infamis ante fuerat per serment nomed videlicet XIV a Iudge Dodaridge in his Treatise of the Barons pag. 155 saith The Yeomanry or Common people for they be called of the Saxon word Zemen which doth signifie Common who have some Lands of their own to live upon for a Câ—rve of Land or Plough-Land was in antient times of the yearly value of five Nobles and this was the Living of a Sober man or Yeoman Cokes 9. part fol. 124. b. But in our Laws they are called Legales homines a word very familiar in Writs and Inquests c. homines legales per non si is habere eos poterit purget se duodecima manu c. so in the next number against those that break a Church or a Dwelling-house it is said se purget per XLII a Iudge Dodaridge in his Treatise of the Barons pag. 155 saith The Yeomanry or Common people for they be called of the Saxon word Zemen which doth signifie Common who have some Lands of their own to live upon for a Câ—rve of Land or Plough-Land was in antient times of the yearly value of five Nobles and this was the Living of a Sober man or Yeoman Cokes 9. part fol. 124. b. But in our Laws they are called Legales homines a word very familiar in Writs and Inquests c. legales homines nomes se duodecima manu c. so it is decreed for a pledge of any Thief that is fled or escaped Plegius ejus habebit IV. menses unum diem ad eum quaerendum si possit eum invenire juret se duodecima manu but this all looks on this side the Norman Conquest let us therefore pass beyond it lest any should be so inconsiderate as to think these cited Laws were not the Laws of the Saxons before the Conquest and in the XXXVIII Law of King Edward we find this concerning a person accused Si testarentur hominem de bona vita 2 legalitate purgaret se judicio comitatus c. and in the dayes of King Ethelred who was much infested with the Danes he took order for the like sort of Tryal which was then one of the sorts of and was called also Purgation where one that was accused was to take this course adjunctis sibi Thanis quinque omnem criminis suspitionem diluito and presently after in the same manner and almost in the same words it is repeated ascitis sibi Thanis quinque crimeneluito c. In the Laws of King Ina it is provided That there should be such a quantity of Land containing a certain number of Hydes requisite for the judging of some men for mis-demeanour as in the XLVII Law Si cui objiciatur furto surripuisse rem aliquam vel furtim subductam admisisse is pro ratione LX. hydarum se culpa liberato si modo dignus qui juret habetur Anglus furti postulatus duplici se purget numero Wallus majore juratorum numero non obstringatur Here you see the two last refert to the first and both to the number of Jurates which what they were was to them so well known that they thought it needless to set it down any otherwayes than by the number of Hydes which form occurrs frequently up and down in those Laws but in the XIX of the said King Jna's Laws I find somewhat that gives an explanation to the former recited Law where it is said Regii villici jusjurandum if he be a Master of a Family or a House-keeper ejus est momenti ac ponderis ut cum LX. Terrae hydis exequari intelligatur in the same manner was it among the Welsh where they were to the number of XLII as in several of the Laws of Howel-Dha and in the Epitome of the Customes of Arcenefeld in Domesday is to be seen which I shall for brevity sake omit Again the very Fabrick and make of all our Laws as now at present is not at all different from the antient way of contexture of them among the Saxons in their * Iudge Dâ—daridge in his Treatise of Nobility writes pag. 121. of a Treatise which he calls very antient denominated De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi Mickel-gemote and their Wittan-gemote both these together having received the Norman denomination of Parliament although the thing is one and the same But that which is of greatest perswasion and force with me is that they had in the time of the Norman Conquest contrary to the common received opinion the same way of making Claim for Lands and Titles as before which the word Calumniare doth signifie and which * Coke upon Lit. lib. 2. cap. 12. Sect. 234. Sr. Edward Coke saith was a word common to both if it proves so then probably used by the Saxons before the Conquest The controversie between Warren the Norman and Sherburn of Sherburn in the County of Norfolke Illustrated by Mr. Campden shews that all things in that age did not pass solely according to his will for notwithstanding the Castle of Sherburn was given by the Conqueror to Warren his great favourite yet upon the allegation of Sherburn that he did never bear Armes against him but was his Subject as well as the other and held his Lands by that Law that the King had established amongst all his Subjects The King gave judgement against Warren and commanded that Sherburn should hold his Lands in Peace This is cited as almost the only Act of favour the Conqueror did whereas it is mistaken for it was an Act of justice and such Cases do frequently appear in that Record called Domesday where I finde among others this concerning the Mannour of Cerdeford in Hantescire held by Hugo de Port. In isto Manerio tenet Picot 11. Vs. dimid de Rege Phitelet tenuit in alodium de Rege Edwardo pro Mannerio Istam terram calumniatur VVillielmus de Chernet dicens pertinere ad Mannerium de Cerdisord feudum Hugonis de Port per hereditatem sui Antecessoris de hoc suum testimonium adduxit de melioribus antiquis hominibus totius Comitatus Hundredi Picot contraduxit suum testimonium de villanis vili plebe de prepositis qui volunt defendere per Sacramentum aut per Dei Judicium quod ille qui tenuit terram liber homo fuit Ex Domesdei Hantescira TraÌ„ TainoÌ„r Regis Alwi filius Torber tenet Rocheborne Uluiet tenuit de Rege Edw. in Alodium pro manerio de ista hida i. virg quam calumniabatur dicit Hund. quod T. R. E. quieta soluta fuit inde habet Aluui Sigillum Regis Edw. Ex Domesdei Hantescire TraÌ„ TainoÌ„r Regis Edwinus tenet Acangre dicit quia emit de Rege Willielmo sed scira nescit hoc de hoc manerio calumniatur Prepositus Regis dimÌ„ hid ad pasturam Boum Regis Scira vero testatur quod
Britains Fol. 14 Repulsed by the Britains ibid. He Conquered not Britain ibid. Calumniare in Law what Fol. 65 Camolodunum Fol. 34 Cambria Camber Cwmrt Cwmraeg Fol. 86 Cantref what Fol. 96 Canutus his Laws of Partition Fol. 141 142 143 Caractacus Prince of the Silures Fol. 34 He asserts the British Liberty ibid. His Protestation before Battel ibid. Castles on Borders of Scotland c. Fol. 79 Cattel of more Valew than Land Fol. 28 Cattel dischaged Fines Amerciaments Fol. 29 Cerdiford in Hampshire out of Domesdey Fol. 65 Cennedl what Fol. 132 Characters of Saxon Fol. 76 Charters of Saxon signed by the Norman Kings Fol. 76 Changes from Villenage to Gavelkind Fol. 157 158 Chief Justice Fol. 69 Chiefs in Urchenfield Fol. 110 Chedder in Somersetshire Fol. 117 Children no Kindred to the Parents Fol. 131 Churle what Fol. 168 Cities their Original Fol. 7 Claudius his Temple Fol. 34 Claim and Recovery of Lands against Normans Fol. 65 Clergy-men Gentlemen by the Welsh Laws Fol. 173 Clown or Colonus what Fol. 168 177 Cohabitancia what Fol. 7 Conan Tindaethwy Fol. 26 Conquest and Conqueror what Fol. 56 Coverfeu Fol. 74 Constantine the Great Fol. 87 Common Laws Fol. 69 145 Counties not antiently in Wales Fol. 94 Competition betwixt Kent and Urchenfield Fol. 106 Cornish understand base British and Welsh Fol. 146 Cottagers and Cottages what Fol. 169 Cuntune in Hampshire Fol. 66 Customs that are antient Fol. 70 150 Customs of the Welsh Fol. 71 132 Cwmmwd what Fol. 96 Custom and Common right Fol. 152 D. D. DAvies his Welsh Dictionary Fol. 98 Danelaege what Fol. 54 57 58 Danish impression on our Laws Fol. 54 55 Daniel Samuel examined Fol. 57 Deeds for Gavelkind Fol. 124 125 126 Deeds explained produced by Mr. S. ibid. Discourses Polemical much irregular Fol. 3 Divisions intestine facilitate Conquests Fol. 16 Division of Wales Fol. 96 Domboc what Fol. 53 54 Domesman what Fol. 110 111 Donald the 5th lost Scotland to the Saxons c. Fol. 163 164 Ãâ—pihinge what Fol. 70 Druids Fol. 16 The British Judges Fol. 17 Their Learning ibid. Their judicial employments ibid. Their determinations of right ibid. Caus'd execution of penal Laws ibid Britain their Gymnasium Fol. 17 They cease Fol. 19 Dubritius Prince and Bishop Fol. 90 Dûn what it signifies Fol. 116 Dun a paix in Scotland Fol. 165 166 Dutch Landscheuten what Fol. 136 137 E. EDgar King his Laws what Fol. 54 55 Confirmed by the Conqueror Fol. 58 Edgar Etheling Fol. 60 Edlin expounded Fol. 49 Edward King his Laws Fol. 55 Confirmed by the Conqueror Fol. 58 59 Edward King his Laws concerning the Welsh Fol. 51 52 Edwin and Morchar Earls Fol. 6â— Edric Silvaticus or Salvage Fol. 7â— Eldest Son among the Britain Fol. 49 English recover Lands againsâ— the Normans Fol. 65 66 English Normaniz'd Fol. 76 England Fol. 87 English setled in Scotland Fol. 162 Engin or Urchinfield their Kings Fol. 44 45 Errors once received and taken for granted Fol. 2 Erdisley in Herefordshire Fol. 79 Escuage antiently Fol. 171 Ethelbert King his Translation of the Welsh Laws Fol. 53 Ethelred King his Laws of Tryal Fol. 64 Eubages British Philosophers Fol. 20 Exchequer when erected Fol. 74 F. FAshions Saxon and Norman Fol. 74 75 Fealty or Allegiance very antient Fol. 55 Fee feudum or feodum what Fol. 170 171. Fee-tayl its original Fol. 170 Feminine conduct amongst the Britains Fol. 33 Feofamentum vetus novum Fol. 140 Fighting forms chang'd by the English Fol. 77 For-gavel Fol. 118 Fortifications of Romans Saxons and Normans Fol. 77 78 79 Forfeiture of Lands upon what Grounds to King William Fol. 67 68 Fortalices Fol. 79 Fortified houses antient ib. Foster-children in Wales divided with Foster-brethren Fol. 28 Free-men or liberi homines what Fol. 108 French do use partition Fol. 11 French tenure of partition Fol. 12 French how used in our Laws Fol. 69 G. GAbles Gablum Gabulum what Fol. 113 114 115 Gabelle among the French Fol. 114 Gablum signifies rent Fol. 116 117 158 159 Gablatores Fol. 117 Gabella Fol. 123 Galfridus Monumethensis defended against Polydore virgil Fol. 83 Gallick customes Fol. 11 Gallick colonyes Fol. 12 Gavel as Mr. S. expounds it what Fol. 112 Gavel-Gyldam Fol. 119 Gavel-man Fol. 120 Gavelate a Writ Fol. 121 122 123 Gavel in denominations Fol. 89 90 In the British Dictionary Fol. 92 What it signifies Fol. 92 93 Not imposed by the Normans Fol. 95 Used in VVelsh subdivisions of Lands Fol. 96 Several sorts of Gavels Fol. 102 103 VVelsh Laws for Gavel-kynd Fol. 103 104 105 106 Gavel-kynd a mark of the Antient Britons Fol. 152 153 The hinge of the British Laws Fol. 155 156 Gavelkind in Scotland Fol. 159 Gavelkind Throughout the Kingdome of England Fol. 4 In all first Plantations Fol. 5 Antiquity of it Fol. 18 137 Among the Princes of VVales Fol. 24 The signification of it Fol. 26 The evill and mischief of it Fol. 27 81. The best use of it Fol. 27 That it is extra Cantium Fol. 89 151 Gavelkind in the Term owes it self to partition Fol. 149 Gavelkind in the Statute of VVales Fol. 98 Practised in Urchenfield Fol. 100 Held rent free Fol. 123 124 Gavel-kind Lands in the King Fol. 128 Granted to Hospitals how Fol. 124 128 129 Granted to Religious Societies Fol. 129 Not to be forfeited for Felony Fol. 106 107 Garrison of Normans in Hereford before VVilliam the first Fol. 78 Gentlemen by the British Laws Fol. 172 173 German Customes antiently Fol. 7 German partition in Principalities Fol. 9. 137 German partition in private Estates Fol. 9 German partition evicted by a jest Fol. 9 10 German Landscheutan what Fol. 136 137 Give-all-kynne Fol. 130 131 Gildas Camberius translated Molmutius Laws into Latine Fol. 154 Glamorganshire Conquered Fol. 94 Gothick work used by the Saxons Fol. 80 Guorongus Vice-Roy of Kent Fol. 41 Gueily-gord what Fol. 105 Gymnasium of the Druids was in Britain Fol. 17 H. HAcana and Westanheconi what Fol. 44 45 Hecanae VVulfhardus Episcopus Fol. 44 Hengist and Horsus Fol. 37 Hengists reception of Kent examined Fol. 37 c. How Hengist had Kent Fol. 45 He altered not the Kentish Laws Fol. 49 Heutland Fol. 90 Henry the first commands the observation of King Edwards Laws Fol. 61 His Laws of partition Fol. 144 Hereditary succession amongst the Britains Fol. 18 Heriot Fol. 108 Herring-gable Fol. 116 Highlanders in Scotland antiently Britains Fol. 160 Hony-gavel Fol. 118 Howeldha Fol. 25 He made not the VVelsh Laws Fol. 153 154 When those Laws ascribed to him were compiled Fol. 97 Hugo de port against Picot Fol. 66 67 I. I Arsey Isle Fol. 11. 95 No venemous Creatures therein ibid Ina King his Laws concerning the VVelsh Fol. 50 51. 64 Joseph of Arimathea Fol. 32 Irish Rhein-taloon or partition Fol. 99 Irish and VVelsh one Language originally Fol. 145 Irish and British Laws agree Fol. 153 Irish understand the Manc and Highland Languages Fol. 146 Ireland
Kingdome of Kent concerning Ethelbert the fourth King after Hengist of whom he useth these words This Noble King having a care for them that should come after brought the Laws of his Country into their own Mother tongue Observe here that by this time from the Saxons first arrival it is probable the Kentish spake the Saxon tongue their Language before was British with the rest of the Island the Country of King Ethelbert was Kont and his Mother tongue was Saxon now Ethelbert finding the Laws of his Country British the Saxon tongue generally spoke brought those Laws out of British into Saxon and this is the naked meaning of it I find * Bedas Eccl. Hist l. 2. cap. 5. ait Ethelbertum Cantiae Regem scripsisse idiomate Saxonice libellum cui nomen indidit DECRETA JUDICIORUM atque judicia illa vel sua memoria tradit suisse observata Aluredus in praefatione legum satetur se ex Ethelberto sumpsisse nonnulla Quid plura Asserius Menevensis olim Aluredo REgi familiaris prodit ipsum Regen Saxonicis mandasse literis JUDICIORUM DECRETA verum ad nos non pervenire injuria temporum this out of the Glossary to the Saxon Laws under this word LIBER JUDICIALIS reference in several places of the Saxons Laws to an Older Book of Laws as if these were but only Excerptions out of it as in the fifth Law of King Aethelstan de irruptione in Templum it is said Triplicis Ordalii sententia convincatur is prout in Libro habetur judiciali compenfato and this in the Saxon is called Dom-boc not of the same nature as the Domesday we have in the Exchequer of which sort Writers do also mention a former both of them being only Surveys or Descriptions of Lands but a Book of Judgement for so doth Doom signifie in the Saxon tongue The like I find in the fifth Law of King Edgar where it is provided that he that doth not observe the Lord's Day funnan dae ges poenas in Judiciali libro descriptas pendito so likewise in the eighth of King Edovards Laws Si quis c. is etiam id compensationis quod in Libro judiciali continetur praestato * Leges Molmutii Duawalloâ—is Gildas Cambrius in Latinum sermonem transtulit Alphredus Magnus in Saxonicum Balaeus in vita ejusdem Molmutii which Book I suppose contained their antient Laws translated out of the British though perhaps since the receiving of Christianity intermingled with much of the Mosaical-Judicial-Laws introduced both by the Brytains and the Zealous-Primitive-Christian-Saxon Kings to which Laws and perhaps may be the effect thereof Eleutherius the Pope or Bishop of Rome counselled and referred Lucius the Brytain long time afore this Age we are now writing of I am not ignorant that they had diversities of Laws as they are improperly called viz. Merchenlaege Westsaxonlaege and Danelaege which not at all relate to a different Law Kind Custom or Usage but to several sorts of Amerciaments Mulcts and Fines for the transgression of one and the same Law I say this was generally so and so is it to be understood in the second of King Alured's Laws in the case of such as violate Sanctuary and is this Mulcta vel ipsa capitis aestimatione prout ejus gentis feret consuetudo c. This difference of Fines and Pecuniary impositions I find frequently but very little besides which is also all the impression that I can perceive the rude Danes made upon the English in relation to their Laws for during their times Edward the Confessour looks not at all upon the Laws as altered but saith they were asleep for above threescore years as in a Discourse concerning them he hath it and magnifies them so highly that in his Restoration of them he would have them thought to be very Antient though he reports them made by his Frand-father * Omnes proceres regni milites liberi hominâ—s univâ—â—st totius regni Britanniae facere debent in pleno folcmote fidelitatem domino Regi coram Episcopis regm Hanc legem invenit Arthuruâ— qui quoadam suit inclytissimus Rex Brytonum ita consolidavit confoederavit regnuâ—n Britanniae universum semper in unum Hujus legis authoritate expulit Arthurus praedictus Saracenos inimicos a Regno lex enimista diu sopita fuit sepulta donec Edgdrus Rex Anglorum illam excilavit c. In leg 35. Edovardi Confessoris Edgar by which he labours to put a repute upon them for Edgar was a Wife and Prudent Prince and did urgently press the Execution of them so that King Edward ascribes them unto him as these very Laws after the Norman Conquest were called the Laws of Holy King Edward and are the same that the Saxon Kings before Edgar did use notwithstanding all which when he comes to the Corroboration of the Privileges and Immunities of the Antient City of London as to their Husâ—â—ings and other Courts he declares the Antiquity of them to be far greater than the Reign of King Edgar and I believe are co-etanious with the antient British Laws if we should grant and allow the same Antiquity to Towns and Cities with the first planting of the Isle he saith Debet etiam in London quae est caput Regni Legum semper curia Domini Regia singulis septimanis die Lunae Hustengis sedere 〈◊〉 â—â—nd at a enim erat olim aedisicata ad instar ad â—â—â—dum in memoriom veteris Magnae Trojae ufque in bodiernum diem leges jura dignitates libertates regiasque consuetudines untiquae magnae Trojae in se continet consuetudines suas una semper inviolabilitate coâ—servat Here I shall observe that as well as London enjoyed her Privileges and Immunities not at all infringed from so great Antiquity notwithstanding the several revolutions under the Dominions of the Romans Saxons and Danes other places of the same Island might also probably enjoy the same favour and hold their Customs Laws and Tenures from as great Antiquity but I have done with this revolution let us now enquire what probability we have to believe that CHAP. IV. William the Conquerour altered not but confirmed the Saxon Laws The antiquity and different use of Juries English claim and recover their Lands by Law against the Normans Of our common Laws our Customs Forfeitures Sealing Coverfeu Exchequer Fashions Language Writing manner of Fights Fortifications and Buildings HAving passed through these mists and clouds of Elder Times let us now come to see what loss or alteration in relation to our Laws and Customs we received by the * The Denominations here of William the first by Conquestor or Conquerour and this the Norman Conquest have stumbled many looking upon it as if it carried with it the enslaving of the Eaglish by his Victorious success over Harald and so are loath to afford it any Courteous reception
non potest habere pasturam nec pasnag de Silva Regis sicut calumniatur nisi per Vicecomitem By this we see they impleaded their rights against the King Ex eodem in eadem Scira Trā Willm̄i Arcuarii Isdem tenet Cuntune quinque Teini tenuerunt de Rege Edw. quo voluerunt ire potuerant Aldredus frater Ode calumniatur unam vs. terre de hoc Manerio dicit se eam tenuisse die qua Rex Edw. fuit vivus mortuus disaisitus fuit postquam Rex Willm̄us Mare transiit◠ipse dirationavit coram Regina Inde est testis ejus Hugo de Port homines de toto Hundredo Here by these you may gather several manners and several reasons and grounds of claimes then potuit ire cum terra sua quo voluit Sed Testes Willielmi nolunt accipere legem nisi Regis Edwardi usque dum definiatur per Regem c. Hugo de Port having the Mannour of Cerdiford from his Ancestors William de Chernet makes claim in his behalf against Picot who held some part of it and makes proof of it by the testimony of the chiefest and best of the Country and also of the most antient of all that Hundred Picot defendant produceth the testimony of the villagers and men of no account and Reeves or Bayliffs who offer their oaths or the ordinary wayes of purgation which was their Ordeales that he that held that Land was a Free man et potuit cum terra sua ire quo voluit that is as not dependant of that Mannour nor of the customes thereof might dispose of his Land as to him seemed best but the witnesses of de Chernet would not accept of the Tryal by any Law but that of King Edward till such time as the King had judged it this you must understand was about the eighteenth year of the King the English still insisting upon the Laws of King Edward which in case they had been repealed it had been a great vanity to have insisted upon them observe further that Picot intitles the King to it though the proof was de vili plebe of the scum of the people but that you may more plainly see what was the occasion and ground of forfeiture of Lands in those dayes and what course was taken for claims thereupon I will exhibit another out of the same Domesday in the same County where under the Title of Terra Tainorum Regis it is Recorded that Alwi filius Turber tenet de Rege Tederlec tres liberi homines tenuerunt in Alodium de Rege Edwardo Dicunt homines de Hundredo quod nunquam viderunt sigillum vel legatum Regis qui saississet Alwinum antecessorem ejus qui modo tenet de isto Manerio nisi Rex testificetur nichil habet ibi duo ex his qui tenuerunt occisi fuerant in Bello de Hastings The inquiry then made for to cause the forfeiture was this whether the Land did belong to any one that was in the battel of Hastings and there did take part with Harold against King William which is the same that Sherborn pleaded for himself against the Kings gift of his Land to Warren that he did never bear Arms against the King But in Berrocshire in the same Record under the Title of Terra Regis it is that Pandeborne jacuit in firma T.R.E. post tenuit Aluuoldus Camerarius sed Hundr nescit quomodo habuit Frogerius postea misit in firma Regis absque placito lege by which we may gather that notwithstanding the entituling the King to the Land yet the Candor and Integrity of the Surveyors at that time was such that they return it to be put under the Kings Rent absque placito lege without either hearing or Law that is unjustly for placita leges at that time were as much observed to evince the right of possession as possibly could be expected But to come to that common objection that our Laws are delivered to us in the French-tongue I shall not take much pains to confute it for that it is evident our antient Laws I mean the Common Laws of the Land are neither written or Printed either in French English or Latine or any other Language that ever I could hear of but still remain like that which Caesar reports of the Learning of the Druids who were our antient judges of the Law not committed to Parchment or Paper and may for ought I can perceive have that manner and Custome continued and retained from the Ages of the Druids Certain reports upon Cases of Law by several excellent Lawyers in our law French are rendred to us but we may as well say the Comment is the Text as imagine those studious illustrations to be the Law and some there are that probably believe because our Common-Laws were never reduced into a form or Body so as to receive a rendition in that or any other Language that the Kings in those first Norman times might undestand them who in their persons did publickly preside heard Causes and gave Judgement that therefore those Cases and Pleadings in French were preserved which Cases gave only the reason of the Justice of the Law as to the diversity of concernments of the Subject and upon this it is that Mr. Campden giving the reason that one of our Courts is called the Kings-bench Bancus Regius sic dictus saith he quod in eo Reges ipsi praesidere soliti c. Judices sunt praeter Regem ipsum cum interesse voluerit Capitalis Angliae Justiciarius alii quatuor and in likelihood the King in person sitting there gave the occasion in those times of the pleadings in French which otherwise could not have been understood by those first Norman Kings that did not understand English they addicting themselves in Letters in Discourses in Messages and in all things to the French Tongue I proceed now to the second particular which is looked upon to receive so great an alteration and that is our antient Customes though much upon this point comprehensively in the former discourse of our Laws hath been said where the Custome was antiently to claim Lands by the Country it continued so at this time of the Conquest as we see in many places of Domesdey-book where it is said Scira dicit Comitatus dicit Hundred dicit c. as in the Saxon Laws all was brought to the Hundreds and Shires so in the 34. Law of King Edward there it is of a ðrihinga which is the circuits of three or four Hundreds in a County et quod autem in ðrihinge definirinon poterat ferebatur in Scyram what could not be judged in the Hundred was brought to the Shire where at a certain place were kept the Pleas of the County and where were to be present take them as I find them recorded Episcopi Comites Vicedomini Vicarii Centenarii Aldermanni Praefecti Praepositi Barones Vavasores Tungrevii et caeteri
third Particular said at that time to be much altered and that is our fashions of which I cannot say much and less if I were to speak of our Fashions now a days considering how much we are become the Frenchmens Apes but yet I know not whether a serious observer can find by any probable Record or by the observation of antient Monuments any such Alteration of Fashion as is here affirmed the same manner and form described to be then in use continued many years after if any thing may be Collected from those Habits expressed in the Monumental Effigies of several Persons of those Ages Another Alteration said to have hapned is of our Language concerning which Mr. Daniel hath not without need made a Retractation and saith that the Body of our Language remained in the Saxon yet it came so altered in the habit of the French tongue as now we hardly know it in the antient form it had and not so much as the Character wherein it was Written but was altered to that of the Roman and French now used I know not what Habit he means but this I can affirm that our Language hath in it little of the French from the Norman Conquest but continued as the Normans found it abating only such changes and refinements as Languages receive in the like space of time there being not to be found so much in the English as the very French it self from its self without any such violent Impression as this Conquest may seem to inforce And I would desire of any one that hath observed the Gradual decay of our Primitive English or Saxon what remarkable difference in any thing considerable there is to be found betwixt that of Edward the Confessour's time and that in which Chaucer wrote◠as also how at this day the Saxon Idiom is yet retained among the Commonalty in many Counties of England understand it more especially to have relation to such places that are most Northern and further distant from London a City of great Forein commerce and the usual residence of the English Court for many hundred years for it is plain to me that the present Scotish hath very little receded or altered from the English or Saxon antiently used and by comparing of the Writers of several Centuries together the refining of the English tongue hath not been considerable from Age to Age till within these last Hundred years so that at this instant I cannot perceive into what habit of the French tongue it is altered nevertheless I am not ignorant how that in those first Norman times there wanted not those of the English who by their Adulation and Sycophantizing earnestly laboured to get themselves into some repute of whom that Age took so great notice that in great scorn they reproved and reflected upon them by that common Ironical proverb Jack would be a Gentleman could he but speak French and as for the Characters said to be changed I have seen Charters of Saxon firmed both by William the Conquerour and after his Reign by his Son Henry surnamed Beauclerk all wrote in the Saxon Letter that Character being yet retained in all such Escripts that concern our Laws and is called by the Denomination of Court-hand And again in some very antient Transcripts and Sermons of Saxon written before the Conquest in their own Characters the Latin therein cited did relinquish the Saxon Letters and did espouse the old Roman Characters I urge this the rather to shew that these alterations are not properly to be fixed as an effect of the Norman Conquest and that Writers running much upon Hyperbolical expressions have laid more upon this revolution than it was truly Guilty of To what Mr. Daniel writes that by this Conquest we received new forms of Fights Fortifications Buildings and concludes generally an Innovation in most things but Religion for this last particle that is of so great extent I have said enough already to shew my diffent to his opinion and it being so large in the affirmative I dare not enter into the discourse of it for dolus latet in universalibus and it would take up too much time but to return to these three first particulars now ennumerated I say that probably in them there might be some alteration for I would not be thought so opiniative to believe the English were so tenacious of their own Forms and Modes as not to relinquish them for better they took up afterwards new forms of Fight and came not short of the Normans either in Valour or Renown in the use thereof but to the difference betwixt the forms used by the Normans and Saxons I leave the Reader to the Description of that most remarkable Battel betwixt William the Conquerour and Earl Harold as it is set down by many Historians by which it will appear that there was much difference in the Management and Use of Offensitive Arms But the English presently by their industry in the practique part of Arms came to be not only famous but also terrible to their Neighbours by their Dexterity and Valour Neither will I dispute their Fortifications yet the Romans left the Brytains excellent Notions thereof which afterwards came into the possession of the English and were not at all short of any the Normans could pretend to be Authors of considering the Discipline and Arms of antient times yet true it is that the English at this time were by case and softness almost reduced to that Effeminateness notwithstanding their Danish turmoils that like as the Britains made use of them and their Ancestors against the Picts so now these Saxons make use of the Normans against the Britains for the preservation of their Welsh Borders of whom a considerable party lay in Garrison in Hereford and were after William the Conquerour had been here above a year hard put to it under the Government of Scrâp as he is named in Domesdey by Edricus Silvaticus or Salvage Lord of Wigmore who at last was taken by Radulfe de Mortuomari his Lands being by the King for this great Service bestowed upon the said Radulfe these Normans which I suppose were introduced by Edward the Confessour the Conquerour took care of in a Provisional Law which carries this Title before it De jure Normannorum qui ante adventum Guilielmi Cives fuerant Anglicani where in the Body thereof it is that Omnis Francigena qui tempore Edwardi propinqui nostri fuit in Anglia particeps consuetudinum Anglorum quod ipsi dicunt Anhlote Anscote i.e. Scot and Lot as we call it persolvat secundùm legem Anglorum but this was not altogether so strange if we consider the Warlike disposition of the Normans in that Age in continual Turmoils with the French and the relation King Edward had to Normandy Their Fortifications were not of any great Variety Judge Dodaridge in his Treatise of Nobllity p. 118. Writing of Knights their disposing of their Estates in those Elder times saith For they did thus
observes originally British coming of their Mael which saith he in the Welsh Vocabulary is in Latin rendred Lucrum emolumentum quaestus as Maelio the Verb Lucrari quaestum facere and yet this Welsh word was not only made Saxon or English but for the great use they had of it a sort of Latin also for we find some Lands were held antiently per Gablum malum The names of Towns were like the antient Nuptials of which King Edward the Confessour speaks betwixt the Saxons and Britains by which they became one Nation So that the Denominations of antient Cities and Places did and do for the most part participate of both as in Durham Dunholne Dorchester the first Syllables being British the later Saxon. Chester is a Saxon imitation of the Latin Castrum for which the Brytains had a word of their own viz. Taer and all those Denominations of places with the faid Saxon termination of Checter are Demonstrations of Roman Fortifications in the time of the Brytains as well as notes of the Saxon intermixtures of which sort there are very many In the like manner may it fall out with this Termination of our Word in Controversie that in case Kynd should chance to be a Saxon affix such a mixture would not prove a thing unusuaâ— in their practice and may very properly be so Conjoyned If Kynd or as it is in the Saxon gecynd signifie the same thing as in Man-kynd and is in Latin rendred Genus humanum aut natura it may then be supposed that the Saxons meeting with the British Gavel and understanding it to be their common Tenure added something to express it to their own apprehensions which being set together would signifie and that properly enough Genus Tenurae For that Kynd of Tenure deserv'd to have a Denomination of greatest remark it being if not the only yet the most eminent and most general Tenure amongst them But having already herein professed * Scepticism Scepticism I will not attempt to impose upon the Reader either the one or the other though either of them may pass without the least injury to the Tenure leaving it to the investigations of some more at leisure Provided that you conceive me not to have forsaken my ground or given back in the concernment of the main part of the word and that which is most material to the original of Gavel although it had as many Terminations as either a Latin or Greek word declined in its several cases and therefore leave it only desiring an acceptation of this Essay in good part without a Condemnation thereof untill a better can be produced And so I pass my Discourse over to treat somewhat CHAP. XII Concerning the German Land-scheutan and their ignorance of Gavel-kynd NOtwithstanding the uncertainty we labour under as to the Termination in the precedent Chapter yet in this we shall shew how that the Saxons and the Germans having the use of this partible Tenure from great antiquity have a particular Denomination for it not making use of any part of the word in question and Mr. S. himself in his 45th page writes thus That such is the nature and condition of gavelkind-Gavelkind-land being not only subject and lyable to what the Civilians in their phrase are wont to call Judicium or Actio familiae herciscundae de communi dividundo the â—eudists Adaequatio Paragium we in our Language call it Coparcenary-land-shifting and the like But withall so subject to it as that Partition doth always accompany Land of that nature and is indeed as inseparable from it as the contrary from Knights-service-land What is here called Coparcenary-land-shifting will afford us one glimpse of Light more to our undertaking For if the Actio de communi dividundo according to the Civillians joyned with Adaequatio and Paragium according to the Feudists be put in parallel with Land-shifting they will all prove to express the same thing as Gavelkind doth For although the Germans have this Tenure of Partition as I have said yet understand they not nor know any thing of the word Gavel-kynd nor of its sound which had it been of a Saxon pedigree assuredly they would have found out the Kindred and Relation it had to their Speech and how all Germany should so irrecoverably lose the Denomination of a thing of so great consequence as this Tenure hath been and is at this day and nominate it by a word that hath not any affinity of sound to our Gavel-kynd and notwithstanding all this that this Gavel-kynd should be of a Saxon original and fostered and known in our Island and after many Centuries of years again Fathered upon them who neither by themselves nor by their Neighbours can fasten any acquaintance with it are Considerations very strange and wonderfull to me The Tenure they have and express it I say by a genuine and significant word of their own calling it Land-skiftan as I find it most commonly written which some expound to signifie Part-land and I think is improperly written Land-shifting For Lands are as well said to be shifted when upon the Father's Decease they descend to one Son as when they are parted among many so that shifting doth not so properly signifie a Partition as it doth an Alienation But properly I find it to be the procedure of a word in Dutch named Scheut or as in the plural number it is Scheuten which is the Denomination for that which the Latines call Surculus and believe that hence it is that we in our English call young Twiggs or Branches Shoots so that Land-skiftan or Land-scheutan is the same in signification with Gavel-kynd both signifying Tenura or Terra familias Progenici Stirpis aut Surculorum which is the Tenure or the Land belonging unto the young Twiggs or Branches of a Family or Generation If you grant me the intire British interpretation thereof But whether it be Denominated as Mr. S. and others have it Land-shifting or this way which I adhere unto I will not make it my business about it to contend only let me re-mind you that this Custom is so farr and freely owned among the Germans even among their Princes in relation to the Dividing and Parting the Lands of their Principalities as ever it hath been in former times among the Welsh and that all those other Tenures by which Lands are now held are to be reckoned and esteemed but as so many Intruders and Novices over all Europe they being for the most part the effects of the policies of Conquerours for the more secure Settlements of their Militia's Which ushers in the matter of the next Chapter which shall be to shew CHAP. XIII When and for what Reasons Primogeniture had the preference ALthough this Theam might give me occasion to look very far backwards to the first granting preference to Primogeniture yet I shall undertake no further than to discourse upon it in contemplation of what Mr. S. saith in his page viz. The Conqueror consented to the succession
and Thule called Britain Fol. 145 Italian partition Fol. 12 13 Juryes Fol. 61 62 63 Juryes among the VVelsh Fol. 64 Jus Angliae both in Socage and Knights-fee Fol. 139 K. KEntish-British Laws not altered by Hengist Fol. 46 Kent invested in Hengist Examined Fol. 37 Kent changes her Gavelkind Fol. 81 Kenneth King of Scots expels the Picts Fol. 163 Kent had four Kings at one time Fol. 45 Kingsland Fol. 44 King Ethelmund ibid King Pibanus of Ergin Fol. 44. 91 Kings Gorvodius Milfrith c. Fol. 45 Kings-Bench Fol. 69 Kindred what it is Fol. 130 131 Knave whence and what Fol. 176 Gods-cnave ibid Knight-service in VVales Fol. 103. 107 Knights-fees descended to the Eldest Fol. 138 Kynd Fol. 27. 130 131. 133 L. Land-scheutan German Tenure Fol. 135 136 137. Land-shifting Landskistan Fol. 136 The Saxon denomination of partition Fol. 143 The proper Kentish appellation Fol. 144 145 Land antiently not valuable Fol. 6. 28 Languages Of Scotland Fol. 76 Saxon English and French Fol. 75 76 English not changed by the Norman Conquest Fol. 75 Welsh the remains of the Gallick and British Fol. 17 Laws of King Edward confirmed by the Normans Fol. 58 59 Lawes-common not written Fol. 69 Law-cases ibid. Laws of England overthrew Norman intruders Fol. 65 Learning of the Druids Fol. 17 Legales homines or Yeomen marg Fol. 63 Lieutenants of the Saxon shores in Britain Fol. 39 Lempster from a Church of Nunns Fol. 44 Lewes in Sussex Fol. 71 Lesley Bishop of Ross in Scotland an Historian Fol. 163 Lewis Island in Scotland hold Gavelkind Fol. 160 Liberty of English-men Fol. 81 Liberi Sokemanni what Fol. 148 Llâ—â— what Fol. 90 Llanfrawtwt a College antiently founded Fol. 90 Llangattock Gafael Meâ—bon ibid Litthfield Chronicle Fol. 58 Loager Loegria Fol. 86 Lonaâ—â— Fol. 87 London a Memorial of Troy Fol. 83 London its Laws very antient Fol. 55 Lower Germany uses Partition Fol. 11 M. MAiles Fol. 120. 133 Mannours or Circuits in Wales antiently Fol. 96 Marquâ—ses Lords Marchers Fol. 42 Mayor whence derived Fol. 49 Menavians understand VVelsh and Irish Fol. 146 Merewoldus a King Fol. 43 Merimnus a King Fol. 44 Mercelin a King ibid. Merchenlaege what Fol. 54 57 Mate-gavel Fol. 118 Mickel-gemote Fol. 65 Military fees Fol. 149 Morgan Fol. 132 133 Monmouthshire Conquered Fol. 93 Mortimer Radulf Fol. 78 Mulcts different in rate in England Fol. 59 Mulmuâ—us Dunwallo British Legisâ—tor Fol. 154 His Laws Translated into Saxon Fol. 54. 154 N. NEifes what antiently Fol. 169 Normans Of their Conquest Fol. 56 57 Of their Alterations ibid. They altered not the English Laws Fol. 57 Of their Laws in Normandy or Neustria ibid. Employed in England before VVilliam the first Fol. 78 Their entring into VVales Fol. 93 Their original from Norway Fol. 58 O. OAth of Allegiance Fol. 55. 61 Oate or Oale-Gavel Fol. 113 Doin what Fol. 174 Ollavintone in Berkshire Fol. 73 Offa's Ditch a limit Fol. 43 Opinions received hardly removed Fol. 1 Ostorius Publius Fol. 34 P. PAganus Pagan what Fol. 168. 175 176 Palatinates Cheshire and Glamorganshire Fol. 94 Pandeborn in Berkshire Fol. 68 Parliament Fol. 65 Parceners per le Custome Fol. 147 148 Partition Used in first Plantations Fol. 6 Used by the Israelites Fol. 8 Antiquity of it by sacred and profane Authority Fol. 9 10 Made use of by Brute to his Sons Fol. 15 16 The Custom of VVales Fol. 28. 103. 156 Among Males and Females Fol. 100 101 Used by the Saxons Fol. 141 142 143 Used by the English Normans Fol. 144 Not in the Term Gavelkind Fol. 147 148 Whether ratione rei aut ratione Terrae Fol. 149 Continued in Wales by Statute Fol. 153 The manner of it among the VVelsh Fol. 156 Pencennedl's or chiefs among the Britains Fol. 23. 97. 132 Jews Fol. 23 Scots Fol. 24 Irish Fol. 97 Pelagian Heresie set against Fol. 90 Penda Pibanus King of Urchenfield Fol. 44. 91 Piben what Fol. 174 Picts They injure and repulse the Britains Fol. 36 The Picts wall ibid. Planters at first the condition of them Fol. 5 Placita what and Pleadings antiently Fol. 68 69 Pleadings in French Fol. 69 Pluntune Fol. 116 Powisland Divided Sub-divided and Parcell'd Fol. 25 26 Polydore Virgil examined Fol. 83 Privileges of Urchenfield Fol. 108. 156 Primogeniture preferred Fol. 82. 138 Price Sir John his defens Hist Brit. Fol. 84 Pride-gavel what Fol. 112 113 Primogeniture in Scotland wâ—y Fol. 166 R. Read-gavel Fol. 119 Reguli or petty Kings Fol. 15 45 Regulus and Rex Fol. 42 Referrees of Howel-dha what they did Fol. 155 Relief Fol. 108 Rents reserved Fol. 7 Rent how to be understood Fol. 115 116 Rents several sorts Fol. 117 Rented Land what antiently called Fol. 119 Rhandir what Fol. 96 Rodeley in Gloucestershire Fol. 112 Roderic the Great Fol. 24 Rogerus Deus salvet Dominas Fol. 177 Rochborn in Hampshire Fol. 66 Roturier of France Fol. 11 95 Rowena Hengist's Daughter Fol. 39 41 Roman Empire parted Fol. 87 88 Romans Altered not the British Laws or Customs Fol. 29 Greedy of Conquests Fol. 30 Their proceedings in the Conquests of Judaea Fol. 30 Of Greece ibid. Of Britain Fol. 30 31 They used words of the British Language Fol. 31 Set up a false Will for the Emperour Fol. 32 The effects of it Fol. 32 33 They desert Britain Fol. 35 S. Saisson and Saisnaeg how to be understood Fol. 86 Saxons They Co-inhabit with the Britains Fol. 37 They defended the Picts wall Fol. 38 Whether they extirpated the Britains or no ibid. They break their Article with the Britains Fol. 38 Their Piracies Fol. 41 They fail in their trust Fol. 42 They expell'd not the Britains Fol. 47 They borrowed many British words Fol. 48 49 They used British Laws and Customs Fol. 49 They intermix their Saxon with British Fol. 50 Their Laws provide for the British Inhabitants Fol. 50 51 52 They used Partition of Lands Fol. 141 Their Nobility who and what Fol. 70 Concerning their Characters Fol. 76 They wrote Latin antiently in Roman Letters Fol. 76 They change their forms of Fighting Fol. 77 Sand-gavel what Fol. 113 Sealing and signing of Charters Fol. 72 73 Serjeanty Grand and Petit Fol. 171 Servi what antiently Fol. 169. 172 Servitude not in England Fol. 81 Scotish Language Fol. 76 Scot and Lot what Fol. 78 Scotland Fol. 87 Scotish-Socage-Land Fol. 159 160 Scotish with their Language had the Saxon Customs Fol. 161 Scotish tongue before William the Conquerour ibid. Scots receive the English temp Willielmi primi Fol. 162 Scotish Tongue when first received Fol. 162 163 Scotish bounds in Scotland Fol. 165 Sherborn against Warren Fol. 65 Shires not antiently in VVales Fol. 94 Soc and Sac what Fol. 177 178 179 Socage Land changed Fol. 139 Socage Land antiently partible Fol. 89 139 Spersold in Berkshire Fol. 73 Surnames when first used Fol. 176 177 Sute and Doom in Urchenfield Fol. 111 Swyddog a Magistrate in Welsh Fol. 93 173 Swine-gavel what Fol. 115
Kingdom c. And after presently discoursing upon what by some Authors hath been affirmed viz. That either the Conqueror or his Brother Odo brought it thither out of Normandy and there planted it by the pattern and practice of his own Country with much reason adds for had it been from thence transplanted probably it would not have been confined to Kent a corner onely of the Kingdom but have spread it self rather over the whole by the Conquerors means whose inclinations and endeavours to propagate and implant here the Customs of his own Country are too eminent and notorious to be doubted of I may by the same reason argue that this Custom being Current in more antient times might have its being not onely in the time of the Saxon Government but its beginning long before And for my part I make no question but in elder times it was the custom of all Europe if not of all the World especially then when the inhabitants by reason of their paucity could so easily afford Ground and Room to their branching and spreading Generations Such thoughts had Thucydides of the first Plantations and Incolae of Greece For it is evident saith he that that which is now called Hellai viz. Greece was not of old constantly inhabited but that at first there were often removals every one easily leaving the place of his abode to the violence always of some greater number and every man so husbanded the ground as but barely to live upon it without any stock of riches and planted nothing because it was uncertain when another should invade them and carry all away especially not having the defence of Walls but made account to be Masters in any place of such necessary sustenance as might serve them from day to day They made little difficulty to change their habitations for the goodness of the Land increasing the power of some particular men both caused Seditions whereby they were ruin'd at home and withall made them more obnoxious to the insidiation of Strangers And a Modern Author out of Homer writing of those first a Salust cited by Mr. Selden in his Mare Claus l. 1. c. 7. de aborigiaibus in conjurat Catilinae saith they are Genus hominum agreste sine legibus sine imperio liberum atque solutum Planters saith In tâ—guriis atque antris habitabant ac sine legibus sine certis sedibus palantes vagerentur Et Trojanis temportbus in Sicilia describit Homerus illus aetatis imaginem Nec fora conciliis fervent nec judice tantum Antra colunt umbrosa altis in montibus aedes Quisquesuas regit uxorem natosque nec ulli Incommune vacat socias extendere curas Then was it I believe that they prudently used this kind of partition which extended it self no further than a division of Stock and Goods by it equally to enable all the Participants to settle to a Livelihood and decline Rapine which was the use and practice of the first Incolae This is also described by thucydides discoursing of the antient Greeks reporting That they in old time and such Barbarians as in the Continent lived near unto the Sea or else inhabited the Islands after once they began to cross over one to another in Ships became Thieves rifling the weaker and made this the best means of their living being a matter at that time no where in disgrace This saith Thucydides of his own Age is manifest by some that dwell on the Continent amongst whom so it be performed nobly it is still esteemed as an Ornament It was in those elder times that Riches consisted not in having a propriety to Land but rather in the numbers of Servants to manage and defend their great Stocks and Herds of Catel And this I guess to be the reason why many have rationally derived Pecunia from Pecus and * It was long after the first Plantation of our Island that Money was in use and longer before the King's Dues were paid in Mony For Judge Doderidge out of Gervasius Tilburiensis a learned man who flourished in the days of King Hen. 2. in his Dialogue of the observation of the King's Exchâ—quer hath in effect as followeth Until the time saith he of King Hen 1. the King used not to receive Mony of their Lands but Victuals for the provision of their House and towards the payment of their Soldiers Wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in parts beyond the Seas needed ready mony for and towards the furniture of the Wars and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realm far distant from their dwellings the King directed Commissions to certain discreet persons who having a regard of those Victuals should reduce them into reasonable sums of mony the levying of which sums they appointed to the Sheriff taking order withall that he should pay them at the Scale or Beam that is to say that he should pay sixpence over and above every pound weight of mony because they thought that the Mony in time would wax so much the worse for the wearing Ex Camden Littleton Treatise of Nobility pag. 118 119. Pecunia in our antient Saxon Laws is often made use of for Pecus And then we must imagine them rather Pastors than Landlords such who changed their Lands at pleasure and their habitations together for the better accommodation of their Stocks wâ—ose wealth was summ'd up as Job's by Servants and Catel But as People multipli'd and their numbers increased so that they had not conveniency of wandring as formerly by the reason that Lands were generally occupi'd according to the abilities of Families in their Stocks and numbers of Catel then did Land also by degrees become impropriated observing nevertheless the same manner of partition of such Lands as before they had done of Goods for as before when they might have had Land enough what should they have done with it without Stock so now when Land was impropriated what should they do with Stocks without Land And for fear of that violence I before discoursed of came first of all Cohabitancia that is living together in Society which without any disgrace was Villenage and so from Families rose Villages and from them Cities By this means we see how men came to be proprietors both of Lands and Goods of which Tacitus makes observation among the antient German customs Caeteris servis except those onely employed about Merchandisâ— non in nostrum morem descriptis perfamiliam ministeriis utuntur suam quisque sedem suos penates regit Frumenti modum Dominus aut pecoris aut vestis ut colono injungit servus hactenus patet Here was their antient manner of living their antient manner of reserving Rents not unlike those which I have met with in Scotland and believe is in
practice in all such places where Pecus is in greater abundance than Pecunia And for the Antiquâ—ty of Partition of Lands we shall find an example thereof in the holy Scripture where it seems to me that the Community of the Law and the Knowledge of it are both taken for granted this being a Case of Law resolved upon a question and it is to be found in the 21 Chapter of Deuteronomy verse 7. where though the Case be in Bigamy yet there we find an Order of Partition which was to be observed even nolenti patre If a man hath two wives saith the Text one beloved and another hated and they have born him Children both the beloved and the hated and if the first-born son be hers that was hated then it shall be when he maketh his sons to inherit that which he hath that he may not make the son of the beloved first-born before the son of the hated which is indeed the first-born but he shall acknowledge the son of the hated for the first-born by giving him a double portion of all that is found with him for he is the beginning of his strength the right of the first-born is his This Law provides that the eldestson notwithstanding the father's hatred shall have his right in all whereof the father was possessed according to the Rule of Right which was thus In case a man had five sons the father's possessions were divided into six parts and the eldest had by right two of those parts By this we may observe the Antiquity of the Partition of Lands and Goods constituted even amongst those People to whom God himself was Legislator and it is observable that it was at the first Plantation of the Land of Canaan where to me it seems that this Law glanceth at the fundamental of Dividing binding up the father to do this rectifi'd Justice to his son got of the woman hated * Which Law as Mr. Selden illustrates it may seem to be grounded upon the practice of Noah Noachus tres filii ejus Semus Chamus laphetus qui velut Adae in generis humaai post diluvium instaurationem personam jam simul induerant Domini pro indiviso rerum omnium sacti sunt Formula donationts est Genes cap. 9.2 Crescite multiplicamini replete terram Pavor vester Tremor vester erit super omne animal terrae super cunctum volatile coeli c. Et scimus ex sacris literis Tellurem à Noachid is seculis aliquot post diluvium esse divisam A Japeto filiis ejus divisae sunt Insulae Gentium in terris suis unusquisque juxta linguam suam juxta familias suas in nationibus suis Quod in Genes 10.25 3. ait Moses Scilicet à Tanai fluvio usque in Mare Atlanticum sâ—u per Magnam Asiae Occidentalis quae in Septentrionem vergit partem praeter totam Europam limitibus juxta familiaruâ— rumerum designatis sedes ut Domini privati accipere Quemadmodum Chamus posterique ejus non dissimili modo quod Austro Africo expofitum est Semus plagas Orientales usque ad Indiam Invaluit etiam Traditio ipsum Noachum perinde ac si totius Dominus in solidum aut Arbiter per comoromissum suisset distributionis hujus sâ—â—l privati hujusmodi Dominii post diluvium instaurationis autorem suisse idque 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 juxta oraculnm divinitus acceptum eamque anno aetatis sua 930. qui à diluvio erat 330. ante obitum ejus vigesimus Testamento firmâsse atque moribundum illud in Semi silii primogeniti maâ—us tradidisse cunctosque simul monuisse nequis corum fratris fines invaderet nec injuriâ alter alterum afficeret quoniam inde ut discordiarum atque bellorum intestinorum causa oriretur foret necessum Selden Mare clausum lib. 1. cap. 4. To which I think fit to subjoyn what he writes in the same Book cap. 8. how this partition was mystically in the mist of their inventions observed by the Heathen Vera sunt quae loquuntur Poetae ut rect è Lactantius sed obtentu aliquo specieque velata Et sic veritatem mendacio velaverunt ut veritas ipsa persuasioni publicae nihil derogaret Fabuloso quod diximus tempore devictis scribunt Titanibus sorte Mundum divisisse Deos fratres Iovem Pluronem Neptunum Iovi Coelum Plutoni Inferna Neptuno Mare cessisse Rejectis autem augis illis de sydereo heic coelo seu aethere de infernorum seu mortuorum regno demum de Terra tota fratrum omnium post divisionem communi quibus patienter sibi imponi vulgus sinebat res ipsâ— quam in larvatâ hâc historiâ latere veterum aliquot docuere alia omnine erat Non Deos hosce sed homines fuisse asserunt Nec coeli sed plagae orientalis ex qua mortalibus lux datur unde superior visa est ideoque coelum dictum Iovem Regem fuisse Plutonem autem accidentis quae solis recessum Noctemque â—stendit unde inferior ea dicta inferna Maris denique interjectarum Insularum Dominum fuisse Neptunum è Lactantio porra scribit Iupiter Neptuno imperium dat Maris ut Insulis emnibus quae loca essent secus Mare omnibus regnaret Iohannis Gryphiander de Insulis Cap. 31. S. 75. de Tribus Noachi filiis rem totam de tribus Diis narratam fidentèr capiat Verba ejus sunt Id â—roculdubio ex partitione Terrarum inter Tres filios Noachi ex quibus Japheto Insulae obvenerunt causam traxit Sir Henry Spelman in Verb. Gaveletum thinking Gavelkind to be of a Sà xon Original affirms it to be brought out of Germany and describes the Tenure of it very justly Qua omnes filii ex aequis portionibus patris adeunt hereditatem and out of Tacitus proves it to be Mos vetus Germaniae Out of whom I shall add by way of explanation what he in his Tract de Moribus Germanorum saith Haeredes tamen successoresque sui cuique liberi nullum Test amentum si liberi non sunt proximus gradus in possessione fratres patrui avunculi This proximus gradus argues precisely for this antient usage although it had not been set down to be Mos vetus Germaniae and deduced from these antient Times we find it also to this day even in regno adeundo among the Princes of the German Empire which was once very wittily evicted by a merry Gentleman or as some say the Duke's Jester who perceiving after the death of one of the Dukes of Saxony the Brethren participants claiming according to custom their Apportionments and Divisions in the Dukedom with the Elder Brother involv'd into high discontents and the Council of the Nobility at a stand what course to take for a reconciliation of them about the parting of the Demesns of the deceased Duke This Man comes in and borrows of the young Duke
the Vaughans of Brechnock-shire and many other Gentlemen who are termed Tylwyth Voreiddig 1. Gwgan ap Blethin 2. Cadivor ap Blethin Gryff Gwyr from whom the Families of Brechn Glamorg and Carmatthenshires come called Tylwyth Howel-Melyn that is Howel-Melyns Posterity Owen Gethyn from whom many Gentlemen in Brechnock-shire are descended called Tylwyth Owen Gethyn that is the Posterity or Tribe of Owen Gethin Here you see this Bard hath not onely vouchsafed unto us the Tylwyths arising out of this short Pedigree but also the very meaning of the word in the English Thus were their Memorials preserved by them who the better to infix them and also for a greater stimulum to Heroick Actions in their Songs deduced from Age to Age delivered to them from their Predecessors did celebrate the Praise of their Worthy Men which Custom in some places they yet retain And of so great account were these Bards that by the Laws of Howel-dha an honorable Provision was made for the chief of them in the Court who was to reside near the Person of the Prince and of so great repute was this Place or Office that to the Dignity was annexed a particular Refugium The use of these Tylwyths was to shew not onely the Originals of Families as if their work had been meerly to run over a Pedigree but the several Distinctions and Distances of Birth that in case any Line should make a failer the next in degree which is the same with the German Proximus Gradus may make an unconfounded use of their interest according to the Rules of Partition by their Gavel I told you before how in all their Pedigrees there was a preference of Primogeniture which was onely in honor and respect and not in unequal divisions of the Patrimony for in these the better to carry a light â—â—d lustre they pointed at the Penennedl of each Family who as the Prince of their Tribe and Kindred was always had in much honor and reverence among them Which respect was like that wherewith the Jews did honor their Chiefs mentioning them with that title of respect in calling them sometimes Heads of their Father's house other-while Chief men and in other places of Scripture they are made known by this account viz. By their Generations after the House of their Fathers and in this form did they inroll their Bands of Soldiers for the War for it is written in the Chronicles 1 Chron 7. and 8 chapters that David assembled all the Princes of Israel the Princes of the Tribes c. unto Jerusalem Numb 25.44 In like manner it is recorded in Numbers that the name of the Israelite that was slain was Zimti the son of Salu a Prince of a chief House among the Simeonites And in the following verse it is remembred that The name of the Midianitish woman that was slain was Cozbi the daughter of Zur he was head of a People and of a chief House in Midian Where this order of Partition was in force there is it most necessary that Genealogies should be most exactly kept and by the Mosaical Law so great care was taken in this point that the Tribes were not permitted to have mixtions together by Inter-marriages And although in many of the High-lands of Scotland they have lost this Tenure yet have they with much affection retained their respects to the Heads of their Clans calling them their Chiefs to whom in former times they gave more respect and were with more obedience commanded than by their Princes The Pedigree before recited I told you I gave to shew their manner of recording their Families of Gentry distinguished from their Pen-cennedl I have another that â—â—ows how tenaciously their Gavel was in force among them even in Regno adâ—unâ—o and how by it in process of time that Principality came to great loss and destruction Roderick the Great being Prince of all Wales had three sons among whom he divided his Territory which three sons were called y Tri Twysoc Talaethioc that is the Three Crowned Princes because every one of them did wear upon his Bonnet or Helmet a Coronet of Gold being a Broad lace or Hatband indented upwards set and wrought with precious Stones which in the British was called Talaeth by which name the Nurses do call the Head-band wherewith a Childs head is bound uppermost at this time as Doctor Powel hath critically observed But that it may be the more plain and perspicuous take it Genealogistically thus Roderick surnamed the Great Prince of Wales 1. Mervyn Prince of North-Wales 2. Cadelh Prince of South-Wales Howel-dha in whom the Territories of North-Wales and South-Wales were united and was the second Legislator of the Britans An. Christi 942. 3. Anarawd Prince of Powis After several Successions which I purposely omit to save the labour of needlesly lengthning the Line there from him proceeded one Convyn-Blethin ap Convyn who being Prince of Powis-land divided it to his two sons 1. Meredith ap Blethin who divided his appartment of powis-Powis-land betwixt his two sons 1. Madoc who had upon the Division that part that was called Powys-Uadoc or Madoc his Powis He died Anno D. 1160. at Winchester and was called the Prince of Powys he was a true friend to the King of England Susanua daughter of Gruffyth ap Conan Prince of North-Wales 2. Gruffyth Prince of Powys had another share of Powys land 1. Gruffith Maelor had for his share Bromefield Yale Hopedale Chirk c. 2. Owen Vachan had Mechain-Iscoid c. 2. Cadogan ap Blethin 1 Owyn Brogynton a base son of Madoc ap Blethin had Dynmael and Edeirneon And Doctor Powel in his Additaments to the Cambrian History in those I mean that he hath set betwixt the years 808. and 810. gives a full Discourse of the Primitive use of this Tenure and also of the Modern abuse thereof For upon those great Feuds that arose betwixt the Descendants of Conan Tindaethwy upon this account of Partition He writes thus Here I think fit to say somewhat of the Custom and Tenure of Wales whereof this mischief grew viz. the Feuds betwixt Brethren the Rending the Government in pieces c. that is the Division of the Father's Inheritance amongst all the Sons commonly called Gavelkind Gavel is a British term signifying a Hold because every one of the Sons did hold some Portion of his Father's Lands as his Lawfull Son and Successor This was the cause not only of the overthrow of all the Antient Nobility in Wales for by that means the Inheritance being continually Divided and Subdivided amongst the Children and the Children's Children c. was at length brought to nothing but also of much Bloodshed and unnatural Strife and Contention amongst Brethren aâ— we have here an Example viz. the History of the Descendants of Conan Tindaethwy and many other in this History He means in Lancarvan's British History * I could wish that those Renowned English Plantations in America would examine of what avail
this in probability and policy may be to them and in particular to the most famous Plantation of Virginia the most fertil and most consonant to English bodies of any whatsoever and will â—ove of greatest use in time to the English Nation This kind of Partition Dr. Powel adds is very good to plant and settle any Nation in a large Country not Inhabited but in a populous Country already furnished with Inhabitants it is the very Decay of great Families and as I said before the cause of Strife and Debate The reading of this passage was it which many years since first set my thoughts at Enmity with the Saxon Parentage of Gavelkind I mean that of gip-eal-cynne give all Kyn This it was that gave me not only some examples of the use of it among the Welch but also an interpretation of half the name for I find the Doctor himself in these Additaments to this Welch History even in this passage I have made use of startled at the latter part of the Composition for he hath written Kind in small different Letters whereas Gavel is wrote in great But to return to the Pedegree by which you plainly perceive the use and the effects of this British Gavel and not only so but the partition as to descent also to the Legitimate Children for the Continuator of Lancarvan's History hath this note upon Owen Brogynton viz. his having such an Apportionment of his Father's Lands being a Bastard That base Sons were not basely esteemed but with the other had part of their Father's Inheritance and so had others through Wales especially if they were stout and of noble Courage I confess this passage did at first stumble me with some others of the like nature till seriously observing and comparing together the Laws of Howel-dha I had as to the British History a great deal of light administred which inforced me from my Incredulity to admire the Observer or Continuator I gather'd from this Law of Howel-dha Si villanus Regis filium vel optimatis ex licencia Regis alendum fusceperit filius ille particeps erit Haereditatis cum filiis Villani post mortem ejus That a Bastard may as probably receive a part in his Father's Estate by Law as that a Foster-child should have a right to a Division of his Foster-father's Land But in these you see by what means the Prinoipality of Wales crumbled to nothing who gave as much opportunity to the Saxons and Normans by this division to Conquer them as by the like Fractions their Ancestors did give facility and occasion to the Romans But to return to our purpose This last division of Roderick the Great mentioned in our Discourse is said to be done According to the custom of Wales which being so then certainly Partition is according to the custom of Wales And this I further Collect that it was not altogether the Land which in former times was so much desired which I gather from that vast proportion of waste Land at this day in that Territory or was aequivalently considered with the Cattel and Stock wherewith that Land was to be managed for those Mulcts and Impositions of Fines and Amerciaments mentioned in the Laws of Howel-dha were very severe because then they were imposed and did proceed from such things as were their greatest Riches and was not only in Money but principally in Cattel of all sorts which was their Stocks and this leads me to examine whether and to shew that CHAP. 3. Neither the Romans nor the Saxons altered our antient Laws Of the antient honour and use of the Reguli Danelaege Merkenlaege and Westsaxonlaege what they were MR. S. saith p. 61. For my part I conceive it viz. Gavelkind may carry an Antiquity far greater than the time of the Norman Conquest c. If this be conceded I shall then go a little further with my Conceptions in this point and labour to make it probable that the Laws and Customs of the Britains were not altered at least so much as by the general current of Writters is commonly received by either the Conquests of the Romans or Saxons Not that I deny but that each of them made some sort of Impression upon them in relation to their Manners Laws and Customs though the main Body of them stood firm and unshaken and first for the Romans who in those times were much Diseased with that Itch of Conquest and too too great a desire of Glory by it being carried out sometimes to attempt divers great things upon the account of Fame that were even unprofitable yet was it not their Manner or Custom when they subdued any Country to alter the Customs or Laws thereof but rather to settle the Conquered upon a Foundation of enjoying their Liberties only being subject to the Title of Conquest so was it in Jury with the Jews to whom in Holy writ you find allowed many things according to their Customs both in permitting of the Ceremonies of their Religion and also in Judicial Affairs In the like manner dealt they with some of the Graecian Common-wealths The Roman Conqueror shewing to one of them a better Division of their Country in relation to the more orderly Existency of their Republick than ever they themselves had before taken notice of and not only so but told them being at that time assembled and expecting some severe Doom that if they would proceed in their antient way of Government they should have their Liberty provided they owned the Romans their Superiors in right of Conquest who only desired such a power over them by their Garrisons the burden and charge whereof should not be considerable to them that in case they Rebelled those they would keep as Doors and Inlets by which they would pour in such Forces as should reduce them to their peace But that such a Defection should be the occasion of the loss of their Freedome And after this manner was the common practice observed by the Romans in their Conquests But to return home I find not that either Caesar in his Commentaries Lucan or Tacitus mention or point out any Alteration in the Religion or in the Customs or so much as the Ceremonies of the Druids and though I must yield that from the Romans the Britains had most part of their Civility in the use of Habits manner of Warring Buildings Baths c. yet can I not Collect any innovation as to their Laws and can boldly affirm that in the midst of these Alterations as we had the Terms of Art and Appellations of things from them so again the Britains left some reliques of their Language among the Romans for what the Inhabitants of this Island had that to the Romans were reputed Rarities to them did they accept of British appellations smoothing them into their own Idiom The Britains at that time were famous for their Art in Contexture of Baskets being things very much by the Romans desired who hearing the Britains calling them in their Language
grand revolution After some time that the Romans had bereaved Britain of those of her youth that had been traâ—â—ed up in Military discipline which should have been the strength of her Walls and force of her Fortresses and had by reason of those great and dangerous Diversions into other Lands left this Island naked and so consequently to shift for it self there was some time passed in Confusions rather than in Government in Usurpations rather than Settlements some one or other here investing themselves with an Imperial Robe till at last by these troublesome means the Government hereof returned into a Monarchy though through many sad and dangerous Convulsions as we may gather out of the Lamentations of Gildas But on the Person of Vortiger devolv'd at last we find it in whose Reign the Picts like an impetuous inundation break in upon the Northern parts and notwithstanding that wonderfull relique of the indefatigable labour and cost of the Romans in that Wall which reached from Sea to Sea yet through it they passed Destroying and Impoverishing all The Britains unable to confront them having lost their Souldiery and the rest of them so effeminated Circa Ann. Salutis humanae 443. that they durst not try their power against them and having ineffectually hazarded and given up their Lives and long in vain implored help and assistance from Aetius the Consul as he is termed by our Writers who was a Roman General in Africk together with one Bonifacius of both which * Hist Bel. Vand. l. 1. c. 4. Procopius writes that they were Valiant and expert Souldiers inferiour to none of their time being men so high in Worth and Spirit that he shall not err that calls them the last of the Romans when the Britains petitioned his assistance it was at that time I believe that by the means of the Empress â—â—â—idia he was revoked from his Command in Africk but from him they gained nothing so that at the last Vortiger engages to their aid certain * This Mr. Selden hath also Collected by his Observations Tantundum saith he sane innuere visus est antiquus scriptor Ethelwerdus de corum advensu verba faciens Illis diebus inquit agilem au herunt Britanni esse in Piratico genere Gentem Saxonum in tota Maritima à Rheno fluvio usque in Doniam urbem quae nunc vulgò Danemarc nuncupatur ac in omni armatura robustam His igitur immensa per nuncios munera mittunt auxilia petunt societatem pacis promittunt Qui antea Mare Britannicum infestare soliti ad ejusdem tutamen ad pacem invitantur Mare claus Lib. 2. c. 9. Saxons who had enured themselves to Ryracies and were Rovers at Sea under the Command of two Brethren Hengist Horsus They with nine thousand Saxons undertook the defence of the forementioned wall against the Picts which they prosperously and successefully performed The entertainment of these people who had will and by degrees power to enforce and subject them was the first Original of those disasters that afterward befell them but this ought not to be conceived to be done at this time with these nine Thousand Saxons for certainly it was by other means Vortiger then King of the Britains although by the common opinion of Writers he is said to have bestowed upon Hengist the Kingdome of Kent by way of remuneration for his services yet cannot I credit that that circuit should be erected into a distinct Regal jurisdiction by the order of one that seemed to be in possession of an entire Regal authority over the greatest part of this Island nor can I disgest the notion of * Susceperunt ergò qui viz. Saxons advenerant donantibus Britannis 〈◊〉 habitationis INTER EO'S ca conditione ut hi militarent c. Bed Eccl. hist l. 1. c. 15. They had Lands assigned to them among them not the Lands and Possessions of the Britains assigned Hengist his forcible usurpation of Kent at this present as a Kingdome for himself and his heirs For the first we must consider Hengist left a very considerable number of his Saxons to defend the wall against the Picts and these must be out of his first number and how can we then rationally imagine that he was able to retain with him such a considerable force as could probably take possession of this Kingdome against the wills or consents of the proprietors for I much question whether all his power conjoyned with many more could in probability have been able to supplant so populous and so understanding a people as Caesar reports them to be or that in any likelihood those inhabitants upon a contract or gift of Vortigers to Hengist would have so tamely submitted themselves to an everlasting exilement from their ancient seats and places of nativity or so easily have suffered the loss of them I very well understand that it may be strongly objected against me that these 9000 Saxons being able to effect that which the Britaiâ—s could not would be able in probability to master this one County but in answer thereunto many particulars are to be considered First that the Saxons were not near that number they first brought in as I said before by taking notice of a proportionable force probably left to guard the wall reflecting upon the quantity that wall would necessarily require for its defence These Pictish Invasions were done at such time when the * Bede reports lib. 1. c. 13 14. of his Ecclesiastical History that the Britains were very sorely afflicted with a Famine and enjoying suddenly a great plenty fell to Luxury and sloath and were so effeminated Britains as Gildas reports them were in intestine feuds among themselves by which it so fell out that they did not go joyntly to assist one another against this common Enemy but by those Quarrels left those nearest to the confines unto their merciless cruelty and we find that when the Saxons observed not their Articles afterwards then the Britains united though too late and were so united before that any Saxon recruites were landed in Britain And those families under the provocation of expulsion probably would have freely ventured their lives rather than be exposed to penury and famine which are worse than death in vindication of their estates livelihoods and what could the Saxon opposition do when in all probability they were enforced to separate to take possession of those Lands and if they in their separation had enjoyed peace and quietness what can be imagined such a small number should have done with so great a Tract of Land as that is Certainly they were not able to manure and cultivate it Again if the Britains had been expuls'd what became of them or where were they replanted this would have received as great a * Or at least such a Note as this action at this Town received from the Saxon Chronologist Anno Christi 490. Hic Ella â—issa urbâ—culam Andredescester obsederunt
Coronatus est in Regem de Wight manu Regia paulo post Quemadmodum Richardus Rex secuadus cum Robertum comitem Oxoniae qui Marchiâ— Dubliniae Dux Hiberniae fait Regem Hiberniae creare destinarat se interea Insulam illam non minore quam Regis tametsi Domini nomen tunc uti etiam usque ad Henrici Octavi tempora posteriora Regis ibi vicem omnina suppleret titulo ac dignitate possidere proculdubio non dubitavit By which Custome brought down so near our age and deduced from the practice of antient times it is no wonder that we find so many in several ages dignified with that Title either as an especial mark of Honour or by the privilege of descent as the Earls of Derby at this present are with the Title of Kings in Man was an antient Custome among the Britains and after them of the Saxons to give the Title of Reguli to all Lords that had the Charge and Custody of * From this it was that in the time of Rich. 2. came up first the Title of Marquesses which is a Governour of the Marches for before time those that governed the Marches were called commonly Lord Marchers and not Marquesses as Judge Dodaridge hath observed in his Law of Nobility and Peerage under the Title of Marquesses pag 31. where in that Chapter he also adds this Paragraph well worth the reading After the Normans had conquered this Land it was carefully observed by them as a matter of much moment and a point of special Policy to place upon the confines and borders of the Britains or Welsh c. not then subdued men of much valour not only sufficiently able to incounter the inrodes and invasions of the enemy but also willing to make on-set of them and inlarge the Conquest These men thus placed were of high blood credit and countenance among their Countrey-men the Normans and in whose faith and power the Conquetor reposed special considence and trust and therefore in their Territories given unto them to hold their Tenures were devised to be very special and of great Importance and their Honours inriched with the Name and privileges of Earls of Chester and for the North-border of Wales created to be a County Palatine and the Barons of the middle Port of the South Marches were adorned in a manner with a Palatine Jutisdiction having a Court of Chancery and Writs onely among themselves pleadable to the intent that their Attendance might not thence be driven for the Prosecution of Controversies and Quarrels in the Law and as for the other part of the South Marches they seemed sufficiently fenced with the River of Severn and the Sea My business hath been to make it probable that these Reguli were Lords of Marches and Limits long before the Norman conquest to which I referr you neither were those Welsh limits fenced by Severn but for many hundreds of years by Offa his ditch Marches and Limits the names of many Honoured with that Title I can shew especially such as were Custodes or Keepers of that Famous Limit betwixt the Mercians and Britains set out by that Renowned ditch which Offa the King of Mercia drew a Memorial of some of them out of an antient * Hist M S. penes Author M S. Chronicle that I have I shall exhibit wherein such persons were not onely called Reguli but also Reges Penda saith this Anonymous Author did spread his Kingdome of Mercia very farr about the year of Christ 620. for he slew in Battel two Kings of Northumberland Saint Edwin and Saint Oswald and three Kings of the Eastangles Egric St. Sigebert Anna. The said Penda had by his Queen Kineswith sive Sons Wolfer Saint Ethelred Saint Merewald Saint Mercelin and one other This without a Name in this place was his Eldest Son Peada and two Daughters Saint Kynesburg and Kyneswith he Reigned 30 years Wulpher was the first King of the Mercians that received the Faith of Christ and he married St. Ermenild the Daughter of Ercombert King of Kent by his Queen St. Sexburge Germanus vero ipsius Westanheconorum Rex Sanctus Merewoldus married St. Ermenburg the Daughter of Ermenred the King Brother of the said Ercombert and by her had three Daughters all of them Saints two of their Names were Milburg and Mildrith and one Son St. Merimnus who being dead his Uncle St. Mercelin did Reign in his stead Here be several Kings whose Names you will hardly find in the Chronicles But * M S. vol. 4. in Biblioth Bodl. Leland in his Itinerary reports out of some Books in his time found in Religious houses that this Merewaldus whom he calls King of the Marches built a Monastery for Nunns at Lempster which in the Britsh is called Lian-Llieni Lleian signifying virgo Vestalis Sanctimontalis in English the Church of Nunns and endowed it with all the Land thereabout saving onely the Lordship now caulid Kingesland after these successions in this small Kingdom I find one Ethelmund was also King of the West anheconi who were the Inhabitants of the North-west parts of Herefordshire certain to be so not only by the places mentioned in that Tract of Land but for that I find one Wlfhard who by Bishop Godwin is doubtlesly mistaken to be put as Successor to Utellus but should have his place betwixt Podda and Ecca Bishops of Hereford in his signing to the Charter granted to the Abbey of Winchelcomb Anno Dom. 811. writes himself thus Monast Angl. pag. 127. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego Wulfhardus Hecanae Quae nunc Herefordiensis dicitur Episcopus consensi subscripsi And Math. of Westminster writes that he was Bishop of Hereford in the year of our Lord 765. at that time when Offa King of Mercia procured of Pope Adrian an Archbishops Seat at Lichfield Many other Reguli were in these Merches for they did consist of several frontier Jurâ—sdictions I have found some very antient as of Pibanus King of Ergin now Urchinfeld the Grandfather of St. Dubritius the Archhishop of Caerleon in the Reign of King Arthur of one Gorvodius King of the same place after him But I cannot let pass that which I found in a Record transcribed into a Register book of one of the Bishops of Hereford certifyed as I guess from Innocent the third concerning a donation to the Church of Hereford wherein the Donor is termed Regulus his name at present I do not remember but reforr it to another place he is said to fortifie his gift to the Church in it to be in plena Regia potestate Milfrith the principal Benefactor if not Founder of the Minster at Hereford is denominated sometimes Regulus sometimes Rex Four Reguli in Kent at one and the same time witnessing to a Charter of one of the Kings thereof In the time of Julius Caesar Cambd. in Brit. Quatuor erant Reguli qui Cantio praeerant Cingetorix Carvilius Taximagulus Segoâ—ax upon
which Mr. Campden makes a jest saying of Caesar quos ille uâ— Reges de vicisse videatur Reges vocat cum tantum Regâ—li fuerint vel melioris no aenobiles Hence I collect that these Reguli were a constitution at least a Custome antiently among the Britains that Guoronged was a Regulus of Kent and that Vortiger did probably bestow no more upon Hengist than the said Honour or Command of or rather in Kent whether it was under the Title of King Count Regulus or Lieutenant it doth not much matter for the Breaches which the Saâ—â—ons afterwards made upon the Britains were such as gave them liberry to take to themselves what Titles and what of other mens Titles it pleased them Hengist had this Dominion or Province not by Conquest or force but assigned unto him by way of remuneration from King Vortiger for his good service against the Picts or else to preserve and engage him to and in his service and having no more than the like Authority as Guorongus immediately before possessed he could not have any colour or Power by that gift to drive out the Britains from their Possessions or so much as infringe their Customes such an Act would much mis-become the interest of Vortiger to suffer or consent that his people should be delivered up to the spoyl and slavery of the Saxons his very restauration I before spake of is a strong argument against that opinion for what protection could the Britains have expected from him that had supposing the Story true joyned with strangers their Enemies in the dispossossion destruction of his own people and Subjects the same Improbability do I impose upon the alteration of Customes I might aske ad quem finem to what end should he alter their Laws and Customs we must look upon Hengist as an Exile out of his own Countrey who me-thinks could not but be ' contented to find himself and his setled in a way of livelihood in honour and plenty rather than venture to put all to Hazard by needless conrests so that I believe Hengist found this custome in dispute among others used by the antient Britains and intermedled not therewith and this especially for that I look upon it as a true and genuine Stemm of the Customes and Usages of the Original Planters remaining here unaltered through these two grand revolutions of Roman and Saxon Power But a little more to cleer it let us consider the State and Condition of this Nation in their turmoyles with the Saxons and examine whether the Britains were totally extirpated from such places in other parts of this Nation where they did spread their conquering Armes I think by comparing the sense of Histories together it will appear probable that where the Saxons are reported to have constrained the Britains into the Angles of this Island the Optimates and military men were they for the most part that were so forced when as the Agricolae and Villani never moved but as well as they could and according to opportunities made the best conditions they could for themselves with the Conquering Saxons So I find in the * In the little History published by Mr. Whcelock found with the Saxon M S. of Bede writing of the setling of the Kingdome of the West Saxons it is thus Recorded that Cerdic and Ciaric his Son six years after they Landed in Britain Invaded that Province Æ¿aerdn ða aerestan Cyningas þe Æ¿est Seaxena land on Æ¿ealum geeodan i.e. iique erant primi Reges qui Occidentalium Saxonum Regnum INTER WALDOS perdomueraâ— Cities of Excester and Hereford that the Saxons there first placed in Garrison were onely the Soulders who permitted the Britains in quietness to live among them and so probably retaining their Lands to follow their Tillage and Trades till an ensuing Peace inclined all to settlement for otherwise it had not been possible for so many Saxon Armies as were necessarily to be employed at one and the same time throughout this Island for the erecting of seven Kingdomes underseven several Generals or Kings to have subsisted had the Countrey Britains I say deserted their Ploughs and dwellings and desisted from their Agriculture neither could so many Villages be so well replenished by the Saxons only in so short a time had not the Britains made their abode and stay in rhem as we may plainly perceive they were by those antient donations of several of the first Heptarchical Kings in which are recited oftentimes the British names of the incolae of several Villages for the fuller understanding whereof I referr the desirous Reader to the most antient donations to Glastenbury made publike by the Collections in Monasticon Anglicanum And I believe my affirmation grounded upon so much probability that notwithstanding the setling of the English Speech so Generally the greatest part of the Inhabitants of England at this day were it possible exactly to derive their pedegrees from those elder times would prove to be Britains take also into this number such that by the time the Saxons had made their Conquests here had from the Romans been made Emeriti having procured a writ of ease from the Wars and by this time were ennaturaliz'd Britains and seldome do we find or hear that an invading Army did out-number the people of an invaded Countrey neither is it probable that the Saxons as soon as they had made way through much opposition to attain their desires would turn Husbandmen and Grasiers considering the Britains never surceased their claimes nor were weary of infesting them pertinaciously endeavouring to re-gain their losses I rather believe they got themselves into possession of those Villages and Towns that they had thus wrested from the Britains and such of them as had not Spirits by Armes to defend their Country against them they kept to be Instruments of attaining their ends in relation to those necessary ingredients of War viz. Money and Victuals And the multitude of words and those of great singificancy which the Saxons borrowed of the Britains do as so many arguments confirm my thoughts in this point There was not probably a continuation of the British denomination of Officers and Offices Bright from the British word Brith which signifies their Waddecolour which was a lightblew Minsh without the acceptation of the British prudence in founding of them from them it is that to this day the Chief Magistrate of a City is called Meyr not derived from Major Greater but from the British word Miret which is custodire to keep and preserve So Edlin which Mr. Somners expounds to signifie Nobilis splendidus inclytus a word found also in the High and Low Dutch very familiarly yet Docter Davies tells us whence they borrowed it and that it is derived from Ed and Llin which signifies haeres or linea Regis and till I occasionally met with it in his laborious Dictionary I confess my self to have been much troubled to have found it in the Laws of Howel-Dha where it
whereas there is no more in it than the plain acquisition or getting of this Realm of England after his pretences from King Edward the Confessour were made known as in the following Tract appears by the constraint and force that Harald put him unto to get his Settlement by Battel with him which word of Conquest is to this day familiarly used in Scotland to signifie Land purchased and Mr. John Skene saith upon the word that Conquestus signifies Lands quhilk ony person acquiris possessis privato jure vel singulari titulo velâ—ti donatione vel singulari aliquo contractu Quhilk is conform to the Civil Law ubi quae stus dicitur lucrum quod ex Emptione venditione locatione conductione vel generaliter ex opera cu jus descendit l. coiri 7. cum seq ff pro Socio and further writing of Lands so purchased concludes Conquestus dicitur ratione primi conquestoris cum transmittitur ad ejus haeredem exuit naturam conquestus induit naturam haereditatis Norman Conquest concerning which also we have so great a plenty of Writers that they almost extinguish the Truth with their Comments and Conceits all the alterations imaginable are father'd upon this revolution and summ'd up by Mr. Samuel Daniel in these words I come to write of a time meaning this Norman affair wherein the State of England received an alteration of Laws Customs Fashions manner of Living Language Writing with new forms of Fights Fortifications Buildings and generally an innovation in most things but Religion I make choice of this Paragraph of so Elegant an Author as Mr. Daniel who hath deserved very well from the Common-wealth of Learning for his ingenuous Observations to examine the particulars of this great mutation so generally imagined which enumeration will also afford us the method of our Discourse concerning that which hapned to the English at that time and first of all concerning the Alteration of our Laws which is the principal matter of our enquiry of which among many Mr. Camden himself hath thus written Victor Gulielmus in victoriae quasi Trophaeum antiquatis pro maximâ parte Anglorum legibus Normanniae consuetudines induxit causasque Gallicè disceptari jussit Yet presently adds propositis igitur legibus Anglicanis Merchenlage Danelage Westsaxenlage quasdam reprobavit quasdam autem approbans transmarinas Neustriae leges quae ad Regni pacem tuendam efficacissimae videbantur adjecit But to evince this let us have recourse as near as we can to the Authors that were of that Age and seriously weigh what they deliver unto us concerning this matter Mr. Selden our of the Litchfield Chronicle cited also by my very much Honoured friend and incourager Sir Roger Twysden introduceth these words Anno Gulielmus Regni sui Quarto apud Londonias consilio Baronum suorum fecit summoniri per universos Angliae comitatus omnes nobiles sapientes sua lege eruditos ut eorum leges consuetudines audiret Et licet idem Rex Willielmus leges Northfolktae Suffolkiae Grantbrigiae Deirae ubi quondam maxima pars Danorum Norwegiensium inhabitabant prius magis approbaverat eas per totum Regnum observari praeceperat pro eo quod omnes Antecessores ejâ—s fere omnes Barones Normanniae Norwegenses extitissent quod de Norwegia olim venissent Sed postea ad preces communitatis Anglorum Rex adquievit qui deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vixerant patres eorum ipsi in eis nati nutriti sunt scilicet leges Sancti Regis Edwardi ex illo die magna authoritate veneratae per universum Regnum corroboratae conservatae sunt praecaeteris Regni legibus leges Regis Edwardi Unde per praeceptum Regis Willielmi electi sunt de singulis totius Angliae Comitatibus Duodecim Viri sapientiores quibus jurejurando injunctum fuit coram Rege Willielmo ut quoad possent recto tramite neque ad Dexteram neque ad Sinistram declinantes legum suarum consuetu inum sancita patefacerent nil praetermittentes nil addentes nil praevaricando mutantes Alderedus autem Eboracensis Episcopus Hugo Londoniensis Episcopus per praeceptum Regis scripserunt propriis manibus omnia quae praedicti jurati dixerunt c. Ingulphus Crolandensis also who was Chaplain to this King William and being himself somewhat concerned in this affair and so the more to be believed as an Agent writes a little more plainly than the last did thus Attuli saith he eadem vice mecum Lundoniis in meum Monasterium leges aequissimi Regis Ewardi quas Dominus meus inclytus Rex Willielmus autenticas esse perpetuas per totum Regnum Angliae inviolabilitérque tenendas sub poenis gravissimis proclamarat suis justiciariis commendârat eodem idiomate quo editae sunt ne per ignorantiam contingat nos vel nostros aliquando in nostrum grave periculum contraire offendere ausu temerario Regiam Majestatem ac in ejus censuras rigidissimas improvidum pedem ferre contentas saepius in eisdem hoc modo and the Title of those Laws is this Ces sont les leis les Custumes que li Reis William grantut à tut le peuple de Engleterre apres le Conquest de la Terre Iceles meismes que le Reis Edward sun Cosin tint devant lui which is in English these are the Laws and Customs which King William granted to all the people of England after the Conquest of the Land and are the same which King Edward his Cousin did hold before him And the like account given by the Litchfield Chronicle is found in the Laws of King Edward which though from him receiving the Denomination yet probably were Transcripts of a Date since the Norman Conquest for that in them is found an express of the Norman Settlement of them in which is also an account of the difference of the Rate of Mulcâ—s betwixt the Saxons and Danis or Norwegians and because of the â—â—ar relation the Normans had to the Danes it is said that King William made choice of those Laws and would have had them put in Execution as the Law of England Quippe cum aliarum legibus Nationum Brytonum scilicet Anglorum Pictorum Scotorum praeponderassent he praised and liked of this Dane-laege best onely this observe if it be worth taking notice of that not onely the British Laws come into the account but also they are set in the first place But King Williams desigment had this Effect and Issue for taking that resolution it is said Quo audito mox universi compatriotae regni qui leges edixerant tristes effecti unanimiter deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vix runt patres eorum ipsi in eis nati nutriti sunt
quia durum valde foret sibi suscipere leges ignotas judicari de eis quas nesciâ—bant Rege vero ad flectendum ingrato existente tandem eum prosecuti sunt deprecantes quatenus per animam Regis Edwardi qui sibi post diem suum concesserat coronam regnum cujus erant leges nec aliorum extraneorum exaudiendo concederet eis sub legibus perseverare paternis Unde consilio habito precatu Baronum tandem acquievit Thomas vero Archiepiscopus Cantuariensis Mauritius Episcopus scripserunt propriis manibus omnia ista praedicta per praeceptum praedicti Regis Wilhelmi Ex illo igitur Die multa Autoritate veneratae per universum regnum corroboratae observatae sunt prae caeteris patriae legibus leges Edwardi Regis Sancti c. Though the King at this time was so unwillingly moved to the requests of the English yet we find that afterwards he laboured all he could to ingratiate himself with them as standing in fear of them For in the third year of his Reign Edgar out of Scotland and the Earls Edwin and Morchar with assistance from Denmark gathered into a body in the North and were there defeated whereupon saith Mr. Daniel the most of these Lords presently after came in upon publick faith given them and were conducted to Berkhamsted by the Abbot Frederick who upon their submission and oath of Allegiance re-taken had their pardon and restitution to grace granted by the King believing it his own concern so much to quiet them that he again took his personal oath before the Archbishop Lanfranc and the Lords To observe the ANTIENT LAWS of the Realm established by his noble predecessâ—rs the Kings of England and especially those of Edward the Confessor Thus we plainly see the Laws that were continued and confirmed were the old Saxon Laws as we have it in this decree of William the Conqueror Ex legib Guil. 1. Hoc quoque Praecipio ut omnes habeant teneant legem Regis Edwardi in omnibus rebus adauctis his quae constituimus ad utilitatem Anglorum And his Son Henry the first took the very same course for amongst his decrees it is that Murdra etiam retro ab illo die quo in Regem coronatus fui omnia condono ea quae à modo facta fuerint justè emendentur secundùm lagam Regis Edwardi and presently after he saith lagam Regis Edwardi vobis reddo cum illis emendationibus quibus eam pater meus emendavit consilio Baronum suorum But let us descend to particulars and view from whence we had our Juryes the great pillar of our Laws and the Bulwark of our freedomes certainly upon a great mistake said to be brought in by the Norman Conqueror concerning which Mr. Campden writing against Polydore Virgil who it seems was of that opinion also hath it thus Nihil à vero altenius multis enim ante annis in usu faisse certissimum est of so general a concernment also was this way of Judgment Cooke l. 2. c. 12. Sect. 234. e. For the institution and right use of this Tryal by 12. men and wherefore other Countreys have them not and this Tryal excels others See Fortescue at large cap. 25 29. Glanvil lib. 7. cap. 14 15. Bracton lib. 3. fol. 116. a. and in antiont times they were 12. Knights This Tryal of the fact per duodecim liberos legales homines is very antient for hear what the Law was before the Conquest Lamb. verbo centuria In singulis Centuriis comitia sunto atque liberae conditionis viri duodeni aetaâ—e superiores una cum praeposito sacra tenentes juranto c. Nay the Tryal in some Cases per medietatem linguae as we speak was as antient in Lamb. fol. 91.3 viri duodeni jure consulti Angliae Sex Walliae totidem Anglis Wallis jus dicunto and of antient time it was called Duodecim virale judicium that in the 31. cap. of the Laws of Hen. 1. it is decreed Unusquisque per pares suos judicandus est ejusdem Provinciae This is the Judgement by our * Judge Dodaridge in his Treatise of Nobility pag. 110. hath this Whereas it is contained in the Great Charter amongst other things in the form which followeth No free mun shall be taken or imprisoned or diseised of his Free hold or his Liberties or Free-customes or shall be Outlawed or Banished or in any wise destroyed nor go upon him but by the Lawfull Iudgment of his Peers on by the Law of the Land by which is to be seen that it was the antient Law of the Land for Magna Charta was only a Confirmation of those antient Privileges claimed by the Barons and people from the first Norman Kings Peers by which we stand and fall and is our English Peculiar for in Normandy the Civil Law is their known and used Law and I believe you will hardly find that that Law takes any Cognisance of Juries whose number were not in all ages fixed or certain but varied into several numbers according to what you shall find cited in several Reigns They were for many Centuries together as at this time at 24. of which 12. to be present and this in the Saxan Laws hath several appellations But to ascend with these Juries up to antiquity we will begin with Hen. 1. and with what he decrees in the 66. Chap. of his Laws Si quis Dei rectitudines per vim deforciat emendet LAHSLIHT cum Dacis plenam Wytam cum Anglis vel ita neget assumat undecim idem sit duodecimus and so presently after concerning Burchot vel Brigbot he saith In Denelaga sicut stetit antea vel ita se allegiet nominentur ei XIIII adquirat ex eis undecim In his vero secundum legem nominati consacramentales vicini babendi sunt quia solus non potuit c. and in Cap. LXXIV concerning a Thief slain it is said juret quod in cognato suo nullum factum erat pro quo de vitâ fortisfactus esset eant alii cum duodecim superjurent ei in munditiam quae ante dicetur so in the Laws of William the Conqueror at Numb 16. Siquis alterum appellet de latrocinio is sit liber homo habeat testimonium a Iudge Dodaridge in his Treatise of the Barons pag. 155 saith The Yeomanry or Common people for they be called of the Saxon word Zemen which doth signifie Common who have some Lands of their own to live upon for a Câ—rve of Land or Plough-Land was in antient times of the yearly value of five Nobles and this was the Living of a Sober man or Yeoman Cokes 9. part fol. 124. b. But in our Laws they are called Legales homines a word very familiar in Writs and Inquests c. de legalitate purget se per plenum Sacramentum alter qui
terrarum Domini diligenter intendentes c. So in the Laws of King Edgar every year let there be said he tƿa scirgemot ðaer beo on ðaer sciregemote bisceoƿ se ealdorman þaer aegþer taecan ge Godes riHte ge ƿeoruld riHte i.e. at the Shire-gemote let the Bishop and Aldermen be and there either of them teach Gods right and the Worlds right which judgement of the Vicenage and power of the County was equally used both in the time of Saxon and Norman Governments And so small was the alteration that hapned at this time that in this often cited Survey Record there among many other of the like nature is this concern of the Burrough of Wallingford in Berrochescire which concludes thus Modo sunt in ipso Burgo consuetudines omnes ut ante fuerant and so where it Records the Customes of Urchenfield it saith Hae consuetudines erant VVallensium T.R.E. id est Tempore Regis Edwardi for the men of Urchenfield in antient Records are called Welsh as this Region is called Wales for in the book of Knights-fees in the Exchequer it is written Arcenefeld in Wales respondere tenetur Daō Regi c. Should I make a parallel of Customes as well as Laws us'd in the times of the Saxons and Normans you would find them all one and both compared with the Laws of Howel-dha to prove the same mostly with them also The pepe in the Saxon Laws is rendred aestimatio capitis and those provided that in case upon an offence it could not be paid neither by the Criminal nor his Kindred then was he to undergo a service for it somewhat of this nature was in the Norman times for among the Customes of LEWES in Domesdey-book I find that Adulterium vel raptum faciens viii Solid iv Den. emendat homo faemina tantundem Rex habet hominem Adulterum Archiepiscopus faeminam This is there set down as an antient Custome belonging to that Town in the time of the Saxons but in the time of Hen. 1. in the 11. cap. of his Laws it is thus upon a general account set down Qui uxoratus faciet Adulterium habeat Rex ejus vel Dominus I believe ejus should be set after Dominus superiorem Episcopus inferiorem and these ƿere's are sound corroborated by that Name in the Laws of Hen. 1. But in short you will find by this Domesdey-book that in most places of England it is certified they had those very Customes in the Norman Government which they had in the time of Edward the Confessour I know there be many jocular tenures but whether all of them that occurr were invented or imposed by the Normans it matters not much because they did not interfere upon propriety nor injure their other Customes One Custome reported to be brought in was the * Iudge Dodaridge in his Treatise of the Law of the Nobility and Peerage of England in his 16 page shews the manner of Saxon signing to a Charter of Henry 8. to his Son Edward when he was Created Prince of Wales and Earl of Chester where it is concluded These being witnesses the Reverend Father Iohn Cardinal and Archbishop of Canterbury c. W. Archbishop of York c. Sealing of Charters but as I have seen a Charter Sealed before the Conquest so since the Conquest I have seen Charters Signed after the Saxon mode both by William the first and his Son Henry that is to say with a great number of Witnesses and Crosses before their Names Edward the Confessour made a Grant of some Privileges to the Church of Hereford and firmed it with a Seal which in one of their Register books is described to be preserved in Panno serico and a memorandum also of the circumscription of the said Seal to be this Hoc est Sigillum Regis Edwardi and in very many places of Domesdey-book it is Recorded that Lands did pass to several people under the Seal of King Edward as in Berckshire under the Title of Terra Ecclesie Abendoniensis it is specified that Anscil tenet Sperfold de Abbate Edric Tenuit in Alodio de Rege Edwardo potuit ire quo voluit c. de hoc Manerio Scira attestatur quod Edricus qui eum tenebat deliberavit illum filio suo qui erat in Abendone Monachus ut ad firmam illud teneret sibi donec viveret necessaria vitae inde donaret post mortem vero ejus Manerium haberet ideo nesciunt homines de Scira quod Abbatie pertineat neque enim inde viderunt brevem Regis vel Sigillum Abbas vero testatur quod in T. R. E. misit ille Manerium ad Ecclesiam unde erat inde habet Brevem Sigillum Regis Edwardi attestantibus omnibus Monachis suis and in that County under the Title of Terra Henrici de Ferieres is that Ollavintone Godricus Vice-comes tenuit de Rege Eduuardo Hanc Terram dedit Rex Eduuardus de sua firma Godrico inde viderunt sigillum ejus homines de Comitatu praeter istas hidas accepit ipse Godricus de firma Regis unam v. terre de qua non viderunt Sigillum Regis You see by these that this Sealing was looked upon in the Saxon times as of great strength and efficacy to their validating of Deeds and conveyances I can willingly grant that the Coverfeu-Bell continued in use till our dayes was an Introduction of the Norman Conqueror and in that there was much Reason and Policy for no doubt but that in some places and Countrys the Norman Souldiers were enforced to lodge dispersedly and so it would be fit and convenient that the Countrey should observe that timely Decorum and Order not onely beneficial to themselves but also to those enquartered whose Guards would be the more difintangled the more they had of freedome from the company and walks of the Countrey people and as the Ringing of the Bell was then so to the same end at this day the Taptoo is used in Garrisons and Quarters by the beat of the Drumm What the inducement to the observation of the Coverfeu might be I know not perhaps it might be the Knowledge of that entertainment which the English bestowed upon the Danes on St. Brices Evening and at this time of the Conquest there were in probability many living that were not only eye-witnesses but also Actors in that Tragedy Another innovation received at this time according to the account of some was the settlement of the Court of Exchequer of which Campden out of Gervasius Tilburiensis thus writes that ab ipsa Regni conquisitione per Regem Gulielmum facta haec curia caepisse dicitur sumpta tamen ejus ratione a Scaccario transmarino which are all the innovations that I at present can remember that are imaginable to be introduced at this juncture which if more were not considerable enough for to be a ground of so much exclamation I proceed to the
the name but what referrs to the Tenure of Partition The Brytains enjoyed that part of Wales in the Saxon Governments and had not any fixed impression upon them by any before the Normans who over this County at last stretched their victorious Armes after many various successes on both parts and stout defence made by the Welsh for their Lands and proprieties enjoying it partly by force and partly by composition and agreement as the private family Histories do manifest which I have seen for there are several Familyâ—s of the greatest note in that Countrey that are able to produce testimonyes of enjoying their Lands and Birth in that circuit of Land for shires and Countreys are not of a VVelsh institution before the Norman Conquest so that by this it is probable they did not subvert all neither were they in quier about Abergavenny after the Reign of Henry Fitz Empress Gyraldus Cambrensis relates a series of their Actions in those parts But to leave these storyes I think it least of all probable that the Normans would borrow a â—entish word to denominate any thing to their British Tenants or plant it there as a Kentish Custome seeing in case the derivation according to Mr S's opinion should prove true this denomination was as much unknown to the Normans themselves as possibly it could be unto the Britains and alike to both of them if the Normans had found a necessity of making an intelligible expression and appellation of such a Custome of Partition certainly I should have met amongst them with the Roturier which I understand is in use over all France at this day and very frequently in Normandy the Island of Jersey parcell of the Norman Dukedome retaining still this Custome to this day under the name of the Roturier whilst her Sister Guernesey hath no footsteps of it but are as different in their Tenures as in the nature of their Soyl for in one as I am informed like as in Ireland no Toads Spiders or Venomous Creatures will live whilst in the other they have them in distastfull abundance But even now I touched upon the Saxon division of Shires and Countyes and told you it was not the British Policy which puts me in mind of that Order that was observed by the Welsh and rectified by Howel-dda in the ordering of his Principality with the carefull intermixture of civil-descents and military disposition wherein we shall find something to our matter in hand worthy the notice the description as Humfride Lloyd hath written out of the Laws and Ordinances of that Prince is in short thus First a Cantref which had its Denomination from one hundred Towns and signifies as much under which was so many Commots which the Welsh call Cwmmwd and signifies Provincia Regio Cohabitancia and confisted of twelve Mannours or Circuits and two Townships there were four Townships to every Circuit or Mannour and every Township comprehended four Gavels every Gavel had four Rhandirs and four Tenements were constituted under every Rhandir Of Gavel I have told you before that it signifies Tenura a Tenure Rhandir is a word that admits not of any proper Sign ficancy in our English speech but is by Doctor Davies rendred Pars aut Sors haereditaria from the Verb Rhannu Partiâ—i distribuere These divisions were set out by him as it were into a proper and peaccable Conveyance and Conduit-pipe for the Lands of his Principality which were lyable to this Partition so that we find in every Township four Gavels which were four great Holds or Tenures out of which I cannot find the Prince had any Rent for that the Gentry held their Lands very free from any base service only subjected to their Military policy and provision the Prince his own maintenance that so he might be obliged to a respect and care of every particular in his Principality was set out in every Cwmmwd or Commot which as I said before confisted of twelve Mannors or Circuits and two Townships which two Townships were belonging to the Prince thorough out each Commot in the Principality of Wales for in the person of this Howel the Territories of North-wales and South-wales were united as himself in the * M S. Penes Authorens Prooemium of his Laws doth declare This Gavel in the description aforesaid seems to be a large apportionment of Land belonging to a * Which by the Irish are called Canfimiy's and are the chief of their Gavels or Rhin-taloon See Davies his Irish reports Pen-cennedl or chief of a Family or Clan and doth per eminentiam signifie the Tenure that is to say their Gavel this being only or at the least most notably known by them So that every Pen-cennedl in his Gavel having four Rhandirs that is sortes or partes Hereditariae ready divided and apportioned for his Cennedl or Generation and not only so but also a sub-division of many Tenements under the Rhandirs shews perfectly a Gavel Tenure or Hold exactly observed even in their general partition of Lands and this so antient at least as the time when Howel-Dda collected these Laws which was about the year of our Lord 942. so that the true genuine Signification of all is Tot partes Hereditariae in Tenura that is each Gavel or Tenure did consist of so many Rhandirs or Hereditary divisions ready parted each of these Tenures being supposed to be so ordered as to admit of a Division and if need were of Sub-divisions also that so a Township might the more aptly be constituted for the execution of this common Tenure and these so holding in or rather by their Gafael were not only the antient Villati or Villani among the Brytains but also the Gentry Lords and Prince himself were subject to it The use of the word viz. Gavel to a proper Signification I have shew'd and that also Extra Cantium to which County Mr. S. doth labour to Monopolize it and the use thereof for several hundreds of year past even at such a time when the Correspondency in probability betwixt the Brytains and Saxons was so small and the Odium so great in respect of the unforgotten intrusion of the last that in that continued state of Warr it was not probable they would have accepted of any Saxon Customs by a name so insignificant to the thing as antiently the Etymology of it was received or so little to the matter as Mr. S's novel Exposition would render it or to the rational use thereof But I have already shewn in the fore-going Discourse in what sense the Brytains have received it and also what Doctor Davies in his Cambro-British Dictionary which in my judgment is an Elaborate and Critical piece hath said and exemplified thereupon for he it is that not only affirms Gafaelu by English Letters pronounced Gavaily to signifie Tenere to hold as before I have said But also Gafael by English Letters spoken Gavel the word in Controversie to be Tenura a hold But for the Statutum Walliae wich Mr. S. discourseth
demeynes soit use solonque le antient usage del lieu dâ—unt en ascun 〈◊〉 le â—ient leu pur usage que le heritage soit departable entre touts les enfants freres sores in ascun lieu que le eigne avera tout in asâ—un lieu que le puisne frere avera tout Here you see several usages and the like with the usage of Warham and all according to the usage of the place which is their Gavel or Tenure But to return to that which is commonly received for Gavelkind which is a Partition among all the Males notwithstanding the existency of Females of which sort there are also many kinds some that consider the Elder as that in Urchenfield others that have a greater respect to the Younger as that in Wales some sort more free other sorâ— more servile yet in Wales it was all called per eminentiam Gavel as being the common Tenure there and indeed by my search among their Laws I could not perceive that they had any other And here I shall recite to you several Laws of Howel-dda one whereof inferrs Knights-service another Wardship and all of them their Gavel under the Community of Partition Ex leg Howeli Boni M S. penes Authorem The first is this Si quis habuit plures filios aliqui eorum vel ownes praeter unum mortui fuerint ille unus hereditatem omnem habebit si potuerit pro heredictate sua Domino respondere Here by Law care is taken that in case all the Sons should Dye except one then that that one ought to enjoy the whole Inheritance to which certainly he had no right that is as to the whole had the other Sons lived and the Law is so general that it referrs not especially to the Eldest or to the Youngest but to any of the Sons who all alike had the same interest and propriety Nevertheless this privilege is under a Condition and that is Sirpotuerit pro heredâ—tate sua Domino respondere this answering to the Lord is a comprehensive term of a Military duty and all other referved Exits of the Land and an those â—aws is the usual expression whereby both Military services and Mailes are understood The Law for Wardship is this Si terram hereditatis sue aliqua Parentela idâ—est Gueily-gord inter se non diviserit quamvis omnibus aliis defunctis non nisi unus unius supersit ipse terram habebit at si de Terra illa utpote deficiens jura sua Regi prestare non poterit Rex terram possidebit donec illesufficienter pro Terra possit respondere In this Law is not only an express of the Tenure of partition but also the service due to the King from the Land and a Title of Wardship to the King untill the service by the proprietor can be sufficiently performed And although Mr. Campden treating of the Court of Wards saith veteri enim instituto è Normannia deducto non ab Henrico tertio yet this shews the Britains had it before the Norman Conquest that our Policy was not wholly derived from beyond the Seas to make out which many writers are very fond but that antiently our Britains had that wisdom in themselves and such Politique Customs among themselves that shew the little need they had of borrowing from others and I believe this is as antient an express of Wardships as may be found certain I am it is the antientest I have met with and notwithstanding the Britains had it amongst them before their acquaintance with the Normans yet that which Mr. Campden writes may be true if he means only the Courts of Wards but the Tenure by Wardship enjoyes that antiquity I before have shewed But a little to consider the form and manner us'd in the composure of these Welsh Laws I observe that frequently it occurrs among them that the expression of the significatum in the Latine is explained by the British Term and was not in those times as some may imagine an ignotum per ignotius but a ready and prompt way to make the Laws facile and easie to the understanding of the concerned Subjects Aliqua parentela doth not so fully explain the design of the Law as it is with id est Gueily-gord which word turned into Latine signifies ex amore lecti aut concubitus and is derived from gwely lectus cubile and gordd Malleus it is c. the mawl of the bedde or the effect of beddmalleating an expression used by the Brytains to difference such Children as were legitimate born in the true bedd of Wedlock from illegitimate or such as were born in bastardy yet for these there was a provision in the Laws but that was ex patris benevolentia here in this Law the Title of partition is made out yet so that in all cases the Land must not be of necessity subject unto it for if the Legitimate Children have not divided the Lands and it should chance that all of them dye except one that one shall have all the Land upon that condition before spoken of But in case that the Land be divided among the Sons and after this division one of them dye what shall become of his part and apportionment This objection is solved by another of their Laws which that it may not want any thing to the full explanation thereof I will bestow the transcribing of it the rather because in all parts it confirms the British Tenure or Gavel and is this Si aliqua progenies inter se dividerit hered tatem post aliqui eorum defecerint pars eorum in manu Regis cadet quia alii partes suas secundum divisionis rationem habuerint here it is provided that the Progenies must inter se hereditatem dividere and then if any portioners dye after the partition the part or portion of the deceased Escheats to the King and the reason and ground thereof is there rendred Quia alii partes suas secundum divisionis rationem habuerunt because that each one had his share or apportionment according to the Rule or Law of dividing or parting But because Mr. S. doth write of the great privileges belonging to Kent by this Tenure I shall make in the following Chapter CHAP. VIII A Competition of Privileges betwixt Kent and Urchenfield MUch of my enquiry hath in these last Chapters been spent about the singularity of the Tenure of Gavelkind in Kent I now proceed to shew a competition in privileges betwixt other places subjected to this Tenure and Kent For that Mr. S. saith in his 53. page Kentish Gavelkind consists of many singular properties which may as well challenge a share and right in the customes name as may that of partition such as dower of the Moyety not to forfeit Lands for Felony and the like I believe not either partition or any of those mentioned privileges have a share or right in the name of the Custome which I shall discourse hereafter nor that
the singular properties of that Land in Kent comes near to that in Urchenfield * Kanc. Rot. Tur. Lond. Claus 8. Rich. 2. m. 2. I grant they are the same in case of Felony for I find it Recorded Rob. Bonehatch was hanged for Felony the Sheriff of Kent seizes on his Land in Chertham held of the Archbishop in Gavelkind the King writes thus to the then Sheriff Quod Reginaldus Dyke nuper Vic. com predicti habuit inde annum diem vastum non obstante quod ex antiqua consuetudine approbata usitata allocata de Ten. que sic tenentur secundum consuetudinem de Gavelkind in hoc casu nos habere non deberemus annum diem neque vastum nec capitales domini inde escaetam set proximi heredes sic convictorum suspensorum haereditatem suam immediate consequuntur felonia illa non obstante this is the right of both and of all Wales I will not here compare the extent of the two Regions together but yet a small matter would perswade me to believe that at this instant day there is as much Land subject to Gavelkind in Urchenfield as there is in Kent And here first let us observe that the Land that is thus partible cannot be held or received to contra-distinguish it from Knights-service-Land for if it be not held by all or most of those tyes and bonds by which Knight-service-Land is invested it must then hold by some other servile or baser Tenures Therefore the honourable services of the Lands in Urchenfield by their Tenure are in gross Recorded in Domesdey book thus In Arcenefelde habet Rex C. Domesd penes Cam. Sccii homines IV. minus qui habent LXXIII car cum suis hominibus dant de consuetudine XLI Sextarios Mellis XX. solid pro ovibus quas solebant dare X. solid pro fumagio nec dant geldam aut aliam consuetudinem nisi quod pergunt in exercitu Regis si jussum eis fuerit These Ninety six men here spoken of I reckon them to be liberi homines yet such as held in Gavelkind and the seventy and three Ploughs with their men I look upon them to be their villani and both liberi villani to hold their Lands in Gavelkind for that I find all their Lands in that Territory which consists of two hundreds are so held to this day You find them free from payments and Customes antiently imposed upon the rest of the Nation because as a special remarque it is said nec dant geldam aut aliam consuetudinem unless it be to march in the Kings Army when they are commanded yet paying as the rest of Wales doth their Tatu-fooch and Talu-ffurn this last being the fumagium there Recorded and is a payment for fire whether Peter-pence or no I am not certain but incline to the negative because it is paid still to Lords of Mannours generally over Wales to this day But to cleer the distinction that I made just now of Freemen and Villains in Urchenfield that so I may not seem to speak without book I gathered it out of the same Record which in the next Paragraph gives a further account in these words Domesd Si liber homo ibi moritur Rex habet caballum ejus cum armis de Villano cum moritur habet Rex unum bovem The first seems to me to be Relief from those that held by Knights-service because his Horse and Armes when he dyed did belong to the King the second to be Heriot both which were antient British customes as you may perceive by the conclusion of all the Customes These men had the Chief Honour in the Army given to them for cum Exercitus in hostem pergit Domesd ipsi per consuetudinem faciunt Avauntwarde reverstone Redrewarde they did lead the Vann to fight and out of the field brought up the Rear These honours were not the least in those dayes I assure you no more than in our age I say these men enjoyed these and many other privileges with their Gavelkind unto this present day which being all compared with the Laws of Howel-dha seem to be the same with them as for satisfaction for murder for burning of houses c. all certified in Domesdey with this additional Paragraph in the conclusion Hae consuetudines erant Walensium tempore Regis Eduuardi in Arcenefeld I know not what could have been said more pertinent they have still this Tenure of Gavelkind and they have those other enumerated Customes derived to them from great Antiquity before the Norman Conquest which are all certified to have been Consuetudines Walensium Tempore Regis Edwardi and this by the convictum est of this Record so that it seems plain that this Custome of partition among the rest was devolved over to them as a Welsh custome which by the Laws of Howel-dâ—a I find was so paramount that unto it as to the Center all other provisionary Laws found among them do point and have reference and not probable to be here planted by imitation of any other forein nation or people But to return again to the competition this Region * Regio de Arcenefeld for so in antient writings it is called hath not only the like privileges in respect of Dower of the Moyety and no forfeiture of Lands for felony but also this that ibi non currit Breve Regis and in the Custody of the Chamberlains of the Exchequer of Receipt there is a Plea thus inrolled In Placitis coram Rege Pasch Anno 9. Majus Edw. 1. Heref. 32. Homines Hundredi de Irchinfeld à tempore quo non extat memoria placitaverunt placita sua habuerunt de omnibus placitis que ad coronam pertinent Sive de Appellis sive de transgressionibus contra pacem Regis solummodo coram Vice-comite Heref. non coram aliquibus aliis justiciaris this was exhibited in reference to some appeal made in derogation of the power of Irchenfeld to the Justices Itinerant but upon hearing it was adjudged thus Ideo Appellum remittitur in Hundredo predicto it was it seems then called a Hundred but in several other pleadings it is called Libertas de Irchenfeld and in case of Appeales or any thing else that was impleaded out of the Liberty I find that the Ballivus Libertatis de Irchinfeld came thither and oftentimes claimed those Liberties which were all ordered unto him that ever I yet could meet with for the use of the Liberty They have within that Circuit a Liberty to Arrest for any Sum of money whatsoever That whoever purchases Lands there may bequeath them to whom he pleaseth In Rot. 20 Ed. 1. penes Camer Sccii Recept as that of the 20 Edw. 1. between the Nephews of Philip de Martinestow and GlodithaÌ„ fil Mauricii fil Wasmaeri which said Gloditha pleads quod unusquisque qui terram habet infra Hundr de Irchenefeld de perquisito suo potest illud
admit But to run over some more of his Gables That which he discourses of in his 30th page is a For-gavel which is rightly rendred foris Gabulum and is defined to be quasi extra vel praeter Gabulum quod Domino capitali debetur and this corresponds with what before I have said that it was a Rent or a Duty besides over and above or beyond the Original contract or bargain The like is in Mete-gavel which is Cibi Gablum a Rent of meat or food Swine-gavel which is porcorum Gablum a Rent of Swine Werke-gavel and Werke-gabulum which is operis Gablum Hunig-gavel which is Gabulum mellis * For before that Sagar was from the Indies brought among us the use of Honey was frequent instead thereof So that I have observ'd in some very antient Rentals as great a proportion of Honey as there would be required of Sugar to seâ—ve such a Family and much reserved to the King in most Counties as appears by Domâ—sdey Rent Honey of which sort in Domesdey you may find much and in the 60. Law of King Ina we find a bere-gafol which is a Rent of Beer or rather Barley as Mr. Lambard expoundeth it For in some Countries of England and in Scotland they to this day call Barley Beer There is also in the 66. of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speaking of a yard of Land which Mr. Lambard renders to signifie Mercede conductam that is hired for Rent or Wages So is it in the Covenants betwixt King Alured and Guthrun the Dane In the second Article where it is said bu tan ðaem câ—oâ—le de on gafollande rit which Mr. Lambard renders thus Siquidem is Rusticus censum annuum impendens non fuerit which I think in English is provided that that Country-man doth not sit on Rented Land for But in the old English as well as to this day in the present Scotch signifies without or wanting c. There I find gafollande is turned into Census which is as much as I have need to make use of or take notice of In the Laws of King Aethelstan it is thus Æ¿ealisc monnes c. ê§ He ðam cyng gafol-gyldan maeg which is thus Translated Wallus si in eas opes creverit c. ut annuum Regi censum pendat which is if a Welsh-man increaseth so in Riches c. that he can or might yield a yearly Rent to the King Such a one perhaps as we call a Subsidy man or a Man in the King's Books So in the sixth of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is if any one Fights in the House of one that payes Rent and in the 22. of the same King that so often recited Law Æ¿ealH gafolgylda Hund tÆ¿ lftig â—cill which is turned into Latin thus Mr. S. pag. 33. Wallus censum pendens annuum c. in the same sense is the word Gavel-man cited by * Many there are that with Mr. Selden account gafol to signifie several things as tributum c. but not in the least with reference to the Tenure he cites the Aâ—â—ales Anglosaxoas In Bibliotheca Cottoniana Anno 1012. Ãa ê§ gafol gelaest sae frið aþas asporene Æ¿aeson þa to ferde se Here Æ¿ide sÆ¿a He aer gegaderode Æ¿as Ãa bugon to þam cynge of þam Here fif feoÆ¿ertig scypa Him beHeton ê§ Hi Æ¿oldon þysne eard Healoan He Hi fedan sceolde scÆ¿ydon id est Tributo soluto amicitiae juramentis praestitis excrcitus ut ante erat congregatus late dispergitur Maneb vit vero cum Rege ex ipso exercitu quadraginta quinque naves ipsique side datâ promiserunt se Terram hanc dâ—fensuros modo eos aleret vestiret Rex Danorum Rex tunc Swanus crat quorum ita pepigit Ethelredus Utrumque autem praestationis quam diximus genus Danegeld Danegeldum seu Danageldum id est Tributum Danicum dicebatur Seld. Mar. claus l. 2. c. 11. Here we may observe that geld is most properly Tribute though in the former part of this Saxon citation Mr. Selden renders gafol by Tributum and properly it doth signifie a payment Mr. S. which hath no more in signification than one that payes a Rent and relates not at all to the Tenure and I believe if seriously looked into that many of these compounds who have this similitude of sounds do not hold under or by the Tenure of partition which if so here were nomen sine re and this last may be a Term as significant for any one that payes a rent in Cumberland as in Kent In this recited page it is that Mr. S. hath rightly fixed his Gavel for saith he one thing more I have to note before I leave Gable Gavel c. that with Mala it fignifies Rents Services or Customs and in his 35th page he addeth by this time the Reader is satisfied I hope saith he touching the true construction of Gavel Gafol Gable or how ever else he shall chance to find it written in each importing Cens i. e. a Rent either in Money Provision or Works To conclude I am of the same opinion with Mr. S. that these intermixtures and compounds do all hold a reference to gafol Gablum or Gabulum that all of them have one and the same exposition yet that none of them have any relation to the Tenure of partition or to any other Tenure besides the Renting or paying of a Rent for Land c. There is only one thing more left to be considered which may seem to have in it some strength and that is in the 31. page of Mr. S. where he cites this postea per quandam consuetudinem quae vocatur Gavelate usitatam in Comitatu isto viz. Kanc de terris tenementis de Gavelkynde pro redditibus servitiis quae à retro fuerint de eisdem per plures annos devenerunt eaedem terrae in manus cujusdam Abbatis c. Now this consuetudo de Gavelate used in the Lands and Tenements held in Gavelkind seems the one to have relation to the other for Mr. S. in the beginning of that Paragraph tells us that this Gavelate was not a Reut or a Service but betokeneth a Rent or a Service with-held denied or detained causing the Forfeiture of the Tenement to the Lord and whereas that Record saith it was used in that County upon Lands and Tenements held in Gavelkind Sir Edward Coke as Mr. S. himself cites him saith Gaveletum is as much as to say as to cease or let to pay the Rent Breve de Gavelleto in London est Breve de cessavit in Biennium c. pro redditu ibidem quia Tenementa fuerunt indistringibilia So that this Brief lay in London as well as Kent and Minshew in his Dictionary upon the word Gavelet exemplifies it by a Case That if any Tenant in Gavelkind with-hold his Rent and his Services of the Tenement which he holdeth of
Hawisia so that sibi in the singular number has not relation to any else but to the infirm Wibert To him it was that the two pence was to be paid and the profits of the Lands in common to all the infirm of that house in perpetual Almes And to Gavel-kind that is to say that all the Brethren of that Hospital should have the like share and propriety in that Acre and the Half as the Sons of any one could have in their Fathers Land of that nature and if not by this way I can find no other to make any sense of it for this clause And to Gavel kind hath reference clearly to the concession and Habendum and not to the Reddendum and if so who are those that should hold it in Gavelkind The Infirmes no for they were a body though sickly that could not dye Nor the Sons or Grand-children of Wibaldus for they had divessed themselves of this Land and invested their decrepit brother Wibert with the rest of the infirmes of that Hospital with it Nor could the Tenant claim any right by this Deed for that it hath not relation to any Tenancies besides Hospitals in those dayes did not use to create unprosetable Tenures to themselves and where Land is said to be held in Gavel-kynd there is an Estate of Inheritance they are Syncategorematical or relatives In the like sense is that Deed which Mr. S. makes his Script 〈◊〉 pag. 184. where RaduÌ„s From wadidit concessit 〈◊〉 Fratribus Hospitalis Sancti Laurentii juxtà Gantunriam by his Deed septem acras terrae meae saith he tenendas in Gavel-kynde de me heredibus meis â—â—berâ— quiâ—â—â— reddendo inde annuatim mihi vel beredibus meis XLII denarios c. pro hac donatione confirmatione dederunt mihi praedicti fratres heredibus meis quinque Marcas â—ierlingorum All that I can gather out of this is that Ralph Erone sold to the Brethren of St. Lawrences Hospital seven Acres for five Mark and reserved a Rent of two and forty pence the Land to be held of him and his Heirs in Gavel-kind which as in the other of Herbaldune so was this to be understood to be to the common land 〈…〉 and behalf of all the Brethren for if not so I desire 〈◊〉 informed how it could ruâ— into the Tenuâ—e of Glaver-lâ—ynd amongst them any other way and here alsoâ—eâ— me caution you to observe that in the first Deed it is saiâ— to be granted in perpetuam Eleemosyndm And 〈…〉 and then comes in with the Reddendum so like wise in the second Deed where the Tenondum and the Reddendum are at a distance that by means thereof it is not probable at all that Gavel-kynde should have any relation to the Reddenda in either and seriously considered doe plainly contain a different use from either Rents or Purchase But to proceed to those several grants produced by Mr. S. in relation to the Term as that of R. dei gratia Sancti Augustini Cantuar Script 4. shere somewhat is wanting I believe it should be 〈…〉 ejusâ—am loci conventus made to Jordanus â—e Sâ—res much his Heirs of XL. acres of Marsh-land be longing to their Mannour of Cistelet Script 6. and that of Alan the Prior and the Convent of Christ-Church in Canterbury unto Theb. de Einesford and his Heirs of fourscore Acres of Land in their Lordship of Northocholt by them to be holden by rent and Sute of Court at Orpinton ad Gavilikende Script 7. as also that of the same Prior and Convent to Stephen de Kinardentone of 〈◊〉 Acres and to his Heirs ad Gaveliâ—hinde Again that Deed of Gaufridus the Prior and the Convent of Christ-Church Canterbury to Joni and his Heirs of a Sheep Pasture in Osmundeseye Tenend Script 8. say they de nobissuccessivè ad Gavel-kynde by Rent and that his Heirs successively shall give de relevio LVIs. and Sute of Court at Leysdum All these Grantees had by the vertue of these several Grants an instatement into the Tenure of Gavel-kind which was an Estate of Inheritance and was to runn in a Parallel line with Lands of the like nature that is that the Sons or Children of the Possessor when Deceased should hold those Lands according to the Rule of partition in Gavel-kynd and there is no difficulty in them as I can perceive all that I find is that the Granters have Created an Estate of the Tenure of Gavel-kind in case there had been none before none of them to my apprehension carry with them any notable Antiquity Least of all to the purpose is that Script 5. in pag. 178. where it is said Predecessores Dni Regis concesserunt Manerium de Wells in com Cant. postea concessum erat in puram perpetuam Elcemosynam nunquam partitum fuit nec est portibile that is it was never parted nor is partible to which all that I can say is that it never was nor is like to be so holding Gavel-kynd-land But the passed discourse in this Chapter only shews the Nature and Tenure of such Lands And makes nothing at all to the Etymology or the investigation of the true derivation of the word in contest To conclude Mr. S. in page 150. draws from his several discourses a double Consectary as he is pleased to term it 1. That the King may hold Land in Gavel-kynde I must needs approve of it and in case the King doth hold such Lands and at his decease leaves several Sons behind him they must part it and that Princes have so done I have already proved by the several examples of the Princes of Wales and of the German Empire 2. That the King holding Land in Gavel-kind in case he shall grant it away to any Religious House in puram perpetuam Eleemosynam in frank Almoign it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the Religious men shall infeoff with it The first part of this I grant for if such Lands be given to any Religious society they remain partible as to the profits of them that is to say among the Society and so doth Land of any other nature whatever in the same manner being vested pass into a partible Quality that is the whole body having an Interest all members of that body receive part and share of the benefit but for any other sort of partition I cannot fancy how it should be among them And then again it doth not necessarily follow that those that are by this Society interessed with the holding of those Lands under them should hold them in the Tenure of Gavelkind for by such a Grant as I said before in this Tenure of Gavel-kind the said Society or body divest themselves of the fee-simple and invest the taker with an estate of inheritance And again this must have a full reference to the Society their manner of granting it and then it may
equal Portions but according to Right to this I answer I have shewed before several sorts of partible Tenures and none of them opposite in Condition or Nature but that they may all come under the Genus of Gavel-kynd and all those Partitions although not by equal Portions yet are all according to the right of Gavel-kynd which I think is sufficient to make them appear Members of this Tenure But let us examine under what consideration the Saxon Kings had this Tenure as it was diffusive over England in their Laws And first of all those Laws of King Canutus wherewith Mr. S. is so ill satisfied He after he had very piously taken care for what concerned the Worship of God by the counsel and advice of the Wise-men of his Kingdome on ðaem Halgaâ— midÆ¿intres tid on Æ¿intanceastre in the holy Mid-winter-tide at Winchester which Mr. Lambard expounds to be Christmas enacted several Laws with this Proaemium before them Ãis is ðonne seo Æ¿orldcunde gerednes ðeic Æ¿ille mid minan Æ¿itenan raede ê§ man Heald ofer eal Englaland that is This is then the worldly behest that by the counsel of my Wise men that men hold over all England by which we may perceive his Laws had an Universal extent over the whole Kingdome and them we find to be Built upon the Basis of Partition So in his 68th Law which is thus rendred Sive quis incuria sive morte repentina fuerit intestatò mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur Hereoti nomine sibi assumito verum eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito which in the Original is Ac beo be His diHte seo aeHte gescyft sÆ¿iþe siHte þife cildan neh magon aelcum be ðaer maeþe de Him togebyrige which is as I conceive thus And by his judgment let the Estate be shifted or rather divided according to right Wife and Children and next of Kinn to each one according to that proportion that belongeth to them this Shifting if the word signifies so or Division must be according to Right Where by the way note that the Saxon word to them known was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that they made no use of the word Gavel-kynd But this was a general Law and as I said before several places had their several manners and proportions of this Tenure of Partition yet all those Custom were to be parted and descend according to Right We find somewhat to the same purpose in the 70th Law of King Canutus Porrò autem quam maritus sine lite controversia sedem incoluerit eam conjux proles sine controversia possidento Sin quae in illum lis fuerit illata viventem eam heredes ad se perinde atque is vivus accipiunto and in the 75th Law it is provided that if any in the Army before or in the presence of his Lord Dye fighting 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let his Heriot be forgiven and let his Heirs succeed him in his Goods and his paternal Lands and let it be Shifted or Divided according to Right Which Law seems to be word for word found among the Laws of Edward the Confessour where I find qui in bello ante Dominum suum ceciderit sit hoc interra sit alibi sint ei relevationes condonatae habeant haeredes ejus pecuniam terram ejus sine aliqua diminutione rectè dividant inter se Which Laws did also take place among those that William the Conquerour confirm'd as in the 36th Law that passeth under his name Si quis intestatus obierit liberi ejus haereditatem aequaliter dividant Now the collection from hence lyes naturally thus that that Law which generally reacheth to the behoof of his Children or the Descendants of such as Dye Intestate is the most genuine Law for this Law provides that upon some emergent accidents as dying Intestate or in Battel or some such suddain Chance that these notwithstanding the Land shall run in its proper Chanel of Partition so that these occasions should not attain the power of altering the course thereof which not meeting with such an Obstruction would have without any scruple had its natural course of Partition The like was not only in the knight-service-Knight-service-land spoken of to be in King Alfred's time but also in all their Bocland and other Lands that had the force put upon them by Testaments or Deeds This partition came yet a little nearer to us for in the 70th Law of Hen. 1. upon the account of Partition or Dividing Provision is made that Si mulier absque liberis moriatur parentes ejus cum marito suo partem suam dividant by which I understand a Division of parts upon a part before received And he that wrote the Glossary to the Saxon Laws upon the word Terra ex scripto saith Haereditatem vero temporibus illis non quemadmodum apud nos solus aetate Maximus adibat verum ad filios omnes aequaliter fundus lege veniebat quod illi viz. Saxones Lande fcyftan dixerunt Cantii hac nostra memoria eodem vocabulo to shift Land id est herciscere fundum partiri appellant By which it seems the proper Kentish word is Shifting-land as by this Glossators judgment who I understand is a Kentishman which if so let them be content with their Saxon Land-shifting and let us alone with our Gavel unless they will be pleased to own their true * The Britons Patrons The Laws I confess that I have lately cited do rather glance upon the Custom of Partition because it is supposed and taken for granted that that Custom was so Paramount that there was little need of expressing thereof which lies so Couched there as it doth amongst the Welsh Laws And are like our common Laws known to all yet not expressed generally received yet not written In the 78th page of Mr. S. we are still upon the Tenure in question is cited Davies his Reports of the Irish custom de Gavel-kind which Book I have seen and to it I say if the Irish know the word by which Davies denominates the Custom among them it further confirms me in my opinion of the British Etymology thereof * Seld. Mare Claus lib. 2. cap. 1. Scotland and Ireland were antiently reputed Britain Hiberma 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicta est Ptolomaeo Mahumedes Acharranides Arabs Mathematicus egregius qui ante annos 900. floruit Terrae latitudinem inquit observantes à loco lineae aequalitatis Aequinoctialis versus Septentrionalem partem insula Tile quae est in Britannia ubi est majoris diei longitudo 20. herarum eam determinari deprehenderunt Eriam alii Thulen pro ipsa Britannia usurpacunt seu Anglia Albategnius de Oceano quà ab Hispanis respicitur verba faciens In co inquit à Septentrionali parte sunt
Insulae Britannicae quae sunt XII post haec ab inhabitationibus elongatur quo procedat ignoratur for the difference betwixt the two Languages is not so great but that we may upon good reason believe they were one and the same antiently nor so great a Dissonancy at this day between them but that the footsteps of a former union may easily be observed and * Mr. Selden observes a little of the use in the Defusedness of the antient Language saying Corwallensea in Anglia linguâ semper usi sunt Cambro-britannicâ saltem velut Dialecto variatâ uti etiam Aremorici in Galliis Manniae item Insulae incolae Hibernicâ unde tamen nemo est hominum qui velit sequi aut hanc Angliae Regibus quâ Hiberniae sive Domini sive Reges fuerint parere aut illos ex Cambro-Britannici principatû jure aliqâ— principibus suis subjacere Marc Claus lib. 2. cap. 19. the progress of Languages is a thing very well worth the observat on For by sundry discourses with several intelligent persons concern'd in the Languages and somewhat upon my own Observation I can make it out that if one of Base Brytany meets a Cornish-man that speaks the Cornish they with small difficulty will each understand the other the very Denomination of that Country being British for Armorica is derived from At Mor which hath no signification but from the Welsh and is upon or near the Sea with which the situation also agrees let a Cornish-man pass into Wales he will understand the Welsh and be understood of them A Welsh-man meeting with an Inhabitant of the Isle of Man that speaks the Manc-language both of them will understand one the others meaning An Inhabitant of this Isle a Menavian meets in Ireland among the Irish an agreeable Intelligence and the Irish with great facility communicate with the high-High-land Scots in their several Dialects intelligibly So that animadverting this Progression as I have linked them much may be inferred of Originals Customs and Manners among all of them having found the foot-steps of Gavel-kind by the Saxons deduced to the Normans and not altered by them Concerning which I have been larger before and in my next Chapter shew CHAP. XV. That in the Term Gavelkynd is not Partition Of free Socage and other Customs concerning Gavelkynd extra Cantium of the Antiquity of the Laws of Howel-dha THat in the Term viz. Gavel-kynd there is not any Partition is plain both by what Mr. S. apprehends of it thinking it to be derived from Rent and to signifie Genus Gabli vel redditus nor by what I have given in and exhited for my sentence that it signifies Tenura the â—enure per eminentiam of the Family or Genus Tenurae and so consequently may serve for an answer to one part of the question put by Mr. S. in his 42d. page where he saith Our next enquiry shall be whether Partition owe it self to Gavelkind either ex vi Termini or ratione rei and gives his opinion with me that ex vi Termini partition doth not owe it self to Gavel-kynd and in some considerable cases it is not enforced in the very use of it for in case a Father Dyes possessed or seised of such partible Gavel-kynd-land and leaves but one Son behind him this Land is not then to be parted which if it had been ex vi Termini it must have either ceased its use and force or else there must have been found out some other near Relations with whom the sole Heir had been constrained to a Partition the like whereof I could never read or hear was ever done This was very well understood by Littleton Lib. 3. Sect. 265. and explained by Sir Edward Coke in that Chapter of Parceners per le Custome for Sons saith Sir Edward are Parceners in respect of the Custom of the Fee or Inheritance and not in respect of their persons as Daughters and Sisters be c. And out of Bracton citeth this Et sunt participes quasi partem capientes c. ratione ipsius rei quae partibilis est non ratione personarum quae non sunt quasi unus haeres unum corpus sed diversi haeredes ubi tenementum partibile est inter plures cohaeredes petentes qui descendunt de eodem stipite semper solent dividi ab antiquo for such Lands belonging to a Family relate only to the Males in case of their existency but if not then to the Females So also we have it observed by Glanvil who denominates such as hold by this Tenure of Partition Liberi Sokemanni of whom he writeth quibus mortuis dividetur hereditas inter omnes filios si fuerit Socagium id antiquitùs divisum salvo tamen capitali messuagio primogenito pro dignitate Aesneciae suae ita tamen quod in aliis rebus satisfaciet aliis ad valentiam Si vero non fuerit antiquitùs divisum tunc primogenitus secundùm Quorundam consuetudinem totam haereditatem obtinebit secundùm autem quorundam consuetudinem postnatus filius heres est I shall not enforce any thing from the Custom of preference of Primogeniture to Socage Lands which were such as were non antiquitùs divisae and those to be but secundùm consuetudinem Quorundam which expression signifies a diminution both in respect of Age and Community nor of the Tenure which we call Burgh-English which whether brought in by the Saxons because of its name I cannot tell But concerning that which Glanvil setteth down as the most common Custom of the Kingdome and most antient as in his time it was received to be and the intent of his Paragraph which is to Counter-distinguish the Tenure of this partible Land from the Tenures of the Military fees where the eldest Son in England still Inherits of which sort there were not so many when William the Conquerour took his Survey of the Kingdome as after times did bring them unto when that no Land was permitted to be held free from the Military tenure not excepting the very Lands of the Church But he being so plain I shall not trouble you with a Comment and return to the subject of this Chapter which is that Partition ex vi Termini doth not owe it self to Gavelkind no rather Gavel-kind to Partition for I believe when at first this Partition was used and received into a common Custom those Users were enforced and obliged to find and invent a word by which their Custom might be intelligibly expressed rather than to make a Custom to the signification of the word but where the Custom of Dividing under the Title and Term of Gavel-kind was once received and setled with its appurtenances there it inferrs Partition and passeth as a common Law not only in Kent but in Christendome also To what Mr. S. saith by way of objection out of Bracton that he is express for a Partition ratione rei vel ratione Terrae if by it Relation
Board or Table and Cotarii were Cottagers such as dwelt in a Cottage * Anno 4. Ed. 1. Stat. 1. that is to say a House without Land belonging to it and comes from the Saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is the same with Tugurium and Tectum in Latin a â—egendo so as this is in signification a Cover or Shelter because those small Habitations were only made to cover them from the Sun and Weather I am not ignorant of that great mistake the whole Current of Writers have run into those whose Works have been published within these last 300 years where they generally endeavour to load all the indignities of Tenures of Servility and Vassalage upon this Norman change I deny not but that some were at that time introduced especially many Jocular Tenures which were the effects of private contracts betwixt the Lord and his Tenants and not of any general concernment but hence I cannot yield to conclude that all Tenures of Servility were of their introduction Mr. S. continues in his opinion in the 104th page where he writes That Fee-simple Fee-tayl Fee-farm Grand petit Serjeanty Escuage Burgage Villenage c. being all of the Norman plantation and we by them saith he at least since their Conquest of us brought acquainted with them c. perhaps those compounds might be the effect of the consultations of some of the Kings of the Norman race but for the word Fee Minshew discourseth very well upon it for saith he our antient Lawyers either not observed from whence the word grew or at least not sufficiently expressed their knowledge what it signified among them from whom they took it Feudum whence the word Fief or Fee commeth signifieth in the German Language * In like manner doth Mr. S. labour to deduce it from a Saxon original p. 107. Beneficium cujus nomine opera quaedam gratiae testificandae causa debentur and our of Hotoman saith that by this name go all Lands and Tenements that are held by any acknowledgment of any superiority to any higher Lord so is all the Land in England except the Crown land held that is of Feudum or Fee for he that can say most for his Estute sayeth but this Seisitus inde in Dominico meo ut de seudo which is I am seised of this or that Land or Tenement in my demain as of Fee which is no more than if he should say It is my Demain or proper Land after a sort because it is to me and my Heirs for ever yet not simply mine because I hold it in the nature of a benefit from another and Fee-tayl as distinguished was not an introduction of the Normans for that Minshew observes it to have its Original from the Statute of Westm. 2. c. 1. which was made Anno 13. Edw. 1. The word Feud is used familiarly to this day in the Higher and lower Germanyes For what concerus grand petit Serjeanty I believe the words to be French and so introduced by the Normans to express those Services that were due to the Kings of England before the Conquest such Services being reserved by the Saxon Kings The service of Escuage was before the Norman Conquest though not known by that name the like was of Burgage which is no more than a yearly Rent whereby men of Cities and Burrows held their Lands or Tenements of the King or any other Lord which was in use before the Conquest Concerning Villenage Mr. S. doth cite out of Mr. Lambards Perambulation of Kent in Mepham under the Term of Agenes-land this as a very antient passage which had been enough to have convinced me that there had been Villains before the Norman Conquest and it is this Et si Villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio alledio c. and in his 114. page citeth an old Version of the 19. and 21. of King Ina's Laws of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is made thereby to signifie Villanus or Colonus and it is convicted by Domesdey Book Survey in Sudsexe thus Radulfus tenet de Willielmo viz. de Warene BRISTELMESTUNE Brictric tenuit de dono Godwini Comitis T. R. E. modo se defendit pro V. hid dim TraÌ„ est III car In dniÌ„o est dimid car XVIII villiÌ„ IX Bordarii cum III car uno servo De gablo IV milia alletium In eadem villa tenet VVidardus de Willo VI. hid unam Vs. proâ—tanto se defendit Tres Aloarn tenuerunt de Rege Edwardo potuerunt ire quolibet Unus ex eis habuit Aulam Villani tenuerunt partes aliorum Duorum Here is an express of a Servus and also of the Villani who held this Land in the time of Edward the Confessour Besides this I could allege many more but Sir Edward Coke upon Littleton saith that Villani in Domesday are not there taken for Bond-men but had their name de Villis because they had Ferms and there did works of Husbandry for the Lord and they were ever before named Bordarii which is contrary to Mr. S. in what I cited before of him concerning Bordmanni which I believe is one and the same thing with Bordarii and such as are Bond-men are called Servi Thus Sir Edward Coke But I believe the Normans found these Villains here even by their name by which I believe they were of a very antient standing for that I find them known by the Britains by that Title as they are often mentioned in the Laws of Howel-dha in a Law which before in this 〈◊〉 I mentioned is notice taken of a King's Villain and of a Nobleman's Villain and then another that gives a right to the Foster-children of dividing Land with the Children of the Villein but a little more plainly to bring the proof in those Laws it is Demonstrated how that Tres homines promoveri possunt uâ—a die that is to say as I guess it they are made Gentlemen in one day here you must take the Latine as I found it Captivus si movetus in Swyd de XXIV officialibus Swyd is dignitas dignity so that the sense of it is this if the Prince bestows upon a Caprive the dignity of being one of the twenty four Chief officers of his Court it is an advancement peculiar or he becomes by it a Gentleman Secundus filius villani si sit clericus our common Law doth differ from the Civil Law which saith Partus sequitur ventrem where as the Common Law hath it partus sequitur Patrem but here provision is made that the Son of a villain being a Clergy man should become a Gentleman which is somewhat explained by the next Tertius Homo ex captiva villa si villa habeat à Domino patrie licentiam Ecclesiam aedificare in Cimiterio ejus corpora sepeliri tunc villa siâ— omnes homines de ea postea sunt liberi that
is to say perhaps they were as servi before or villani and now they become liberi Much to the same purpose Mr. Lambard shews us out of an old piece of Saxon where the reputation of a Thane consisted in having among other things a Church a Hall a Porch c. which shews the cohaerence of the Saxon Customes with the British and thus by Judge Dodaridge out of him it is rendred in his Treatise of Barons pag. 152. It was sometimes in the English Laws that the people and Laws were in reputation then were the wisest of the people worship-worthy in his degree Earl and Chorle Theyne and under-Theyne and if a Chorle so thrived that he had fully five Hides of Land of his own a Church and a Kitchin a Bell-house and a Gate a Seat a several Office in the Kings Hall then was he from thenceforth the Theines right-worthy And if a Theyn so thrived that he served the King on his message on his journey-ward in his Houshold if he then had a Theyn which him followed who to the Kings experience had five Hides and in the Kings Palace his Lord had served and thrice with his errand had gone to the King he might afterward with his fore-oath his Lords part play at need and if a Thein that he became an Earl then was he from henceforth the Theins right-worthy And if a Scholar so thrived through Learning that he had degree and served Christ he was thenceforth of Dignity and Peace so much worthy as thereunto belonged unless he forfeited so that he the use of his degree ne might Again among the same Laws for forfeitures for burning of Houses it is thus provided that for the burning of Odin Regis dimid libre Optimatis LX. den Villani Regis XXX den Villani Optimatis XXIV den hoc de illis est intelligendum qui Piben habent de aliis tercia pars pretii cadit For the understanding whereof that Odin is translated formax which in this place signifies a Kilne wherewith to make Malt because that Piben signifies a Kilne-hole the burning of which sorts of Kilne is that which is here meant which unless it hath a Kilne-hole the third part of the prescribed forfeiture decreaseth That which I cause it to shoot quite blank against is the opinion of no Villeines before the conquest which this Law shews to the contrary in giving you an account of such even at this time of the Collection of these Laws Kingsvilleins and Noblemens-villeins In another Law it is that Si filia Villani eat in rapinam cum aliquo postea ab eodem sit repudiata reddat 〈◊〉 animalia tria supradicte etatis another Law provides what the Wife of a Nobleman might bestow without her Husbands consent and what she might lend without his consent But enacts that Uxor Villani nichil potest dare sine lioentia Villani nec mitram nec aliquod accommodare nisi cribrum tam longe quod vox ejus possit audiri stans in limine domûs sue dum clamat propter illud All these Laws are of several concernments but do all expresly prove Villenage above one hundred years before the Norman Conquest and so by what I have said before concerning the Laws of Howel-dda probably to be an antient British usage For the word Clown thought to be derived from the Latine word Colonus from whenâ—e also is the British word Klwn And is the same with the Dutch word Boer which by a syncope is used for Bouwer from the word Bouwen id est arare colere agrum as Minshew hath it what reproach could there probably be in that denomination yet now what ignominy doth it carry with it The like may be said of the last which is called Paganus in Latine but in English Pain which became a Surname to a family and a Christian name to several great persons But Minshew hath this Story of the Original of the Name which carries in my Judgment no great store of probability with it but as it is I will transcribe it under the word Pagan he saith A Judaeis defluxâ—ssâ—â—mos hic appellatio rei videtur cum enim inter Judaeos Hâ—erosolyma tantum civitas erat nullisque nisi Judaeis ad illam dabatur accessus reliqur ownes Hebraeis erant Pagani in pagis quasi extra cioitatem populum Dei constituti out of the eighth book of Isid he brings another story much to the same purpose Pagani inquie ex â—â—agis Atheniensium dicti ubi exorti sunt ibi enim in locis agrestibus Pagis gentiles lucos idolaque statuerunt a tali inilio vocabulum sortitisunt I am perswaded that Paganus comes from Pagus but I find that Cyflifc the Saxon Pagan had greater Priveleges than a Villain for that he was bound to military services as in the 52d and 64th Laws of King Ina which for brevity sake I shall pass by only take notice that of all such denominations there hath risen terms of disgrace which were not so in the first usage thereof so is it familiarly given to us concerning the common denomination of the Term Knave which is a word taken from the Britains who called a Houshold servant or rather such a one as attends upon the person of another in their Language Knaf and is also one that is not yet properly said to be a man but is betwixt a boy and a man In the sense of a servant it is used in Stat. 1. cap. 3. An. 14 Ed. 3. but in its corruption and as it is now received it is a word of great disgrace and expresseth one that falsifies his trust M S. Obit Eccles Heref penes Authorem Paul in our elder Translation is rendred the Knave of Jesus Christ to express that which we now read the Servant of Iesus Christ In an old Obit book that I have formerly belonging to the Church of Hereford there is mention of a benefactor called Simon Gods-â—nave from whom I believe at this day a certain place in the City of Hereford is called Gods-knave-inne which certainly hath no more in the signification than the Servant of God By this we see that from such like words and denominations as these are Surnames were derived though it may now seem strange to us to meet with such appellations it appears that they were not so curious of procuring excellent ones to transmit to their posterities but accepted of any serious or jocular some from shapes of body others from qualityes of the mind some from Trades Offices c. But I cannot let that pass without notice which for a Surname I met with in the second volume of Domesdey in the Survey of the Connty of Essex being there Registred as one of the TraÌ„s Tenentes of that County where it is thus Recorded * The Land of Roger God save the Ladyes for the word Domina saith Iudge Dodaridge in his Treatise of the Barons pag. 151. signifies Ladyes or Dames so women after
order their own Lands and Tenements one part they kept in their own hands and in them stately Houses and Castles were erected and made for their Habitation and defence of their Persons and the Realm also Forests and Parks were made there for the Pleasures Solace and Delight some were of a round Building of Stone for the most part Built upon a round pile of Earth either Natural but most commonly Cast up by man's Industry others upon a small rising or a plain Ground seldome more Capacious than to receive about twenty or thirty Men and were made rather to preserve the Persons and Goods of the Owners and his Servants and Tenants than to endure a long Siege of which sort there are many in Ireland because of their Antient intestine feuds but more upon the English and Scotish Borders many of which I have seen but with this difference as I said before that those the English did antiently Build were round and these for the most part square with one round Tower at one of the Angles both sorts of which were antiently called Fortalices and seldome made use of for Habitation because I find their mean dwelling Houses were made commonly under it or very near adjoyning to it And I discern a difference made betwixt those for Habitation and those I spake of that were only for a Safe-guard against sudden Inroads and Incursions for in Domesdey Book in the Survey of Erdisley in Herefordshire it is there recorded that ibi est domus defensabilis that is to say there is a dwelling House fortified which is now called the Castle of Erdisley and was Builded because of its Vicinity to the Welsh Borders and was intended by that Denomination to signifie more than one of those small Casties or Fortalices I lately spoke of these were the Strengths and Fortifications of those times most frequently in use I come lastly to speak of their Buildings in which there was something of an advantagious or at least an honourable change by the difference that was in the Mode of them I must confess the Norman manner was very noble and magnificent which by their Churches may be observed for the Saxons made theirs with Descents into them the Normans with Ascents the first made their Lights small and mean the second made them high and large these made their Arches stately with heights proportionable the others had their Arches and Coverings low and made their Walls of so great a thickness that they were a great Dammage and Impediment to the pleasure of their Lights when the Normans made use of no greater thickness or breadth in their Walls than would but well serve to bear their Height and Covering In the antient form of the Saxons before mentioned I have observed several Churches and pieces of other Architecture their entrances especially in their West-ends by Descents inwardly with Arches formed to correspond with those gradual Declensions and Steps all which shortning towards the greatest Door at the bottom of the Stairs over which for the most part was a finishing of a Semicircular piece of Gothick work and together made a kind of an artificial Perspective I have hitherto endeavoured in this tract to make it appear that for the space of 1700. years past we received no considerable Mutations or Alterations in our Laws and Customs That this our Tenure the subject of our present Discourse hath had the fortune to continue here from our British aborigines the first Planters of our Isle through those several changes and revolutions of Affairs and Governments that have hapned to it since that time and although in this Discourse preceding I may be thought to have walked a little beside the path yet I am perswaded I have not missed the way but kept and preserv'd the Goal in my eye Those alterations that are now found as to the general usage of this Tenure which was the Super-eminent custom of this Nation proceed not at all from any Enforcement or Coercion by reason of any of these forementioned Intrusions or Conquests but clearly by the consent and desire of the Proprietors and Persons therein concerned for in the County of Kent where Mr. S. saith this Tenure did generally over-spread there I say in the time of Hen. 8. several Lordships were discharged of this Tenure by Act of Parliament I have not all this while pleaded for the settlement or goodness of the Tenure to be used in this Age where Lands are well Peopled and fully Inhabited for it would be the destruction both of Lands and Linage but my business hath been to enquire into the state of the question the true Original Etymology and Use thereof The people of England by degrees have inextricated themselves from much servitude in their Customs and are now instated into a great privilege of Liberty and more particularly from those heavy pressures of Villenage the Slavery of which Custom hath received its Deaths wound in favorem libertatis for Sir Edward Coke out of Fortescue hath this note Impius Crudelis judicandus qui libertati non favet and gives this as the reason of it Angliae jura in omni casu dant favorem libertati the sense of Liberty was of so great force and power and the favour due unto it according to Law and Right of so great respect that those and the like pressures have received change and alteration and by the same power and equity joyned with the consent of the Proprietors it is so come to pass also that this our Gavelkind in most places of England is turned into the preference of Primogeniture for the preservation of Houses and Lands the next Chapter shall enquire though it seems to return far back whether we have any ground to believe that the CHAP. V. Trojan Brytains used the Tenure of Partition I Could not pass by without taking notice of a Marginal question that Mr. S. makes in pag. 54. and it is this By the way saith he how do our Britains claim descent from the Trojans Sith with them the eldest Son by Prerogative of primogeniture Monopolized the whole Inheritance I know not what Authors Mr. S. hath met with that he affirms so positively with our Britains the eldest Son did Monopolize all if his Sith with them relates to the Trojans I have nothing then left to answer to it nor do I think it worth the while to concern my self therein believing that neither Dares Phrygius nor Dictys Cretensis nor Homer nor any other pretended Trojan writer did intermeddle in the relation of Descent But I am perswaded it must have reference to the Brytains and that to them it is that he saith Sith with them the eldest Son Monopolizeth c. and notwithstanding I have some inducements to believe that Mr. S. asketh the question how our Britains claim Descent from the Trojans in Merriment and Jest yet in their defence to that very question there may so much be said which will carry a greater probability than any