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-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 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 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-service-land the Lords In-land or demesne-Demesne-land as in the case of a common Lord or to the Crown à quo omnia feudamoventur â—riuntur the Fountain whence all Tenures are derived as in the Kings case from whence by the letting it out in Gavelkynd it was formerly severed To this purpose see Petri Gregorii Tholosani Syntag. Jur. univers lib. 6. cap. 5. num 11. But of this also hitherto for I hasten to an end PROPOSITION V. Whether before the Statute of Wills 32. and 34. H. 8. Gavelkynd-land in Kent were deviseable or not IN answer whereof holding with those which resolve it in the negative howbeit for my part not studio partium but veritatis amore I shall oppose to such as hold the contrary what arguments are brought against them and their opinion in a case of Mr. Halls of Kent verbatim as I find them published in print which here follow with their title Reasons and authorities to prove that Gavelkind-lands in Kent are not nor were anciently deviseable by Custome FIrst it is a rule in Law that an Assise of Mortdancester doth not lie of lands which are deviseable by Testament c. and this appears by divers books as namely 4. Edw. 2. Mortdanc 39. 22. Assiz 78. and Fitz. Nat. Brevium 196. 1. But it appears by Bracton fol. 276. b. that an Assize of Mortdancester will lie of Gavelkind lands in Kent and so it appears by divers ancient Records quod vide in Itinere Johannis de Berewicke c. Anno 21. Edw. 1. Copia fol. 1 7 22 24. in Itinere H. de Stanton Anno 6. Edw. 2. Copia fol. 1 8 9 10 13. By which it appears plainly that an Assize of Mortdancester lies of Gavelkind lands in Kent But an Assise of Mortdancester doth not lie of lands within the city of Canterbury because lands are there deviseable by Custome as it appears in dicto Itinere H. de Stanton fol. 3 4 6. And it is evident that in the city of Canterbury which was anciently part of the county of Kent there was a special custome used to devise lands lying within the liberties of the city and to prove their wils in the Court of Burgmote in the same city But there needed no such Custome if all the Gavelkind lands in Kent had been deviseable c. Also the most part of the ancient Wills of Gavelkind lands in Kent before the Statute of Uses did mention Feoffees of the lands devised c. as appears by the Register-books of Wills at Canterbury and at Rochester whereby it doth appear that the Devisors were Cestâ—y que uses and not owners of the land devised and although some wills of land make no mention of Feoffees yet there were Feoffees of the same land as will appear by the deeds of Feoffment thereof and twenty to one do mention Feoffees c. Also Sir John Fineux chief Justice de R. B. Sir Robert Read chief Justice de C. B. and Sir John Butler Justice c. devise their lands in Kent before the Statute of Uses and make mention of Feoffees c. which had there been a Custome to devise no question they had taken of it c. Also many ancient deeds of Feoffment of lands in Kent referr to Wills sc Dedi concessi c. A. B. omnia terras tenementa c. ad opus usum perimplendi ultimam voluntatem meam c. Also there are wills to be found of lands in diverse other Counties of this Realm whereby lands were devised before the Statute of Uses and no mention made of any Feoffees as appears in the Register-books of the Prerogative Court and in diverse other places and yet without doubt they bad Feoffees seised to their uses c. or else they could noâ— there devise the same Also the houses and lands in Cities and Burroughs which were deviseable by Custome were reckoned inter catalla sua but it were strange that all the Socage Lands in Kent which are conceived to be Gavelkind should be reckoned inter catalla c. And in the Register fol. 244. there are fourteen several Writs of Ex gravi querela and none of them make mention of any County c. nor of Gavelkind but secundum consuetudinem Civitatis or secundùm consuetudinem Burgi c. And if Gavelkind Lands be deviseable by Custome c. the Devisee can have no Writ of Ex gravi querela because there is none before whom the Action or writ should be brought c. Also Mr. Lambard in his Perambulation writing of the Customes of Kent maketh no mention of any Custome to devise lands nor the Treatise called Consuetudines Cantiae in the old Mag. Charta fol. 147. which without doubt they would not have omitted if there had been any such Custome c. Also between the Statutes of 27. H. 8. of Uses and the Statutes of 32. of H. 8. of Wills there were very few Wills made of lands as appeareth by the Register-books before mentioned and the most of such Wills as were then made being but few in number do make mention of Feoffees Also the common practice ever since the Statutes of Wills hath been such that if a Will be made void for a third part by a Tenure in Capite of part of the land c. that third part shall descend to the Heir and the Devisee shall not have it and this appears by special Liveries in the Court of Wards proving the same and by diverse witnesses that can prove the same to be so c. And in Sanders case of Maidstone in Anno 9. Jacobi Regis all the lands were devised by Will and after the Will was avoided for a third part by reason of a Tenure in capite of a small
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 testimonâ—o Let me illustrate it by a passage in a Charter of King Edmund to Aelâ—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 adquâ—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 quâ—etè absque omni câ—lumnia or like that passed or conveyed as in Sir Henry Spelmans Councils pag. 319. and 333. as was unquestionâ—bly a mans own as upon the purchase or 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 Shiâ—e-book in publike Shire moâ—e after proclamation there made for any to come in that could lay challenge or pretend right unâ—o it whence not improbably our manner of recording conveyances sometimes as in Canterbury in the Hundred sometime in the Burgemoâ—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 Sir Henry Spelman I confesse is cleer of opinion against all power of aliâ—naâ—ion in the owner and that of necessity it must â—e left to descend to the heir and thence is called terra â—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 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 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 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 of Archbishop Wâ—fred who died about the yeer 830. of the gift of certain houses to his Successours in the See of Canterbury thus speaking 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 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 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 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 give the reason the younger be as good Gentlemen as the elder brethren c. an argument proper perchance for the partible land in Wales
vestrâ authoritate nomine vestro per ministros vestros res possessiones nostras invadit cum nichil ad eum spectent set nos teneamus post Deum in capite de vobis sicut ipse quod manifestum est decedentibus Archiepiscopis quia terrae eorum statim confiscantur à seculo autem inauditum est quod possessiones nostrae confiscatae fuerint aliquo tempore Quapropter supplicamus ut maturiùs pro Deo dum potestis haec corrigi faciatis cum fortè tunc velitis cum non potueritis Valeat Donatio Wolgithae de manerio de Stisted A. D. 1046. Here appeareth in this writing how Wolgith gives 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 her substance after her departure which to her the Almighty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 God gave in life to use that is then first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to my Lord his right Heriot And I give that land 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at Stistede by Gods witnesse my friends 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Christ-church to the Monks for sustenance 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on this condition that Elikitel Kytel my children 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 use those lands for their dayes afterward go 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that land to Christ-church without any deduction 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for my soule for Elfwines my Lords for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 all my children be halfe the men free after their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dayes And I give to the church at Stistede 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 besides that which I in life gave Eldemesland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereto Hyeken that there be in all fifty acres in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 field after my departure And I give to Wolk 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Kytel my sonnes that land at Walsingham at 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Charlton Herlingham And I give to my two 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 daughters Gode Bote Sexlingham Summerledeton 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the church at Sumerl sixteene acres 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of land one acre of medow And I give to Ealgyth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 my daughter that land at Cherteker and at Ashford 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the wood which I laid thereto And I give to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Godwine Earle and Harald Earle Frithton And I give 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Christ-church to Christs altar one little 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gilt crosse and one carpet and I give to S. Edmund 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 two boned hornes And I give to S. Etheldrith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one wollen kyrtel And I give to S. Osyth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 halfe a pound of money And I give to Austine one 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 carpet And he that my testament bereaveth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which I now ordeined have by Gods testimony 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bereaved let him be of these earthly joyes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 cut off him the Almighty Lord which all creatures 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 created made from all holy mens communion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Domesday be he delivered to Satam the Devill 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 all his cursed companions into hell bottome 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there perish with Gods deniers without intermission 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine heires never to trouble s Of this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is for witnesse Edward King many others 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Donatio terrarum apud Apoldre Orpinton Palstre Werhorne Wittrisham ecclesiae Christi Cantuariae per Aedsium Presbyterum de consensu Cnuti Regis Aelfgifae Reginae ann 1032. Here appeareth in this writing how Cnut King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aelfgife his Lady gave to Eadsy their Priest 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when he turned monk that he might convey that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 land at Apuldore as to himselfe most pleasing were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Then gave he it to Christ-church to Gods servants 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for his soule he it bought that of the Covent for his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dayes Aedwines with fower pounds on that contract 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that men deliver every yeare to Christ-church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 three weighs of cheese from that land three bundles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of Eeles after his dayes Aedwines go that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 land into Christ-church with meat and with men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 even as it then inriched is for Eadsies soule and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he bought that land at Werhorne of the Covent for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his dayes and Eadwines also with fower pounds then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 goeth that land forth with the other after his dayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Edwines to Christ-church with the crop that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there then on is that land for his dayes at Berwick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he obteined of his Lord Cnute king he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gives also those lands at Orpington in his dayes for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his soule to Christ-church to Gods servants for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 garment land which he bought with eighty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 marks of white silver by Hustings weight he gives 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 also those lands at Palstre at Wittresham after 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his dayes Edwines forth with the other to Gods 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 servants for foster-land for his soule This bequest 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he giveth to the Covent on this contract that they 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ever him well observe to him faithfull be in life 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 after life if they with any unadvisednesse with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him this contract shall breake then stands it in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his owne power how he afterwards his owne dispose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 will Of this is for witnesse Cnute King Aelfgife 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his Lady Aethelnoth Archb. Aelfstan A b. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Covent at S. Austines Brihtric young Aetheric 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 husbandman Thorth Thurkilles nephew and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tofi Aelfwine priest Eadwold priest and all the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Kings Counsellours and this writing is threefold 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one is at Christ-church and one at S. Augustines 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and one hath Eadsy with himselfe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS I have perused this learned Treatise of Gavelkynd and judge it very fit to be published April 7.
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 learned 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 gâ—adation one step higher câ—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 differs 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 Judge Dodderidge Dr. Cowell the Authour of the New Terms of Law and many more longo agmine aâ—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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 idest omnibus cognatione proximis data dicatur But afterwards as if upon second thoughts altered in his 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 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 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 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 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 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 â—s my own by a learned mans example whoâ—e words in a like case as very apposite in this I shall here borrow for the close of my Apologie Etsi mâ— non lateat saith he quà m lubrica plenaque discrimâ—nis res sit quae per tot secula tot homines eruditi uno consensâ— probaâ—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
Gavel-reâ—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 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 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 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 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 happy 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 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 expounded abroad viz. Vectigal Portorium Tributum Exactio Census in Latine but in English with Verstegan Tribute Tax or Custome to which with Mr. Lambard and Sr. Edw. Coke let me adde Rent witnesse besides the former quotations what occurrs in an ancient will or deed 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 Covent that is xl measures called Sextaries of ale 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 Consuetudines Customes denote 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was by a transposition of the syllables called and known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 proprietâ—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 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 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 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 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 Conventuâ— successoribus suis annuatim in 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 â—od festo S. Michaelis octo denarios pro dictis medietate quarta parte unius swillingâ— secundum ratam portionis illas medietatem quartam partem unius swillingae de praedictis ordeo avena contingentis in casu quo praedicti tenentes praedictum or deum avenam in eodâ—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 Canterburies 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 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 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 which 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 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 precario mutuabatur Hence the phrase in many old Custumals and Rentals 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 of Saltwood manour The meaning of such passages in records of that kind as this arant preces semel ad conredium 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 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 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 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 of Hen. 1. Laws hath it Benripe that done de gablo 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 there 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 called 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 quà m 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 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 of Terring manour in Sussex anno 11. 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 sometime in kind other while by composition redeemed with money As to the former its payment in kind I read thus in an old Custumal sans date of Southmalling manour in Sussex Borga de Wellingham Operarii Omnes isti operarii de W. debent reddere annuatim de qualibet virgata unum quarterium avenae quod dicitur Gavelote in xlma. In an Accompt-roll of the same manour I find a charge sutable Idem respondet de octo quarteriis quatuor bush avenae receptis de gabulo Custumariorum de Wellingham And for the redeeming it with money an old 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 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 under 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 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 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 occurs sufficiently explaines unto us and that is an old 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. Certain Rent-timber to be used in repairing the Lords mansion-house or some apperteining Edifice and as some Records do specifie it Rafters Whence in an 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 of the same nature was the next called Gavel-bord whereof 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 And by an inversion of the syllables Swine-gavel 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 of accompts of Mayfield manour in Sussex anno 11. Edw. 3. otherwise Swine-paneges and Swine-money and the like when namely they were redemed with the peny or with money which was usually paid
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 the same manour frequently nameth it So called peradventure in relation to some greater 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 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 unlesse 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 Et de xviij d. de Lef-silver in Hathewoldum The old Custumal of Tenham manour in Kent calling it Lyefyield 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 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 Rentals of Chistlet manour in Kent seem to term what some ancient Accompt-rolls of Otteford and other manours call Hunigaved both one and t'other signifying Rent-honey Item de Weregavel vj. d. aliquando tamen plus aliquando minus Thus in the 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 Accompt-roll of the manour of Reculver 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 an imposition upon the Tenants of Aldington manour by Romney mersh for maintaining the Sea-coasts there 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 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 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 whereof 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 contribution 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 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 dabit ibi pro se uxore sua iij. ob vidua vel Kotarius j. d. In the 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 learned 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 it 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 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 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 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 passing over Metegavel whereof mention is 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 but 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
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 consider 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 Rent-service 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 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 Fee 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 referred so also to that known distinction of their lands in Normandy from whence as some 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 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. It is no simple word Gavelkynd but a compound 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 Nature To give an instance or two 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after true nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. it is naturally and the like Iâ— 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 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 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 Southweâ—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 Deâ—minde S. Thomam Martyrem Sanctos Cantuariensis Ecclesiae conventum monachorum ejusdem heredem meum legitimum inscribo hac mea carta in perpetuum constituo To which many more such like might easily be added from the same Promptuarium The Fâ—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 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. â— so this in hand is no alienation in Frankalmoigne the Fâ—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 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 return of all but divine services and burthens they phrase it not therefore I say in puram or liberam eleâ—mosynam but onely in perpetuam eleâ—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
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 Gafâ—l and Wâ—rk and though moreover Gafolland and Werkland occurr in some manours out of Kent as of a distinct and different nature yet both servile and opposed to 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 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. 'T is true indeed at this day and time out of mind haply from Richard the seconds 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 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 Custumal of Eastry manour in Kent I read In eodem manerio mutati sunt octo Cotarii pro Gavelkende Medlefâ—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 pareâ—d with such a sum of money to his Lord in gersumam i. e. in consideration of 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 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 Accompt-roll and in the receipt of Ceâ—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 Mr Lambard are noted to be holden in Knights-service 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 whole County in censual land or land letten for Cens or what is all one with it Gavel or Gafol to say holden in Fâ—ef or Inheritance Roturier as called in Normandy and other parts of France the Antiquity whereof and how beginning in Kent and why more general there than elswhere shall be the argument of our next Discourse PROPOSITION III. The Antiquity of Gavelkynd-custome in point especially of Partition and why more general in Kent than elswhere MAster Lambard 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
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 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 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 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 His per anticipationem breviter intimatis ad finem gestorum Willelmi Regis Anglorum Ducis Normannorum de quibus fastidio Lectorum compendiosè consulentes quaedam persâ—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 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 Now descend we to the result of the Story and the inference upon that meeting made by Spot and 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 Censâ—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 pâ—tres habuerunt tenendas ad voluntatem Domini secundùm consuetudinem maneriâ—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 to say nothing of Hubert the Archbishop of Canterbury in King Johns time his acquitting both his own and the Monks possessions amongst other burthens from that of 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 Assessoâ—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 courâ—esâ—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
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 Utrecht to suspect that list or memorial 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 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 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 â—irmam in Alodio and other like Tenures there occurring the Introducer borrowing saith one 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 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 Tenures such at least as are military ow their introduction whatsoever the 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 iâ— 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 oâ— the word whereunto it is opposed Allodium wherein indeed Authours of several sorts Lawyers I mean Etymologiâ—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 opinions 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 German Fueden quaâ—i a fungendo i. pascendo or as 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 derivative 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 â—ine vassallo as a mad man is called amens to say â—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 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 Lâ—od in French Lâ—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 repeâ—ition of these and the like for there are some other various opinions of this kind or any Catalogue of the several 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
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 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 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 which 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 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 aevâ— 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 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 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 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 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 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 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 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 remaâ—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 forfeict But of Bocland more anon Some other kinds of land 't is true there were in those dayes but all I take it reducible to the precedent Diehotomy such as 1 Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as it is in the truce or agreement between Alfred and Guthrun KK in the Archaion cap. 2. 2 Neatland 3 Inland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so runs the first chapter of King Edgars Laws there 4 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 Folâ—land was to rural people more Emphitâ—utico for profit the one from Gable or Gafol i. â— 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 which 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 oâ—e that occupieth 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 stilâ—d in succeeding times Bord-land like the Civilians and Canonists bona ad mensâ—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 tenementâ—lis 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 sâ—rvant i. terra serviens in respect whereof the Tenants were bound to be Retainers Attendants and Followers to their Lords Suiâ—ors to their Courts and were thence called in the term of Hen. 1. Laws taken up afterwards of 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 and work- 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 aâ—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 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 occupied by the Cotarii Cotsetâ— 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-Aver-land much the same with that before called work-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 thence termed Foot-average one while within the precinct of the manour thence named In-average another while without and then called Out-average the Tenant in the mean while being known by the name of Avermannus The fourth drof-Drof-land that holden by the service drof- 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 called of old Drofdens namely from the droves of hogs sent thither and there fed and fatted with mast or pawnage the Driver whereof was vulgarly called Drofmannâ—u The fifth Swilling-land that let out or occupied by Swillings Swollings or Sullings that is Plough-lands 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 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 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 aâ— this day and from good antiquity of the Harflets formerly of the Septvans families both in their time adoâ—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-Ber-land that which was held by the ber- 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 â—ermâ—nnus The eighth smiths-Smiths-land that in respect whereof smiths- 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 otherwise called in the Latine of the times Terra warectata or Terrajacens ad warectam that is land lying or suffered to lie â—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 unlike unto if not the same with the former being superannated land or land with over much tillage
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 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 Amongst other sorts of land our books are full of that called Terra servilis villein-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 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 â—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 ex quo specialiter non onerat See him again cod lib. cap. 36. num 8. at these words Cum teneatur Sockmannus defendere tenementum sâ—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 câ—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. 1â— 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 certâ— 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 charged upon him a Soke I say whereunto â—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 a 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 to 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 in denariis From hence also such a Soke such a Priviledge it is that the Villanum Socagium in the Kings Demesne is turned of 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 'T is 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 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 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
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 Knight-service 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 Knight-service Hence fourthly it is that Burgage a tenure no way smelling of the plough or tillage being currant 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 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. Plough-service 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 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 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 Domesday-book and lesse ancient therefore I perswade my self Socage and Socmanry are not Nunc age carpe viam susceptum perfice munus 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 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 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 To prove Gavelkynd to be a â—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 pro homagio sâ—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 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 so 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 Losse of Dower by marriage before or after assignement 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 is the Tenure Partition and the other properties the Nature Which Solution gives occasion of another Quaere 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 stâ—â—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 iâ—â—em municâ—piâ— 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 Hâ—â—d ideâ— tamen dividundarum haereditatum ratiâ— immutata est Parisiis cum nobiles fundos plebeii nobiliter ignobiles aequojure generosi invitem partiantur To the same purpose our Authour elswhere â—els us that priseo quodem Gâ—llici 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 records thus Anciennement les rotures aâ—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 postâ—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 aâ—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 soâ—â— vectigalibus obnoxio transeat in feudâ—lis clientelae sortem liberiorem Thus he De moribus Parisior pag. 58. Much what one with that in 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 exâ—ndéque vectigalis sundi qualitas esset immutata Thus he whom see also if you please De Domanio Gallicâ— 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-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 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 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 Monks manour in Franc bank 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
part of the land and the third part of all the residue of the lands being Gavelkind did escheat to the King for want of Heir which land is ever since enjoyed under the Kings title by escheat And John Wall upon a trial recovered against White the Devisee Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome and so it was agreed per curiam Pasch 37. El. in C. B. in Halton and Starthops case upon evidence to a Jury of Kent it was then said that it had been so resolved before and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome that the Land is deviseable c. And he that shall conclude upon that place of Fitz Nat. Brev. 198. l. that all Gavelkind Land is deviseable c. may as well conclude that all Lands in every City and Burrough in England is deviseable which is not so as appeareth by Mr. Littleton who saith that in some Burroughs by custome a man may devise his Lands c. And if Gavelkind Lands were deviseable by custome c. Then a man may devise them by word without writing as it is agreed in 34. H. 8. Dyer 53. for a man may devise his Goods and Chattels by a Will Nuncupative so may he likewise devise his Lands deviseable by custome because they were esteemed but tanquam catalla c. and it would be a mischievous thing if all the Gavelkind in Kent should be deviseable by word onely To these arguments and objections against the custome certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof reducible to three heads which to avoid all just suspicion of partiality and prejudice wherewith some zealous advocates and contenders for the custome have been and may again be ready to asperse me I shall here subjoyn together with such answers and arguments by way of reply as I have received from the learned Counsel of the other side in further and fuller refutation of theirs who endeavour to uphold the custome The learned Counsels arguments in behalf of the Custome FIrst they deny the old book of 4. Edw. 2. Fitzh Mortdancester 39. â—o be Lâ—w. But an Assise of Mortdancester lies of land deviseable if it be true that his Ancestour died seized unlesse it appears that the Defendaut claims by some other title But if the Defendant plead that the land is by custome deviseable and was devised unto him it is a good barr of the action Secondly They rely much upon the book of Fitzherb Natura Brevium fol. 198. which sayes that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough or in Gavelkynd which lands are deviseable by will time out of mind c. whence they inferr that all gavelkynd-Gavelkynd-lands are deviseable by custome Thirdly They cite the Treatise called Consuetudines Cantiae in the book called old Magna Charta and Lambards Perambulation of Kent fol. 198. that lands in Gavelkynd may be given or sold without the Lords licence and they interpret the word given to be by will and the word grant to be by deed The Reply to the fore-going Arguments by such as stand in opposition to the Custome AS to the first Objection against the Argument taken from the Assise of Mortdancester they reply thus First they maintain that the Custome alone without an actual Devise is pleadable in abatement to an Assise of Mortdancester as well as the Custome with an actual Devise is pleadable in barr for which there is not only that book of 4. Edw. 2. but also Bracton lib. 1. fol. 272. Ubi non jacet Assisa mortis antecessoris among his pleas in abatement of the Writ having before treated of pleas in barr to it Cadit Assisa sayes he propter consuetudinem loci ut in Civitatibus Burgis c. and 22. Assis pl. 78. where upon the like plea the Writ was abated and Fitzherb Nat. Brev. fol. 196. I. whose authority they think strange to be denied in a matter of Law wherein he was a Judge and yet so strongly relled on in a matter of fact and custome in a place whereto he was a stranger and so was it practised and allowed in Itin. Johan de Stanton 6. Edw. 2. And the reason given by the book why such a custome is pleadable in abatement to this Writ is because the suggestion of the Writ may be true that the Ancestour died seised c. and yet the heir have no title where the lands are deviseable And it is the property of this Writ that the dying seised must be traversed and though the Tenant plead the Feoffment of the Ancestour or other matter in barr that is not matter of Estoppell to the heir as a Fine Recovery c yet must he traverse the dying seised and the Jury shall be summoned and charged to inquire if the Ancestour die quo obiit seisitus fuit c. and so are the books of 9. Assis pl. 22. 27. Hen. 8. 12. Brooke Mortdancestor 1. Old Nat. Brev. fol. 117. and diverse others Nor is there any opinion to be found in any book of Law against that book of Fitzherb Mortdancestor 39. until the 15th of King Charles Launder and Brookes case Crooke lib. 1. fol. 405. obiter upon the trial of this custome 2. Admit that at this day the Law is held to be otherwise yet it appears by all the authorities aforesaid that in those times the Law was taken to be that the Mortdancestor did not lie where there was such a custome but it was a good plea in abatement of the writ And yet Assises of Mortdancestor were then frequently brought and maintained of lands in Kent as appears by Bracton and the books abovesaid 3. Whether the custome alone be pleadable in abatement or the custome with an actual devise be to be pleaded in barr they say it cannot be shewn if it can they challenge them to do it who would maintain the custome that it was ever pleaded one way or other either in abatement or in barr to any one of all that multitude of Assises of Mortdancestor brought at large in that County when in so small a City and County as Canterbury where indeed there is such a custom they shew it often pleaded to writs of Mortdancestor brought there before Roger de Stanton and other Justices in Eyre Secondly To the book of Fitzherb Nat. Brev. fol. 198. upon the writ of Ex gravi querela from whence the ground of this question sprung they answer that the sence and meaning of that book no lesse than the Grammar of it duly observed is no more then that the writ of Ex gravi querela lies there where lands in any City or Town or in Gavelkynd are deviseable by custome Not that all lands in Cities and Burroughs and in Gavelkynd are