...] wise men which my testament. will shall hear read either [...] Clerks. Clergie & Laics. Laity, that they be of assistance that [...] my testament. will stand may, sith my father giveth leave [...] for my testaments wills standing. Now declare I that all [...] those things which I to God unto Gods church & [...] Gods servants given have be don for my deer [...] fathers soule Ethelred King & for mine & Elfrith [...] my grand-mother that me fedd, & for all theirs that [...] me to this estates. goods helped. And he that this [...] testament. will through any thing breaketh let him give an accompt [...] thereof to God Almighty, & to Saint Mary, [...], & to Saint Peter, & to all those which Gods name [...] do laud. [...].

[Page]

Charta Libertatum Ecclesiae Christi Cantuar. concessar. per Regem Henricum primum.

H. Dei gratiâ Rex Anglorum, Episcopis,Scriptura 19. Vide pag. 123. Comitibus, Proceribus, Vicecomitibus, caeterisque suis fidelibus Francis et Anglis in omnibus Comitatibus in quibus Achiepiscopus Randulfus & monachi ecclesiae Christi Cantuariae terras habent amicubiliter Salutem. Notum vobis facio me concessisse eis omnes terras quas tempore Regis Eadwardi cognati mei, & tempore Willielmi patris mei habuerunt & Saca & So [...]ne on Strande & Streame, on Wode & Felde, Tolnes & Teames, & Grithbreces, & Hamso [...]ne, & Forestealles, & Infangenes thioves, & Flemen feormthe super suos homines infra burgos & extra in tantum & tam pleniter sicut proprii ministri mei exquirere debent. Et etiam super tot Thegenes quot eis concessit pater meus. EtThegenes. nolo ut aliquis hominum se intromittat nisi ipsi & ministri eorum, quibus ipsi committere voluerint, nec Francus nec Anglus: [Page] propterea quia ego concessi Christo has consuetudines pro redemptione animae meae, sicut Rex Eadwardus & pater meus antehac fecerunt. Et nolo pati ut aliquis eas infringat, si non vult perdere amicitiam mea [...] Deus vos custodiat.

Thus Englished in the same Charter.

[...] [] This answers not to the Latine; that, quot eis concessit pater meus; this, as I to them have granted.

[Page]

Charta consimilium libertatum Ecclesiae S. Augustini▪ Cantuar. concessarum per S. Edwardum Regem.

Ego Edwardus Dei gratiâ Rex Anglorum, Scriptura 20. Vide pag. 112. & 123. Eadsino Archiepiscopo, et Godwino Comiti, & omnibus suis Baronibus Canciae, Salutem. Sciatis me dedisse Deo & S. Augustino & fratribus ut habeant eorum Saca & Socna, et pacis fracturam, et pugnam in domo factam, et viae assaltus, et latrones in terra sua captos, latronumque susceptionem vel pastionem, super illorum proprios homines infra Civitatem et extra, theloniumque suum in terra et in aqua, atque consuetudinem quae dicitur Teames. Et super omnes Allodiarios suos quos eis habeo datos. NecAllodia [...]ii. volo consentire ut aliquis in aliqua re de his se intromittat, nisi eorum praepositi quibus ipsi hoc commendaverint, quia habeo has consuetudines Deo datas et S. Augustino pro redemptione animae meae ita pleniter et liberè sicut meliùs habuerunt tempore praedecessoris mei Knuti Regis, et nolo consentire [Page] ut aliquis haec infringat, sicut meam amicitiam vult habere.

Epistola Gaufridi Supprioris & Monachor. Ecclesiae Cantuariensis ad Regem Henricum 2. de lite inter eos & Baldvinum Archiepisc.

Excellentissimo Domino suo H. Dei gratiâScriptura 21. Vide pag. 67. & 101. Anglorum Regi G. Supprior & Conventus ecclesiae Christi Cantuar. flebilis & ultra modum afflictus Salutem & suspiria flentium & afflictorum respicere. Cum scriptum sit, Gloria in excelsis Deo, & in terra pax hominibus bonae voluntatis: ut pro bona voluntate in terris habita, gloriam habeatis in coelis, Serenitati vestrae quem in nullo offendisse credimus vel recognoscimus, supplicamus, ut si quid odii aut rancoris concepistis adversus nos aut ecclesiam Cantuar. odio personae alicujus aut operis praesentes temporis vel praeteriti, quod nos debeat respicere, pietatis intuitu remittatis, attendentes innocentiam nostram, nec vindicantes aliorum peccata in nobis. Si peccavimus [Page] publicè, puniamur, sin autem, quòd ecclesia Cant. de quâ omnes Anglorum Reges, [...] Can [...] dig [...] non solùm fidem Christi, sed & coronam Regni sumpserunt, qu [...] usque modò libera extitit, captivatur & con [...]ulcatur ab hominibus, cum sit mater omnium in regno Angliae manentium. In Christo Jesu vobis dicimus, timemur ne novitates multae & malae subitò oriantur, quarum principia etsi nos sensimus, forsitan exitus alios quàm nos tanget nec transire permittet immunes, sed involvet. Qui hanc novitatem non admiretur, quod Dominus Archiepiscopus dicit nos debere de eo terras & possessiones nostras tenere? cum jam per quingentos annos & eo ampliùs, à tempore scil. magni Theodori, Nota. qui terras partitus est, & utrique parti suam portionem assignavit, Conventus in pace possederit portionem suam, & liberè administraverit, quod & chartae Regum & Pontificum plenius attestantur, ex quarum tenore perspicuum videre est, quod usque ad haec infoelicitatis tempora, Archiepiscopus nihil juris vel dominationis plus habebat in terris Monachorum, quàm Monachi in terrâ [Page] Archiepiscopi. Et ne super hoc quisquam dubitet, proferantur in medium charta S. Aedwardi Regis & Sancti Anselmi Achiepiscopi, & aliae multae Regum & Pontificum. Quod autem dicitur Lanfrancum dividisse terras, ideo est, quod cum Normanni, captâ Angliâ, omnium ecclesiarum terras occupassent, Rex Will. ad instantiam Lanfranci, eas resignavit. Lanfrancum verò singulis ecclesiis reddidit quod antea possederant, sibi autem quod ante cessorum fuerat suorum retinuit. Quod autem tempore Lanfranci non sit facta terrae divisio, testantur chirographia ante tempora beati Dunstani facta inter Archiepiscopos & Monachos de concambiis terrarum multarum: sed & hoc attestantur scripta vetustissima quae linguâ Anglorum, Landbokes, id est, terrarum libros,Landbokes. vocant. Quia vero non erant adhuc tempore Regis Willielmi milites in Anglia, sed Threnges, praecepit Rex, ut de eis milit [...]sTh [...]eng [...]s. fierent ad terram defendendam. Fecit autem▪ Lanfrancus Threngos suos milites: Monachi verò non fecerunt, sed de portione sua ducentas libratas terrae dederunt Archiepiscopo, [Page] ut per milites suos terras eorum defenderet, & ut omnia negotia eorum apud Curiam Romanam suis expensis expediret. Ʋnde adhuc in totà terrâ Monachorum nullusNota. miles est, sed in terrâ Archiepiscopi. Terram tamen ducentarum librarum adhuc habent Archiepiscopi: pro quibus omnibus valdè miramur, quòd vel talia dicit, vel quòd assensum [...]i praebetis, quòd vestrâ authoritate & nomine vestro, per ministros vestros res & possessiones nostras invadit, cum nichil ad eum spectent, set nos teneamus post Deum in capite de vobis, sicut & ipse: quod manifestum est, decedentibus Archiepiscopis, quia terrae eorum statim confiscantur, à seculo autem inauditum est, quod possessiones nostrae confiscatae fuerint aliquo tempore. Quapropter supplicamus, ut maturiùs pro Deo dum potestis haec corrigi faciatis, cum fortè tunc Fortè, voletis. velitis, cum non poteritis. potueritis. Valeat.

Donatio Wolgithae de manerio de Stisted, A. D. 1046.

Here appeareth in this writing how Wolgith givesScriptura 22. Vide pag. 85. [...] [Page] her substance after her departure, which to her the Almighty [...] God gave in life to use, that is then first [...] to my Lord his right Heriot. And I give that land [...] at Stistede with. by Gods testimony. witnesse & my friends [...] to Christ-church to the Monks for i. c. ad victum. sustenance, [...], on this condition that Elikitel & Kytel my children [...] use those lands for their lives time. dayes, & afterward go [...] that land to Christ-church without any deduction [...] for my soule, & for Elfwines my Lords, & for [...] all my children, & be halfe the men free after their [...] deaths. dayes. And I give to the church at Stistede [...] together w [...]th that. besides that which I in life gave Eldemesland. & [...] withall. thereto Hyeken, that there be in all fifty acres in [...] champion field after my departure. And I give to Wolk & [...] Kytel my sonnes that land at Walsingham, & at [...] Charlton, & Herlingham. And I give to my two [...] daughters Gode & Bote Sexlingham & Summerledeton, [...] [Page] & to the church at Sumerl. sixteene acres [...] of land, & one acre of medow. And I give to Ealgyth [...] my daughter that land at Cherteker and at Ashford, [...], and the wood which I laid thereto. And I give to [...] Godwine Earle and Harald Earle Frithton. And I give [...] to Christ-church to Christs altar one little [...] gilt Crucifi [...]. crosse and one carpet, and I give to S. Edmund [...] two boned hornes. And I give to S. Etheldrith [...] one wollen kyrtel. And I give to S. Osyth [...] halfe a pound of money. And I give to Austine one [...] carpet. And he that my will. testament bereaveth [...] which I now bequeathed. ordeined have with. by Gods witnesse. testimony, [...] bereaved let him be of these earthly joyes, [...], & cut off him the Almighty Lord which all creatures [...] created & made from all Saints. holy mens communion [...] at. in Domesday, & be he delivered to Satam the Devill [...] & all his cursed companions into hell bottome, & [...] [Page] there be tortured. perish with Gods reprobates. deniers Or, Except he desist from molesting mine heires. without intermission, [...] & mine heires never to trouble (s). Of this [...] is for witnesse Edward King & many others. [...].

Donatio terrarum apud Apoldre, Orpinton, Palstre, Werhorne, Wittrisham, ecclesiae Christi Cantuariae per Aedsium Presbyterum, de consensu Cnuti Regis & Aelfgifae Reginae, ann. 1032.

Here appeareth by. in this writing how Cnut KingScriptura 23. Vide pag. 120. [...] & Aelfgife his Lady gave to Eadsy their Priest [...] when he turned monk that he might dispose. convey that [...] land at Apuldore as to himselfe most pleasing were. [...]. Then gave he it to Christ-church to Gods servants [...] for his soule, & he it bought that of the Covent for his [...] dayes & Aedwines with fower pounds, on that condition. contract [...] that men deliver every yeare to Christ-church [...] three weighs of cheese from that land, & three cados. bundles [...] of Eeles, & after his dayes & Aedwines go that [...] land into Christ-church, with meat and with i. e. entirely. men [...] [Page] even as it then improved. inriched is, for Eadsies soule, and [...] he bought that land at Werhorne of the Covent for [...] his dayes and Eadwines also with fower pounds, then [...] goeth that land forth with the other after his dayes & [...] Edwines to Christ-church with the stock. crop that [...] there then on is, & that land for his dayes at Berwick [...] which he obteined of his Lord Cnute king, & he [...] gives also those lands at Orpington in his dayes for [...] his soule to Christ-church to Gods servants for [...] clothing. garment land, which he bought with eighty [...] Scrud-land. Hustings weight. marks of white silver by Hustings weight, & he gives [...] also those lands at Palstre & at Wittresham after [...] his dayes & Edwines forth with the other to Gods [...] servants for foster-land for his soule. This bequestFoster-land. [...] he giveth to the Covent on this condition. contract that they [...] ever him well observe, & to him faithfull be in life & [...] after life, & if they by. with any unadvisednesse with [...] [Page] him this condition. contract shall breake, then stands it in [...] his owne power how he afterwards his owne dispose [...] will. Of this is for witnesse Cnute King, & Aelfgife [...] his Lady, & Aethelnoth Archb. & Aelfstan A b. & [...] the Covent at S. Austines, & Brihtric young & Aetheric [...] husbandman, & Thorth Thurkilles nephew, and [...] Tofi, & Aelfwine priest, & Eadwold priest, and all the [...] Kings Counsellours, and this writing is tripartite. threefold, [...] one is at Christ-church, and one at S. Augustines, [...], and one hath Eadsy to. with himselfe. [...].

FINIS.

§

§

I have perused this learned Treatise of Gavelkynd, and judge it very fit to be published.

April 7. 1647.

Ja. Armachanus.

A Table, or Index OF The principal Contents.

[Page]

A.

AEHte, what, p. 84

Agium, in the termination of word what signifying, p. 137

Akerland, what, p. 117

Allodiarii, p. 123

Allodium, the same with Bocland, p. 88, 110. the word derived, p. 105. more properly in England since the Conquest, p. 126. proper onely to the King to grant, p. 126

Almesland, what, p. 119

Assise of Mortdancester, where it lieth, p. 152, 157

Aver-bred, what, p. 25

Aver-land, what, p. 116

Avermannus, p. 116

B.

Bed-rip, what, p. 17

Bene-bred, what, p. 17

Beneficium, of same signification anciently, that Feudum of latter times, p. 10 [...]

Benerth, what, p. 18

Ben-rip, what, p. 17

Bere-gafol, what, p. 29

Ber-land, what, p. 118

Bermannus, what, p. 118

Bians, what, p. 18

Black-maile, what, p. 34

Black-rents, what, p. 34

Blank-ferme, what, p. 34

Bocland, what, p. 84. whence so called, p. 112. how variously denominated, p. 121 whether anciently deviseable, p. 89. whether otherwise alienable, p. 87, 88. the same with Allodium, p. 8, 110. reteined after the Conquest, p. 120

Bordarii, p. 118

Bord-land, what, p. 114, 118

Bordmanni, p. 118

Burgh-yard, what, p. 22, 189

Bydel, what, and whence derived. p. 20

C.

[Page]Mr. Cambdens derivation of Gavelkynd, p. 3

Carropera, p. 24

Carucae procariae what, p. 18

roga [...]ae, p. 19

Carucage, what, p. 133

Charters, diverse of those in Ingulphus questioned, and how far, and why, p. 101

Chivalry and Socage, two tenures comprehending all the lands in Kent, and elswhere in England, p. 129

Cniht, in the Saxon language, what, p. 7

Coke, Sir Edward, his derivation of Gavelkynd, p. 3

The Conquerours progresse & proceedings after his victory neer Hastings, p. 69. his Charter of Restitution of Church-lands, p. 68

Conquest, the times about it very rapacious, p 67

Contract of marriage, a Saxon form or model of it, p. 75, 76

Coredy, what, p 19, 20

Corne-gavel, what, p. 16

Corporations, anciently en [...]eoffed with lands in Gavelkind, p. 8

Cotarii, what, p. 116. their tenements changed into Gavelkind, p. 59

Cotland, what, p. 116

Cotmani, what, ibid.

Custome, hardly left, p. 5. beginning within memory no Custom, ibid. of Gavelkynd, a common law in Kent, p. 44 its essential property, p. 49. how different from Tenure, p. 144

Cyricena-Socne, what, p. 133

D.

De rationabili parte bonorum, the Writ so called whether lying at the Common Law, or by Custom? p. 78, 91

Dome, in the termination of words, what signifying, 106

Dover-castle the Lock and key of all England, p. 70

Drenches, what, p. 124

Drincelean, what, p. 29

Drof-dens, what, p. 117

Drof-land, what, p. 116

Drof-mannus, what, ibid

Dun-land, what, p. 117

E.

Error, if setled, difficult to remove, p. 62. often caused for want of altercation. ibid.

Estates, in England universally partible before the Conquest, and how, p. 77, 78

Ex gravi querela, the Writ so called, where it lies, 153, 159

F.

Fald-Socne, what, p. 134

Fald-worth, what, ibid.

Fee, not alienable without the Lords consent, p. 8. whether [Page]anciently deviseable, p. 84 naturally not deviseable, and why, p. 162

Fees, whether any in England before the Conquest, p. 103, 111. become patrimonial in many places, p. 162. what in their original, p. 108. how changed afterwards, ibid.

Females, capable of succession in Gavelkynd-land, p. 7. excluded from succession with Males, p. 8

Feudastra, what, p. 57

Feuduto, novum, & antiquum, p. 40

Feudum, the word how ancient, p. 101, 102. derived, p. 104

Fewd (in deadly fewd) whence derived, p. 107

Fief de Haubert, and de Roturier, p. 36

Filctale, what, p. 30

Fildale, what, ibid.

Fines for the enfranchising of lands, p. 59

Fird-socne, what, p. 174

Fodrum, what, p. 25

Folcland, the nature of it, p. 78 See also p. 114, 126.

Folgarii, what, p. 115

Foot-average, what 116

Forgable, what 30

Forland, what 118

Forsohoke 31

Foster-land, what, 119

Francus bancus 51, 178

Frankalmoigne, p 40, 142

Frank-fee 56

Freehold, whether anciently deviseable, 84

Frith-socne, what 133

G.

Gabella, what p. 13

Gablum, what, p. 13. terram pon [...]e gablum, what, 14

Gabulum denariorum 26

Gafel, gafol, gafnl, gavel, what signifying 10

Gafolgylda 33

Gafol-hwitel [...]6

Gaigneurs, what 25

Gavel absurdly rendred gifeeal in many compounds, 10

Gavelate, what 31

Gavel-bred, what 25

Gavel-bord, what 22

Gavel-corne, what 16

Gavel-dung, what 21

Gavel-erth, what 17

Gavelet what 31

Gavel-fother, what 25

Gavelikendeys 33

Gavelkynd, the words vulgar derivation proposed, pag. 2. scanned, p. 6. rejected, ibid. a new etymon proposed and asserted, p. 10. the Custome so called a Common Law in Kent, p. 44. not causal of Partition in land so called, p. 44. what it comprehends, p. 48. the tenure so called almost universal in Kent, [Page] p. 44. whether eo nomine obteining in Wales, p. 53. whether a Tenure or a Custome, p. 100. Prescription in it not good, and why, p. 44 whether Socage and it Synonimies, p. 55. Grants of land in Gavelkynd, p. 38. when ceasing, p. 51. See more in Partition, Villains.

Gavelkynd-land, females capable of it, p. 7. the nature of it, in point of partition, scanned, p. 42. no prescription good there, and why, p. 46. liable to Works, p. 57. whether deviseable in Kent before the Stat. of Wills, p. 151. descendible to collateral kinred, p. 7. anciently conveyed to Gilds and Corporations, pag. 8. alienable from the proper heir, p. 9. all partible land not called Gavelkynd, p. 10.

Gavelman p. 33

Gavel-med, what 20

Gavel-noh [...], what 25

Gavel-ote, what 21

Gavel-refter, what 22

Gavel-rip, what 19

Gavel-rod, what 22

Gavel-sester, what 23

Gavel-swine, what 23

Gavel-timber, what 22

Gavel-werk, what 24

Gavel-wood, what 23

Ge, how used with the Sa [...] ons, p. 38

Gecynde, mis-construed by Mr. Lambard, 37

Geneat, what 14

Gersuma, what 59

Grants of land in Gavelkynd, when ceasing 51

H.

Hade, head, hode, hood, &c. in the termination of words what signifying 106

Haereditaments, what 83

Hamso [...]ne, what 134

Hereslit, what, and whence derived, 32

Hide land, what 117

Hlaford-so [...]ne, what 134

Horse-average, what 116

Hotchpot 91

Hunig-gavel, what 28

I.

In-average, what 116

Ingulfus Charters, many of them questioned, and how far, and why 101

Inheritance, the word how accepted in England, 83, 84.

Inheritances, in England universally partible before the Conquest, and how, 77, 78

Inland, what 114, 119

K.

Kent, with other Counties conquered and over-run by Will. 1. p. 66. Servi there, p. 74. also Nativi, 75

[Page]Kind, in Dutch, what, and whence derived p. 6, 7

Knecht in Dutch, what 7

Knight service-land naturally incapable of partition 48

Knyghren-gyld 135

Knights, whether any here in England before the Conquest 123

Kynd, in Gavelkynd of what signification 37

L.

Mr. Lambard his two-fold derivation of Gavelkynd, p. 3. whereof one rejected, the other admitted, p. 5. mistaken in the construction of gecynde 37

Land, all in Kent and thorowout England, either of Chivalry or Socage Tenures, p. 38. all in England, either ancient Demesne, or Frank fee, p. 57. and subject to Tenure, 126. descended, not alienable of old without the heirs consent, 39. purchased, alienable at pleasure, ibid. censual, not censual, 35. how many several kinds of land before the Conquest, 114. as also since 115

Landagendman, what 15

Land-boc, what 112

Land-gabel, what 15

Land-gafol, what ibid.

Leaf-gavel, what p. 27

Lef-silver, what ibid.

Les-gavel, what ibid.

Les-gold, and Les-yeld, what ibid.

Liberum feodum, what 56

Lyef-geld, what 27

M.

Mailer, what p. 34

Mailman, what ibid.

Mail-payer, what ibid.

Mala, what ibid.

Malt-gavel, what 27

Malt-peny, what ibid.

Malt-shot, what ibid.

Manopera, what 24

Mete-gavel, what 31

Mirroir, the book so called, censured 104

Molland, what 117

Molmannus, what ibid.

Monday-land, what 120

Mortdancester, the Assise so called, where it lies, 152, 157

Mortmaine, what, 40. the tenure of it double ibid.

N.

Names, to be sutable with things very convenient, 11

Nativi in Kent 75

Neatland, what 114

Nidering, alias Nithing, a nickname of what signification, & whence derived, 65

O.

Oale-gavel, what 24

[Page]Ordericus Vitalis, his relation of the Conquerors proceedings and progresse after his victory neer Hastings, p 71

Ordinary, his power of d [...] stributing Intestates goods here in England, when beginning, as also in Scotland, and Normandy 79

Over-land, what 119

Out-average, what 116

P.

Parceners, how many sorts, 42

Paroc, what 23

Partition, in Gavelkynd-land, neither from the name, nor nature of it onely, 44. nor from prescription, 46. but partly from the nature of it, and partly from custom, and what, 47. the antiquity of it, 61. whether inherent in the land, 247, 150. why more general in Kent than elswhere, 52, 61. whether brought hither by Odo out of Normandy, 61, 81. whether continued there by composition with the Conquerour 62

Partition, but one property or branch of Gavelkynd, 48, 146. out of Kent whence obteining ibid. & 54

Partition of goods 79

Peny-gavel, what 26

Some Phrases in Ingulphus ancient Charters questioned p. 101

Pictavensis his relation of the Conquerors proceedings and progresse after his victory neer Hastings, 69. himself the Conquerours Chaplain, and an eye-witnesse ib.

Portfoc [...], what 135, 136

Portsoken, what 135

Potura, what 29

Prescription not good in Gavelkynd, and why 44

R.

Rationabili parte bonorum, 78, & 91

Redditus, albi, what, 34. nigri▪ what, ib.

Restitution, a Charter of it by the Conquerour 68

Rip-silver, what 19

Rochester-Castle besieged by Will. 2. 64

Rod-land, what 117

Romney, the Conquerours passage by it in his march to Dover 69

S.

Contract of marriage in Saxon, 75. the edition of it corrected, 76. Several wils in Saxon 85

Scip, ship, in the termination of words, what signifying, 106

Scotale, what 29

[Page]Scrude-land, what p. 119

Seisin, how delivered in the Saxons times 112

Servi in Kent 74

Servitus rusticana 127

Sextary-land, what 119

Smithesland, what 118

Soca, Socha, Soke, Sokne, what 133, 137

Socage, free and base, 55. the derivation of the word, and what it signifies, 129. whether it and Gavelkynd Synonima's, 55. its original, 127. opposite to Villenage, 139

Socage-land and service, so called elswhere, in Kent termed Gavelkynd 49

Socagium, the distinction of it into liberum and villanum, whence 141

Socmanni 137

Sokerevi 134

Sokmanry 137

Spelman Sir Henry, his derivation of Gavelkynd 3

Spots story (of the Kentishmens encounter and composition with the Conquerour) exhibited, questioned, refuted, 63. a meer monk [...]sh [...]igment, and why devised, 71. when he lived, 64. his commixture of falsity, 63

Stigand the Archbishops deposing for opposing the Conquerour, not warranted by ancient story 75

Sul-aelmesse, what 132

Swilling-land, what 117

Swine-gavel, what 23

Swine-money, what ib.

Swine-paneges, what ib.

Swinhey, what 190

T.

Tainland, 121

Tenure, all land in England subject to it, 126. how different from Custome, 144

Tenure, 1 by Divine service, 2 in Frankalmoigne, 3 in Fee ferm, 4 by Petite Sergeanty, 5 by Escuage certain, 6 in Burgage, all Socage, and whence, 130, 141

Tenure in Mortmaine twofold 40

Tenures in Chivalry and Socage, all lands both in Kent, and elswhere throughout England reducible to one or t'other of them 129

Tenures, in Gavelkynd new created, 9. what before the Conquest 112

Terra ad gablum posita, what 14

Terrae censuales, what 36

Terra, haereditaria, 84. libera, 58, 84. susanna, 118. testamentalis, 84, 86. unde nemini respondetur, 120

Thegenes, 1 [...]3

[Page]Theines, p. 123

Threnges ibid.

Tol-sester, what 24

Truth often lost by too much altercation 62

Twy-gavel, what 28

Twy-sket, what ibid.

V.

Verstegan, his derivation of Gavelkynd 3

Villani in Kent 73

Villenage opposite to Socage, 139

Villeine-services when first ceasing so generally in Kent 58

Villeine and Villenage in England in the Saxons time, 66. in Kent since the Conquest, 72. and in Gavelkynd-land, 73. as also before the Conquest 75

Vilienagium privilegiatum, 141

Unlandagend, what 1 [...]

Utland 114

W.

Wareland, what 118

Weilreif, what 65

Were-gavel, what 28

Werk-gavel, what 26

Werk-land 57

White-rents, what 34

Wills in Saxon 85

Wood-gavel, what 26

Words in Ingulphus more ancient Charters, a sort of them questioned 101

Work-land, what 115

The Writ, De rationabili parte bonorum, whether lying at the Common Law, or by Custome? 78, & 91

The Writ of Ex gravi querela, where it lies, 153, 159

Y

Yoke-land, what 117

FINIS.

Information about this book

Title statement

A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner.

Somner, William, 1598-1669.

Edition statement

1659

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2008-09 (EEBO-TCP Phase 1).

ID [DLPS]

A93553

ID [STC]

Wing S4668

ID [STC]

Thomason E1005_1

ID [STC]

ESTC R207857

ID [EEBO-CITATION]

99866884

ID [PROQUEST]

99866884

ID [VID]

119172

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This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early English books online.

Notes

(EEBO-TCP ; phase 1, no. A93553)

Transcribed from: (Early English Books Online ; image set 119172)

Images scanned from microfilm: (Thomason Tracts ; 149:E1005[1])

Source

— A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner., Somner, William, 1598-1669..

Extent

[16], 216, [8] p.

printed by R. and W. Leybourn for the authour, and are to be sold by John Crooke at the Ship, and Daniel White at the Seven Stars in St. Pauls Church-yard,. London :: 1660.. (The first leaf is blank.) (In this issue, preliminaries include: "The preface", the last page having 4 lines of text; the verso contains postscript.) (Annotation on Thomason copy: "Nouemb: 1st 1659"; "1659. Nouember"; the imprint date has been crossed out.) (Reproduction of the original in the British Library.)

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