PROPOSITION I.

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 3] 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 4] 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 5] 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 6] 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 7] 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 8] 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 9] 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 10] 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 11] 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 12] 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 13] 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 14] 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 15] 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 16]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 17] 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 18] 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 19] 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 20] 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 21] 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 xl^ma. 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 22] 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 23]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 24] 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 25]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 26] 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 27] 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 28] 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 29] 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 30] 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 31] 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 32] 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 33] (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 34] 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 35] [...]. 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 36] 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 37]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 40] 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 41] 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.

PROPOSITION II.

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 43] 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 44] 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 45] 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 46] 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 47] 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 48] 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 49] (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 50] 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 51] 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 52] 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 53] 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 54] 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 55] 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 56] 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 57] 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 58] 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 59] 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 60] 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 61] 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.

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 62] 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 63] 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 64] 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 65] 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 66] 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 67] & 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 68] 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 69] 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 70] 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 71] 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 72]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 73] 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 74] 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 75] 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 76] 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 77] 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 78] 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 79] 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 80] 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 81]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 82] 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 83] 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 84] 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 85] 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 86] 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 87] 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 88] 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 89] 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 90] 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 91] 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:

PROPOSITION IV.

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 101] 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 102] 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 103] 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 104] 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 105] 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 106] 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 107] 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 108] 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 109] 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 110] 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 111] 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, w^ch 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 112] 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 113] 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 114] 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, w^ch 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 115] 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 116] 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 117] 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 118] 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 119] 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 120] 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 121] 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 122] 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 123] 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 Will^mi milites in Anglia, sed Threnges, praecepit Rex, ut [Page 124] 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 125] 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 126] 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 127] 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 128] 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 129] 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 130] 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 131] 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 132]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 133] 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 134] 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 135] 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 136] 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 137] 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 138] 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 139]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 140] 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 141] 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 142] 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 143] 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 144] 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.

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 145] 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 146] 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 147] 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 148] 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 149] 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 150] 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 151] 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.

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: