or the like unnatural at the least and far fetcht if not violently forc'd For first admitting Kind to signifie a male-child in the Dutch or Belgick tongue as it doth not more than a female being a word common to children of either Sex Knecht indeed with them as Cniht with our Ancestours the English-Saxons is of that signification yet is not this kind of land so restrained in point of descent onely to the males but that as in the case of land descendible at the Common Law the females in their default that is where the males are wanting are capable of succession to it and in the same way of partition with the males Nay is any of the sons dead in the fathers life time leaving a daughter behind him such daughter shall divide with her uncles in this land What then shall we admit kynd to signifie the issue be it male or female as indeed it doth either coming of the Saxon or old English cennan or cennian parere to bring forth whence with them the word or participle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the first-begotten or first-born 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the onely begotten 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 terrigena one that is born or bred of the earth yet is not this land so tied to the issue but that in default thereof i. e. where that is wanting such as be in the transversal or collateral line as in other lands descendible at the Common Law may and do inherit it as for instance when one brother dieth without issue all the other brethren may and do inherit as doth their respective issue too in case of their default jure repraesentationis but with this restriction in the nephews case succeeding with their uncle viz. that the descent is then in stirpes not in capita Neverthelesse it goeth not as the Irish Gavelkynd to all the males of the same linage for in this as in other inheritances propinquior excludit propinquum nor yet neither to all the next in one line of kinred as they pretend that are for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 taking cyn to signifie kindred as indeed it doth for then brothers and sisters both being alike neer in degree should equally inherit a thing it seems allowed by the old German custome witnesse what we have from Tacitus Haeredes successoresque sui cuique liberi c. not restraining the succession to the male issue as neither doth the Civil Law whereas we know that as by the Feudal Customes abroad where males are the females are excluded from succession so by the Common Law of England women or females shall not partake with males according to that rule laid down in the Statute called Praerogativa Regis cap. 16. Foeminae non participabunt cum masculis which by the way is understood onely of such as are in equal degree But doth â—yn or kynd here intend and denote a mans issue the Gavelkynders children What may we say then to a conveyance of land in Gavelkynd to a Guild or Corporation aggregate of many suppose an Hospital as an instance of that nature shall be produced by and by they are a dead hand how then is the etymologie in that case justified Where 's the kynd the parties issue here to make good the derivation But since by occasion mention is made of such a gift or conveyance to strangers from the proper issue or heirs let me thus far further adde that in case it be called Gavelkynd from debitum vel tributum soboli i. e. due or given to the issue as some are of opinion how comes it then to passe that as before the Statute of Wills Gavelkynd land might by deed or other lawful conveyance and that Dominâ— in this case inconsulto and invito too contrary to the nature of what with the Feudists is properly termed Feâ— be freely given or sold away from the heir by the custom to a meer stranger contrary to the old Common Law of England except in some few cases as in Frankalmoigne or in marriage with a mans daughter a reasonable part might be given with some limitations and distinctions between Land of Inheritance and Purchase as now since the Statute of Wills if not before as some of late seek to perswade us a matter which I shall reserve alâ—iori indagini it may be and daily is by devise of will and testament How is the next heirs right to this land preserved when there is that freedome of giving or devising it away Or how can this liberty that etymologie consist Yet further doth not Mr. Lambard somewhere say that no Gavelkynd partition could be challenged but onely where the custome of division had prevailed and that Gavelkynd was not tried by the manner of Socage-services but onely by the touch of some former partition If â—o no land then could properly be called Gavelkynd wherein this custome of partition had not yet obteined what shall then be thought of those new created Tenures in Gavelkynd whereof until the Statute of Quia emptores terrarum examples are very obvious and frequent in the old Records both of the Cathedral at Canterbury and of the neighbour Abbey of St. Augustines and elswhere affording many ancient grants of land in Gavelkynd to what original shall the name there be referred to any customable partition nothing lesse for where can that be found in Gavelkynd-land of novel Tenure for want of that competencie of precursory time of them necessarily presupposed to frame the custome in who conceive the name taken from such accustomable partition Moreover if partition were the thing that gave name to Gavelkynd then should all partible land wheresoever be so called but there is in parts abroad out of Kent partible land not called Gavelkynd Ergo c. For the assumption see the Stat. 32. Hen. 8. cap. 29. purposely made to change the customary descent of the land of Osweldbeck Soke or Lordship in Nottingham-shire And what doth Bracton intimate lesse in his sicut de Gavelkynd vel alibi ubi terra â—st partibbilis ratione terrae Adde hereunto that the word as to the main part of it Gavel frequently occurs in the old records of some manours out of Kent sometimes simply but for the most in composition for example Gavel-erth Gavelate Gavel-lond Gavel-man Gavel-swine Gavel-wood Gavel-rod c. of which more anon And shall the same thing contrary to that rule of Law â— 1. ff De rerum permutatione diverso jure censeri For I suppose none will render it there being out of Kent and where no Gavelkynd partition taketh place Gife-eal Nor will this derivation any better stand with Gavel where it helps to the composition of some words here used in Kent in former times at least besides that of Gavelkynd such as are all or most part of those afore-remembred to which I may adde Gavel-rip Gavel-ote Gavel-sester Gavel-bred Gavel-bord Gavel-timber Gavel-corn
1647. Ja. Armachanus A Table or Index OF The principal Contents A. AEHte what p. 84 Agium in the termination of word what signifying p. 137 Akerland what p. 117 Allodiarii p. 123 Allodium the same with Bocland p. 88 110. the word derived p. 105. more properly in England since the Conquest p. 126. proper onely to the King to grant p. 126 Almesland what p. 119 Assise of Mortdancester where it lieth p. 152 157 Aver-bred what p. 25 Aver-land what p. 116 Avermannus p. 116 B. Bed-rip what p. 17 Bene-bred what p. 17 Beneficium of same signification anciently that Feudum of latter times p. 10â— Benerth what p. 18 Ben-rip what p. 17 Bere-gafol what p. 29 Ber-land what p. 118 Bermannus what p. 118 Bians what p. 18 Black-maile what p. 34 Black-rents what p. 34 Blank-ferme what p. 34 Bocland what p. 84. whence so called p. 112. how variously denominated p. 121 whether anciently deviseable p. 89. whether otherwise alienable p. 87 88. the same with Allodium p. 8 110. reteined after the Conquest p. 120 Bordarii p. 118 Bord-land what p. 114 118 Bordmanni p. 118 Burgh-yard what p. 22 189 Bydel what and whence derived p. 20 C. Mr. Cambdens derivation of Gavelkynd p. 3 Carropera p. 24 Carucae procariae what p. 18 rogaâ—ae p. 19 Carucage what p. 133 Charters diverse of those in Ingulphus questioned and how far and why p. 101 Chivalry and Socage two tenures comprehending all the lands in Kent and elswhere in England p. 129 Cniht in the Saxon language what p. 7 Coke Sir Edward his derivation of Gavelkynd p. 3 The Conquerours progresse proceedings after his victory neer Hastings p. 69. his Charter of Restitution of Church-lands p. 68 Conquest the times about it very rapacious p 67 Contract of marriage a Saxon form or model of it p. 75 76 Coredy what p 19 20 Corne-gavel what p. 16 Corporations anciently enâ—eoffed with lands in Gavelkind p. 8 Cotarii what p. 116. their tenements changed into Gavelkind p. 59 Cotland what p. 116 Cotmani what ibid. Custome hardly left p. 5. beginning within memory no Custom ibid. of Gavelkynd a common law in Kent p. 44 its essential property p. 49. how different from Tenure p. 144 Cyricena-Socne what p. 133 D. De rationabili parte bonorum the Writ so called whether lying at the Common Law or by Custom p. 78 91 Dome in the termination of words what signifying 106 Dover castle the Lock and key of all England p. 70 Drenches what p. 124 Drincelean what p. 29 Drof-dens what p. 117 Drof-land what p. 116 Drof-mannus what ibid Dun-land what p. 117 E. Error if setled difficult to remove p. 62. often caused for want of altercation ibid. Estates in England universally partible before the Conquest and how p. 77 78 Ex gravi querela the Writ so called where it lies 153 159 F. Fald-Socne what p. 134 Fald-worth what ibid. Fee not alienable without the Lords consent p. 8. whether anciently deviseable p. 84 naturally not deviseable and why p. 162 Fees whether any in England before the Conquest p. 103 111. become patrimonial in many places p. 162. what in their original p. 108. how changed afterwards ibid. Females capable of succession in Gavelkynd land p. 7. excluded from succession with Males p. 8 Feudastra what p. 57 Feuduto novum antiquum p. 40 Feudum the word how ancient p. 101 102. derived p. 104 Fewd in deadly fewd whence derived p. 107 Fief de Haubert and de Roturier p. 36 Filctale what p. 30 Fildale what ibid. Fines for the enfranchising of lands p. 59 Fird-socne what p. 174 Fodrum what p. 25 Folcland the nature of it p. 78 See also p. 114 126. Folgarii what p. 115 Foot-average what 116 Forgable what 30 Forland what 118 Forsohoke 31 Foster-land what 119 Francus bancus 51 178 Frankalmoigne p 40 142 Frank-fee 56 Freehold whether anciently deviseable 84 Frith-socne what 133 G. Gabella what p. 13 Gablum what p. 13. terram ponâ—â—e gablum what 14 Gabulum denariorum 26 Gafel gafol gafnl gavel what signifying 10 Gafolgylda 33 Gafol-hwitel â—6 Gaigneurs what 25 Gavel absurdly rendred gifeeal in many compounds 10 Gavelate what 31 Gavel-bred what 25 Gavel-bord what 22 Gavel-corne what 16 Gavel-dung what 21 Gavel-erth what 17 Gavelet what 31 Gavel-fother what 25 Gavelikendeys 33 Gavelkynd the words vulgar derivation proposed pag. 2. scanned p. 6. rejected ibid. a new etymon proposed and asserted p. 10. the Custome so called a Common Law in Kent p. 44. not causal of Partition in land so called p. 44. what it comprehends p. 48. the tenure so called almost universal in Kent p. 44. whether eo nomine obteining in Wales p. 53. whether a Tenure or a Custome p. 100. Prescription in it not good and why p. 44 whether Socage and it Synonimies p. 55. Grants of land in Gavelkynd p. 38. when ceasing p. 51. See more in Partition Villains Gavelkynd land females capable of it p. 7. the nature of it in point of partition scanned p. 42. no prescription good there and why p. 46. liable to Works p. 57. whether deviseable in Kent before the Stat. of Wills p. 151. descendible to collateral kinred p. 7. anciently conveyed to Gilds and Corporations pag. 8. alienable from the proper heir p. 9. all partible land not called Gavelkynd p. 10. Gavelman p. 33 Gavel-med what 20 Gavel-nohâ— what 25 Gavel-ote what 21 Gavel-refter what 22 Gavel-rip what 19 Gavel-rod what 22 Gavel-sester what 23 Gavel-swine what 23 Gavel-timber what 22 Gavel-werk what 24 Gavel-wood what 23 Ge how used with the Saâ—ons p. 38 Gecynde mis-construed by Mr. Lambard 37 Geneat what 14 Gersuma what 59 Grants of land in Gavelkynd when ceasing 51 H. Hade head hode hood c. in the termination of words what signifying 106 Haereditaments what 83 Hamsoâ—ne what 134 Hereslit what and whence derived 32 Hide land what 117 Hlaford-soâ—ne what 134 Horse-average what 116 Hotchpot 91 Hunig-gavel what 28 I. In-average what 116 Ingulfus Charters many of them questioned and how far and why 101 Inheritance the word how accepted in England 83 84. Inheritances in England universally partible before the Conquest and how 77 78 Inland what 114 119 K. Kent with other Counties conquered and over-run by Will. 1. p. 66. Servi there p. 74. also Nativi 75 Kind in Dutch what and whence derived p. 6 7 Knecht in Dutch what 7 Knight service-land naturally incapable of partition 48 Knyghren-gyld 135 Knights whether any here in England before the Conquest 123 Kynd in Gavelkynd of what signification 37 L. Mr. Lambard his two-fold derivation of Gavelkynd p. 3. whereof one rejected the other admitted p. 5. mistaken in the construction of gecynde 37 Land all in Kent and thorowout England either of Chivalry or Socage Tenures p. 38. all in England either ancient Demesne or Frank fee p. 57. and subject to Tenure 126. descended not alienable of old without the heirs consent 39. purchased alienable at
A Treatise OF GAVELKIND Both Name and Thing Shewing the true Etymologie and Derivation of the one the Nature Antiquity and Original of the other With sundry emergent Observations both pleasant and profitable to be known of Kentish-men and others especially such as are studious either of the ancient Custome or the Common Law of this Kingdome By A well-willer to both William Somner Virg. 2. Georg. Foelix qui potuit rerum cognoscere causas Cranz lib. 2. Metrop 9. Nemo sibi blandiatur de auctoritate veterum quibus etsi fabulae displicuerunt non tamen habebant unde falsitatem earum coarguere possent Sed nostrâ aetate crebrescentibus literarum monumentis inexcusabilis torpor est in fabulis scientes prudentesque permanere LONDON Printed by R. and W. Leybourn for the Authour and are to be sold by John Crooke at the Ship and Daniel White at the Seven Stars in St. Pauls Church-yard 1666. THE PREFACE Courteous Reader IT is now full eighteen years since by solemne promise I became ingaged to my Countrey-men upon their good acceptance of certain of my labours in behalf of our City wherewith I then presented them to proceed to the same or some other such like undertaking for the County a thing which as I then really intended so have I not since wanted that encouragement for it from the better sort expressed by their courteous acceptation of those my former labours which I could expect But being soon after proh dolor overtaken by that impetuous storm of civil war not yet quite blown over causing the distraction and threatening the destruction of this once renowned Kingdome I was necessitated to betake my self to other thoughts chiefly how I might secure my self against the fury in warding off the danger of the present storm being not able I confesse to reach to that high pitch of sedulity and magnanimity both in this kind to which the Grecian Socrates is said to have atteined whose thoughts were ever running on his book insomuch as but the very next night before he was to suffer death regardlesse of his so neer approaching danger able to indispose the mind discourage the industry and shake the constancie of any common spirit he was desirous to learn Musick because saith the Story he would die still learning somewhat Being therefore thus diverted and utterly for the time discomposed for the performance of my promise I hope not onely to be excused of my Country-men for what had not else been hitherto delayed my County-undertaking but also to obtein of them yet further respit in hope of a better opportunity for the discharge of that debt For my more easie purchasing whereof at their hands and that they and others may perceive that I have not been altogether idle all this while pitching in my thoughts upon our Kentish Custome of Gavelkynd and being not unfurnished of matter in the progresse of my studies gleaned and gathered from old Records enabling me with the help of that little skill I have atteined in the Saxon tongue to the study whereof I was encouraged by my precious friend and ever-honoured Mecoenas Dr. Casaubon as is elswhere by himself truly averred to some more than vulgar discourse thereof as a specimen and earnest of my further intentions for the County I betook my self at spare hours to the perusal resolving on the publication of those collected notes and notions disposing them so that as they have to satisfaction informed me in the points proposed so they may be of like use to others willing to bestow their pains and lay aside all prejudice in the perusal of them Kent I considered had been far and neer long celebrated for her Gavelkynd though not so known either at home or abroad whether in point of etymologie or properties that especially of Partition rendring it so incomparably famous throughout the Kingdome as truth would To wipe off therefore that dust of errour which time especially that parent of corruption hath contracted to it I have in the present discourse laboured chiefly to assert wâ—…t I conceive to be the true sence and deâ—…vation of the term for the understanding of the name whence the properties that especially here instanced do proceed for the better judging of the nature of it according to that end propounded to my self in all my researches which is to know things not so much in their present as primitive state more in their causes than effects Tunâ— enim saith the b Philosopher unum quodque scire arbitramur cum ejus cauâ—as principia cognoscimus By the processe and prosecution of the argument having a fair and pertinent inducement if not to treat yet at least to touch upon and â—â—kâ— notice as of the Saxons Boâ—land and Folcland so of the Feudists Feâ—dâ—m and Allodium a pair of vocables the lâ—tter that have long and much perplexed many prime mens fancies to disqâ—iâ—â— and find out their true and proper derivaâ—ionâ— to the occasion of great varieties in the point each man abounding in his own and that for the most part a different and singular sence I thought it not amisse to make one in the number of such Etymologists and although with singularity I confesse and dissent from all the rest yet perhaps so much to the purpose absit jactantia dictis as if not to hit the mark yet at least to come so neer it as few before have done Alike singular as both here and before in the derivation of Gavelkynd so afterwards I may be found in that of Socage yet I trust with so much truth and that so fully evidenced as will serve I hope to render me with the sober and ingenuous worthy if not of thanks yet of excuse and pardon if they differ in opinion from me Here also good Reader be advertised that whereas by occasion of our discourse in the third Proposition concerning the Partition-property in Gavelkynd I had obiter or incidently made some mention of the Writ De rationabili parte bonorum sometime by means of that partition mentioned in the old Kentish Custumal obteining and now again if the endeavours of some may take effect reviving in this County it came afterwards into my mind to think it would not be impertinent to the present Discourse somewhat further to enlarge in that particular that by enquiry made into the Antiquity and tracing the progresse of the Partition intended by this Writ from its first birth until its full growth we might be the better able to give judgment make the more probable conjecture of the present validity or invalidity thereof My discoveries therefore being made and communicated to some judicious friends not without their acceptation and my encouragement for publication I have adventured to add them at the end of that third Proposition pag. 91. As for my thwarting the common opinion concerning our composition with the Norman Conquerour and the consequents of it I offer no Apologie here as having already made it in the
a retrograde course in this re-search I shall begin with one of the latest Sir Edward Coke who in his Notes or Illustrations upon Littleton tit Villenage Sect. 210. verb. en Gavelkinde glosseth the text thus Gave all kynd for saith he this Custome giveth to all the sons alike Not long before him another learned Knight and famous Antiquary taking the word to expound in his Glossary of antiquated words saith that it is termed Gavelkynd either Quasi debitum vel tributum soboli pueris generi i. e. as it were of right belonging and given intimated in the two first syllables 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the issue children or kynd signified by the last 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or else secondly saith he from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. given to all the next in kindred Verstegan to ascend in our gâ—adation one step higher câ—nsureth the word of corruption saying that it is corruptly termed Gavelkynd for Give all kynd which after him is as much to say as Give each child his part From whom Mr. Cambden differs as little in time as in opinion when he saith it is called Gavelkynd that is saith he give all kynne Before all these Mr. Lambard the first that undertook the etymologie and whom beside the former Judge Dodderidge Dr. Cowell the Authour of the New Terms of Law and many more longo agmine aâ—e known to follow in his explication of Saxon words prefixed to his Archaion verb. Terra ex scripto is clear for the derivation of the word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Credo saith he ut terra illa Gavelkyn quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 idest omnibus cognatione proximis data dicatur But afterwards as if upon second thoughts altered in his opinion he coupleth this derivation with a second and so at length is found to share his opinion of the words original between two conjectures grounded both upon the nature of the land the one in point of Descent the other of Rent and Services In reference to the former of which he saith that Therefore the land was called either Gavelkyn in meaning give all kyn because it was given to all the next in one line of kinred or give all kynd that is to all the male children for kind saith he in Dutch signifieth yet a male child And in relation to the latter he saith that It is well known that as Knights-Service land required the presence of the Tenant in warfare and battell abroad so this land being of Socage tenure commanded his attendance at the plough and other the Lords affairs of husbandry at home the one by manhood defending the Lords life and person the other by industry maintaining with rent corn and victual his estate and family This rent as there he adds ni a customary payment of works the Saxons called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and thereof as I think they named the land that yeeldod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to say Land letten for rent or of the kind to yeild rent c. The Authour I confesse modestly leaves it free to the Reader to receive either of these conjectures or to refuse both as it shall best like him but the former of the two being primâ facie of a more plausible sound and allusion than the other an advantage very considerable with most men whose guidance notwithstanding is not alwayes to be followed and that having gotten the start of her fellow in time hath not fail'd to keep it ever since having proved the more acceptable of the twain and by this time found so many followers and those like the first Authour of so great credit as that whosoever shall contradict the one or dispute the other can do neither without exceeding prejudice so difficult a lesson it is with some to unlearn whose minds are as hardly weaned from an opinion which their fancie hath once approved as others are from an habit or a custome which if inveterate and long setled though corrupt and vicious is very hardly left off and laid aside Yet as the Common Law determines of a Custome that if the rise the original thereof can so be traced as it can appear that it first began within time of memory it is no Custome nor shall obtain or prevail as a Custome so in case by tracing the present derivation to the well-head I shall shew together with the time the errour of its first original not to be salv'd by long tract of time for Quod ab initio non valuit tractu temporis non convalescit I trust I shall not fail nor fall short of what mine endeavours drive at in this matter the weaning I mean of sober and judicious minds from an opinion so erroneous and ungrounded as this I doubt not upon trial shall appear to be though thus long continued and in it self specious and plausible enough However being convinced in mine own judgement of the errour that I may not seem to swallow it for company to the prejudice of truth for that I say if for no other reason I have resolved to protest against it and yet not to seem singularly affected without a cause I shall not do it by a bare denial or dissent as he that thought it sufficient for Bellarmines confutation to give him the lie but by representing withall my inducements thereunto I hope to put the matter out of doubt that I have studied the Readers satisfaction herein as well â—s my own by a learned mans example whoâ—e words in a like case as very apposite in this I shall here borrow for the close of my Apologie Etsi mâ— non lateat saith he quà m lubrica plenaque discrimâ—nis res sit quae per tot secula tot homines eruditi uno consensâ— probaâ—unt rejicere velle rationes tamen eas in medium adducere visum est quibus adductis hanc interpretationem damnare ausus sum Nor is this I take it magno conatu nugas agere the discovery and refutation of popular errours having been a task for many worthy pens in cases of as small concerment as this perhaps may seem to be To the matter then Whether the name of Gavelkynd was at first imposed with or in respect to the nature of the land in point of descent or not is indeed the matter in question The common opinion I confesse affirms it wherewith joyning issue in the negative I shall endeavour to refute it by a double proposition one negative shewing that this is a wrong and mistaken the other positive or affirmative declaring what is the right and genuine construction of the term As for the former though it carry with it a seeming allusion to Gavelkynd in sound yet if we look advisedly into the true nature of it we may and peradventure must conclude the etymologie from Giveall cyn Give-all-kynd
to themselves a quit-rent as it were in signum dominii that is they reserved to themselves the service and granted to the Hospital the usum fructum or they granted the utile dominium to the Hospital and reserved the directum to themselves So that whereas Bracton and others make mention of a tenure in feodo quoad servitia non in dominico referring to the chief Lord and of another in feodo dominico non in servitio relating to the Free-holder the former may here be referred to the Feoffors the latter to the Feoffees in this deed But this Parergon And now to wind up all concerning this first Proposition and not to enlarge with any further instances wherein I might be infinite for asserting this truth of our Gavelkynds derivation Gavelkynd we see is the lands right name whose Etymologie was never wrested to Gife-eal-cyn whose signification of Censual Rented land or Rent-service land was never questioned till that within our fathers memories one and all by a kind of errour jure veluti successionis transmitted to them run a head in a wrong and mistaken derivation PROPOSITION II. The Nature of Gavelkynd-land in point of Partition DIsallowing then Gavelkynd as to the name of it to be derivative from Partition our next enquiry shall be if on the contrary Partition ow it self to Gavelkynd or to what other cause Before I further enter into which research or offer any resolution to the Quaere give me leave to preface it with certain rules grounds and principles in this case fit to be premised You are then desired to take notice that here in England we acknowledge no land no inheritance partible or divisible but what is so either first by Law as in the case of Females succeeding for lack of Males whether in Knight-service land or Socage which in this point differ not or what secondly is so by Custome as in our present case of Gavelkynd and such like no parceners of land I say in point of inheritance or succession but either according to the course of the Common Law or by Custome as termed by Littleton and our more modern books the same in effect with what of elder time in Bractons language are called 1 Ratione personarum 2 Ratione rei vel terrae In the next place let me adjoyn what in this point of Partition is delivered by those two ancient and famous Sages of our Law Glanvill and Bracton whereof the former speaketh thus Cum quis ergo hereditatem habens moriatur si unicum filium heredem habuerit indistinctè verum est quod filius ille patri suo succedit in toto Si plures reliquerit filiâ—s tunc distinguitur utrum ille fuerit miles sive per feodum militare tenens aut liber Sokemannus quia si miles fuerit vel per militiam tenens secundùm jus regni Angliae primogenitus filius patri succedit in totum ita quod nullus fratrum suorum partem inde de jure petere potest Si verò fuerit liber Sokemannus tunc quidem dividetur hereditas inter omnes filios quotquot sunt per partes aequales si fuerit Socagium id antiquitus divisum salvo tamen capitali messuagio primogenito filio pro dignitâ—te aâ—sneciae suae ita tamen quod in aliis rebus satisfaciâ—t aliis ad valentiam Si vero non fuerit antiquitus divisum tunc primo genitus secundum quorundam consuetudinem totam hereditatem obtinebit secundùm autem quorundam consuetudinem postnatus filius heres est Item si filiam tantùm unam reliquerit quis heredem tunc id obtinet indistinctè quod â—e filio dictum est Sin autem plures filias tunc quidem indistinctè inter ipsas dividetur hereditas sive fuerit Miles sive Sokemannus pater earum salvo tamen primogenitae filiae capitali messuagio sub formâ praescriptâ— c. Thus Glanvill harmoniously followed and almost verbatim of Bracton whose words on this argument are these Si liber Sockmannus moriatur pluribus relictis haeredibus participibus si haereditas partibilis â—it ab antiquo divisa haeredes quotquot erunt habeant partes suas aequales si unicum fuerit messuagium illud integre remaneat primogenito ita tamen quod alii habeant ad valentiam de communi Si autem non fuerit hereditas divisa ab antiquo tunc tota remaneat primogenito Si autem fuerit Sockagium villanum tunc consuetudo loci erit observanda Est enim consuetudo in quibusdam partibus quod postnatus praefertur primogenito è contrario c. Hereunto let me subjoyn in the third and last place that common principle amongst us and obvious in our books viz. that prescription in Gavelkynd-land as it is not needful so neither is it good The reason is whereof I pray take notice with me that as Mr. Lambard hath it the custom of Gavelkynd is general spreading it self throughcut the whole Shire into all lands subject by ancient Tenure unto the same such places onely excepted where it is altered by Act of Parliament and therefore 5. Edw. 4. 8. and 14. Hen. 4. 8. it is said that the Custome of Gavelkynd is as it were a Common Law in Kent Having thus premised I shall now make it my endeavour to shape such a resolution or answer to the propounded Quaere as may consist with these principles And briefly my answer here is negative viz. that Partition doth not owe it self barely to Gavelkynd either ex vi termini by reason or force of that denomination or ratione rei from the nature or condition of the land that property alone of the lands being Gavelkynd or so called not sufficing to render it partible First as for the name the term that that will in no wise bear it is I conceive a thing sufficiently cleared in our Discourse upon the first Proposition wherein the term is vindicated from that mistaken construction by the errour of latter times obtruded on it nor can such a derivation any way consist with the premised principles Partition in Gavelkynd-land from the term or denomination of it being reducible to none of the there assigned causes of Partition As inconsistent also with those causes and grounds of partition that dichotomy or bipartite distinction of partible land into 1 that by Law and 2 that by Custome is the attributing that property of partition in Gavelkynd to the nature or condition of the land there being no mention of any such third sort of partible land to be found in our Books If it be replied Yes surely for Bracton is expresse for a partition ratione reâ— vel terrae in the places above quoted that especially where he saith as fol. 374. a. sicut de Gavelkind vel alibi ubi terra partibilis est ratione terrae Such indeed are his words and withall 't is not to be denied that such is the nature
and condition of Gavelkynd-land being not onely subject and liable to what the Civilians in their phrase are wont to call Judicium or Actio familiae herciscundae De communi dividundo the Feudists Adaequatio Paragium we in our language term it Coparceâ—ary Land-shifting and the like but withall so subject to it as that partition doth alwayes accompany land of that nature and is indeed as inseparable from it as the contrary from Knight-service land Whence then is it Before I answer observe first with me for an answer to these passages in Bracton that as before each of them in one place we have his si haereâ—itas partibilis sit ab antiquo divisa so likewise after them in another place his tenementum partibile inter plures cohaeredes sempeâ— solet dividi ab antiquo Whereby conferring place with place for reconciling Bracton to himself we may plainly understand what is meant by those two meâ—ne or intervening passages in Bracton namely that not the bare nature of the land but ancient customes joynâ— concurrence with it is intended and of him implied in each place though not expressed to render the land or inheritance partible The like help under favour must be allowed Glanvill to reconcile his Sciendum autem quod si quis liberum habens Socagium plures habuerit filios qui omnes ad hereditatem equaliter pro equalibus proportionibus sunt admittendi lib. 7. cap. 1. fol. 46. a. to his Si vero fuerit liber Sokemannus tunc quidem dividetur hereditas inter omnes filios quotquot sunt per partes equales si fuerit Socagium id antiquitus divisum eod lib. cap. 3. fol. 49. a. Briefly were it so that Gavelkind-land were partible by vertue either of the name or nature of it without accession and concurrence of Custome then all lands as soon as granted out in Gavelkynd whereof examples are obvious and till the Statute of Quia emptores terrarum frequent were ipso facto partible contrary to that common and received ground whereof before that none are such i. e. partible with us except that descending for want of males to females but what are so by custome As then not to the name so neither to the nature of Gavelkynd-land alone is such partition owing And is it then to Custome or Prescription For the latter 't is clearly repugnant to what is before laid down by way of grounds or principles it being a known rule in our Law and obvious in our books that Prescription in our Kentish Gavelkynd as it is not wanted so neither is it admitted to come in plea. What say we then to Custome Surely since neither to the name or nature of the land nor to Prescription nor yet neither to the Common Law so diametrically opposite to it to that I mean to Custome it is or I know not else to what that this partition mainly owes it self Agreeable whereto is that of Mr. Lambard where he saith that no Gavelkynd partition could be challenged but onely where the custome of division had prevailed and that Gavelkynd was not tried by the manner of the Socage services but onely by the touch of some former partition But if so then an objection here meets us resolved into a question thus What shall then be said to Gavelkynd land of novel Tenure upon the grant of lands â—ill then happily holden in Demesne to one or more persons in Gavelkynd as was usual before that Statute of Quia emptores terrarum and until when a man might create in his land what Tenure he pleased granting out as Bracton hath it in Socage what he held in Knight-service and è converso what I say shall we resolve concerning the point of partition here since no particular custome or usage of partition had ever took place to give to such division either foundation or precedent We are here me thinks threatned with a Dilemma for either the land was not partible and why then called Gavelkynd or if partible yet not by custome being but newly turn'd from some other Tenure into Gavelkynd and wanting both Time and the daughter of it Usage the essentials of a custome to render it partible that way Here then is work for an Oedipus but the resolution of the main doubt to which I will now more closely apply my stile will at once clear both Truth is then that 't is neither from Custome alone nor yet from the nature of Gavelkynd-land alone that this partition springs but partly from the one partly from the other and so from both together It must be granted that Gavelkynd land ex sui naturâ is partible thus far and in this sence that by an inherent quality it is capable of partition by Custome that indeed may and doth render it partible as Knight-service land properly it cannot by reason of a repugnancie thereto in the nature thereof but in this respect it differs not from Socage land in general which by the nature of it is capable of partition and by Custome may be and in many places extra Cantium is partible where the plea I take it ought to run quod terra illa à toto tempore c. partibilis fuit partita agreeable with that of Glanvill si fuerit Socagium id antiquitùs divisum which Bracton seemeth somewhat more fully to explain by his si haereditas partibilis sit ab antiquo divisa Now then reddendo singula singulis that such land is partibilis i e. partible the former part of plea is in Kent from Gavelkynd elswhere in particular manours at least from Socage that it is or rather was antiquitùs partita i. e. anciently parted the pleas latter part is from Custome or Prescription Partition in the mean while in our Gavelkynd being but a single property or branch thereof induced by Custome the term in its full latitude comprehending all other properties accompanying land of that nature and tenure such as Dower of the moyety Suffering for felony without forfeiture of estate and the rest conteined in the Kentish Custumal as properly depending of Gavelkynd as partition doth and in respect whereof the land may as well be called Gavelkynd as because of Partition But admitting Socage-land to be generally by the nature of it consuetudine mediante capable of partition as well a Gavelkynd how comes it then to passe will some say that this partition-property is more appropriate to it than Socage-land in general and that they so much differ in their terms From the agreement of the Kentish-men with the Conquerour â—aith the common opinion I shall answer that anon In the mean time said we not but now that Custome is the thing whereto we ow this partition And if so why then seek we any further after its original Customes we know cease to be Customes when once they can be traced to their first beginnings it being the main essential part of a
History â—ol 38. Verstegan in his Antiquities pag. â—7 Archbishop Parker in his Antiquitates Britannicae pag. 108. and Mr. Lambard in his Glossary verb. Terra ex scripto though afterwards in his Perambulation pag. 545. he is found to crosse himself herein by saying that this custom was brought hither out of Normandy by Odo the Conquerours brother Now 't is true and not to be denied that by these Laws of Canutus inheritances were partible but how It may be equally like our Gavelkynd but it is not so expressed nor do the words inforce it It 's ordered there indeed that a partition of the estate be made in the one between or among the wife children and next of kin by the Lord in the other by the heirs among themselves in both not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 emne or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. equally but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the former more explicitely thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. according to the old version in Brampton unicuique secundùm modum qui ad eum pertinet Here is now no equal division spoken of no equalling the younger with the elder brethren or the like But the estate is to be shifted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. according to right justly or if you will after the old version of the latter Law in Brampton being the same verbatim with that in Mr. Lambard elswhere rectè every one to have his due haply after a Geometrical not Arithmetical proportion Again not by equal proportion in point of goods at least for each was to partake therof as in the Gavelkynd partition in Ireland each one a part according to their quality degree or desert prorata happily their reasonable part whence indeed some do fetch and ground a writ we have among us called Rationabili parte bonorum concerning which there is a question in our books whether it lie by the common Law or by the custome onely of some Countries and whose footsteps may be traced in venerable Bedes English Saxon Ecclesiastical History lib. 5. cap. 13. but of this matter more anon at the close or foot of this Proposition Or again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. juxta arbitrium boni viri as the Civilians in like case use to speak or pro arbitrio Domini as it is in the former of those Laws be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. judicio suo whose place by provision of succeeding times both here and in Scotland was supplied by the Ordinary first joyntly with the deceaseds friends afterwards without them and alone as haply more to be confided in because by common intendment as more knowing so more careful to deal uprightly though it be utterly unknown or uncertain when this trust began by written Law to be committed to the Ordinary if I may guesse about what time that provision was made for the like in Normandy whereof in Matth. Paris History anno 1190. pag. 161. edit ult Or else to proceed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to right i. e. Custome or right as it is ordered and directed or tempered by the usages of several places for Quaelibet provinvincia abundat suo sensu Apposite and pertinent to this purpose is that observation of a late compendious Historian of our own upon occasion of the Confessours collection and compilement of as it were a Codex Legum whither we may refer the original of Magna Charta a Standard-law to be currant over all the Kingdome Before these Collections saith he of the Confessours there was no universal law of the Kingdome but every several Province held their several Customes all the Inhabitants from Humber to Scotland used the Danique Law Merchenland the middle part of the Countrey and the state of the West Saxons had their several Constitutions as being several Dominions and though for some few years there seemed to be a reduction of the Heptarchy into a Monarchy yet held it not so long together as we may see in the succession of a broken government as to settle one form of order currant over all but that every Province according to their particular Founders had their Customes apart and held nothing in common besides Religion and the Constitutions thereof but with the universality of Meum tuum ordered according to the rights of Nations and that Jus innatum the common Law of all the world which we see to be as universal as are the cohabitations and societies of men and serves the turn to hold them together in all Countries howsoever they may differ in their forms So that though we shall admit these with the rest of Cnutes laws to be national as by their Preface that I mean of the second part conteining his secular or politike Constitutions they are apparently no other 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet I take it these Laws 68. and 75. conclude not for a national general or universal descent of Inheritances by an equal or Arithmetical division amongst all the children or heirs nor indeed for more than this that a partition was to be made of the same in point of proportion more or lesse according to what pro more patriae vel loci and in point of goods juxta arbitrium Domini was just and fit there being no precedent general Law or Canon here now extant at least to regulate or give directions in case But if not nationally for to give one instance instead of many Thoroldus in a Charter of his to Croyland Abbey recorded by Ingulphus makes mention of his Lord and kinsman Earl Algar the eldest son and heir of Leofric Earl of Leicester and his Countesse Godiva Thorolds sister in the year 1051. yet I am contented to admit and agree that provincially and particularly here in Kent we had such a Custome both before and at the Conquest neither am I against their opinion who affirm the like course and custome currant in those times throughout the Kingdome as not being desirous to insist much upon this example in Thoroldus charter or any such like to the contrary for the present though I doubt whether it can concludently be argued from the grounds and authorities they seem to go upon those Laws of Canutus Neverthelesse be it so for though some will say the Conquerour found it not here but either by himself or his brother Odo brought it hither out of Normandy and by the pattern and practice of his own Countrey planted it here how can this stand with Spots Story by the way yet I am not of their mind For had it been from thence transplanted hither probably it would not have been confin'd to Kent a corner onely of the Kingdome but have spread it self rather over the whole by the Conquerours means whose inclination and endeavours to propagate and implant here the Customes of his own Countrey are too eminent and notorious to be doubted of 'T is nothing probable then what some have deemed that we borrowed
this custom from Normandy or that Odo was wrought upon by any pattern of that Countrey to set it up amongst us but rather found it here at his coming Supposing therefore such an universal custome here in England before and at the Conquest it will concern us next to make enquiry how it came to passe that when all the Realme beside hath in a manner discontinued it Kent onely reâ—â—iâ—s it in that gâ—â—iâ—â—al manner at lâ—aâ—â— whereby improcesse of time it is become as the Year-book quoted of Mr. Lambard phraseth it as it were a common Law there The answer must be but conjectural since Records herein fail us of all light as well as Histories all but Spots who for the reasons pre-alleaged shall be none of my Resolver Will you have the common answer Why then they say the Conquerour abrogated this custome in all parts of the Kingdome save onely in Kent which obtâ—ined to continue it by composition with him when they met at Swanescomb But having formerly said I hope enough in answer hereunto I will seek further and try if some other more probable cause may not be found for it The Conquerour then I will suppose consented to the continuance of this custome generally throughout the Kingdome in all I mean but Knight-service land the descent whereof to the eldest son alone partly for his own and the Realms better defence and strengthening and partly for the upholding and maintenance of gentile families I suppose none doubts to be lesse ancient than the Conquest for so much of it at least as is of ancient Tenure as Mr. Lambard desires to qualifie it Nay and seems to give expresse allowance to it without distinction of lands by that 36th of those Laws in Ingulphus copy which after the Conquest he granted to the people of England and were indeed as the title of them intimates the Laws of the Confessour his predecessour or rather say some of the Confessours predecessour Canutus Si quis intestatus obierit liberi ejus hereditatem aequaliter dividant So runs the Law according to Mr. Seldens version from the original French or Norman Some haply may take this as intended onely as a rule for goods not for lands too But to that it may be replied that the word hereditatem there if of that acception then as since and at this day will not admit of that construction since by the common opinion both of elder and more modern Lawyers nothing passeth with us here in England jure haereditario but onely Fee and that Hereditaments are such things as do naturally and of course descend to the heir and neither to the Executour or Administratour as chattels do whence that of Littleton Sect. 1. Feodum idem est quod haereditas answering to that of Bracton long before him Feodum est id quod quis tenet ex quacunque causa sibi haerâ—dibus suis See to this purpose Glanvill lib. â—3 cap. 27. But here we meet with an objection By this argument will some say you restrain and tiâ— up the Constitution to lands onely excluding goods or chattels as our Lawyers call them from what ground see in Sir Hen. Spelmans Glossary verb. Capitale to which add Freherus his Notes upon the Decalogue published anno 1610. Precept the last To construe it I must confesse or of either singly or alone were in my judgement too much to restrain and streighten it and in â—ffect to conclude it a lame and imperfect Constitution ordering the intestaâ—e dead mans estate and the disposal thereof but to halves as we say wherefore I conceive that to take the word Inheritancâ— here to comprehend both as I suppose aehâ—e doth in that 68. of Canutus Laws whereto this here if it were not taken thence may seem to have some reference is not more reasonable than to understand it eiâ—her of chattels or lâ—nds singly seems to me otherwise Why but then say they you admit of a poâ—eâ— of devising Inheritance by will and consequently make Fâ—e and Free-hold deviseable and that by Law arguing from those words Si quis intestatus ob erit c. â—rue disâ—inguishing times for â— take it nothing was more usual in those times I mean before the Normâ—n Conquest and this if you maâ—k it is oâ—iginally a Law of the Confessours or rather of Canutus his predecessour than to devâ—se and give lands away by will though therein they receded from their first copy the German custome of Nullum testamenâ—um a provision afterwards received into the body of the Feudal Law which thus hath it Nulla ordinatione defuncti in feudo manente vel valente It was then I say a usual thing with their Lords consent at least to dispose of their land by will especially their Bocland thence haply amongst other titles given it as being sometimes termed and turned Alodium otherwhile terra hereditaria often terra libera not seldome called terra testamentalis that is as an old Leiger-book in Guildhall London expounds it terra quam homo potuit in lâ—cto suo languens legare with this limitation notwithstanding that such Bocland were not by precaution in the original gift or grant liable to that or the like restriction in point of alienation occurring in the 37th of King Alfreds laws which neverthelesse extended bâ—t to strangers a man being there forbidden to alienate his land of that nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. â—xtra cognationem vel progeniem or in the Civil law phrase extra familiam from his own kinred or family whence perchance it came afterwards to passe that in such terragentilitia the heirs concurrence was required and used in the alienation Instances of this kind of disposing land by wâ—ll I mean might be given in abundance but a few may serve the turn To passe over as obvious because publike King Alfreds will at the â—nd of his acts and life by Asserius though I might here perhaps not impertinently take up that of Regis ad exâ—mplum c. to let that passe I say as also for the like reason to omit Byrhâ—riâ—ks will of Mepham in Kent extant in the Perambulation pag 492. whereunto if need were I could add many more examples as well out of St. Albans private History now of late made publike by my deceased friend Dr. Watts as from the Records of the Church of Canterbury whereof besides the copies of some whole wills I have by me several extracts To let all these passe I say I shall onely instance in a will or two one of a very eminent peâ—sonage an Etheling Prince Ethelstan by name the son of King Ethelred which I shall set before you in the Appendix Scriptura 18 as Scriptura 22 the other with some imperfections and misprisions here and there I confesse but through the Transcribers fault that entered them in the Leiger and by reason of his ignorance it should seem of
and speaks onely of the Kings own Barons and Tenants Si quis Baronum vel hominum meorum infirmabitur sicut ipse dabit vel dare disponet pecuniam suam ita datam esse concedo quod si ipse praeventus vel armis vel infirmitate pecuniam non dederit nec dare disposuerit uxor sua sive liberi aut parentes aut legitimi homines ejus eam pro animâ ejus dividant sicut eis melius visum fuerit And is seemingly no national provision no rule intended for the generality of the Subjects the Communalty or if it were yet with such expresse full and free liberty inconsistent with this Writ given by it to the party to dispose of his estate by will at his pleasure as tacitely was granted both by that fore-cited 68. Law of King Canutus and that other of his Successour the Confessour whereof also before So that admitting or supposing a will the subsequent division or distribution prescribed by that Law of Hen. 1. took no place as by consequence neither did that reasonable or rateable part intended by this Writ Passing therefore hence let us next as next in order of time consult that Oracle of the Law Judge Glanvill living and writing in Hen. 2. dayes He indeed lib. 7. cap. 5. is expresse for this kind of tripartite division Cum quis saith he in infirmitate positus testamentum facere voluerit si debitis non sit involutus tunc omnes res ejus mobiles in tres partes dividentur aequales Quarum una debetur heredi secunda uxori tertia verò ipsi reservatur de qua tertiâ liberam habet disponendi facultatem verùm si sine uxore decesserit medietas ipsi reservatur And to the same purpose again â—od lib. cap. 8. Si post debitorum acquietationem aliquid residuum fuerit tunc id quidem in tres partes dividetur modo praedicto he refers to the forecited fifth chapter Et de tertia parte suum ut dictum est faciat testamentum To which kind of tripartite division he plainly seemeth to refer and have respect afterwards lib. 12. cap. 20. where he layes it down in terminis as a thing recepti juris warranted by the Custome of the Realme that is the Common Law saying De catallis autem these are the words of the Writ quae fuerunt praefati R. praecipio quod ea omnia simul in pace esse facias ita quod inde nil amoveatur nec ad divisam suam faciendam nec ad aliam rem faciendam donec debita sua ex integro reddatur Et de residuo post fiat rationabilis divisa secundùm consuetudinem terrae meae Thus Glanvill with whom unanimously concurr Bracton and Fleta Hence now many learned men conclude this tripartite division and the Writ waiting thereupon to be rather by or at the Common Law than as is thought by others and those learned men also by Custome and that hereof Magna Charta cap. 18. expressely taketh notice in the Savio or Limitation at the end thus Englished Saving to his wife and children their reasonable parts The Opponents and such as take the contrary part endeavour to elude this as a matter rather of Counsel than command So for example Dr. Cowell Instit li. 2. tit 13. parag 2. followed by Sir Edw. Coke in the second part of his Institutes pag. 33. who to assert his opinion in the negative his denial of the widow and childrens right to a Reasonable Part by the Common Law thus there adds The nature of a saving regularly is to save a former right and not to give or create a new and therefore where such a Custome is that the Wife and Children shall have the Writ De rationabili parte bonorum this Statute saveth it And this Writ doth not lie without a a particular Custome for the Writ in the Register is grounded upon a Custome which as hath been said is saved by this Act. But where going on he further adds that Bracton was of the same opinion quoting for it as Swinbourne before him that place of Bracton fol. 61. a. Neque uxorem neque liberos amplius capere de bonis defuncti patris vel viri mobilibus quà m â—uerit eis specialiter relictum nisi hoc sit de speciali gratia testaâ—oris utpote si bene meriti in ejus vita fuerint c. with submission they are both of them mistaken that which Bracton there delivers being a plain exception deviation and diversion from the general rule by him as by Fleta after him totidem verbis just before laid down and taking place onely in Cities Burrows and the like by particular custome of the place as amongst others ut quidam dicunt say they in London and that upon this double consideration namely first the advancement of trading and traffique the life of all Common-wealths especially of Ilands which would be much encouraged by this liberty left to the Merchant or Trades-man to dispose of his labours and gettings where and how he saw best and secondly the countenance of vertue and discountenance of her opposite vice when by a necessity laid upon the wife and children to comply with the husband and father in such wayes both of thrift and duty as might win and wear his love and consequently make him willing to requite their merit the vertuous should be rewarded the vicious discarded Vix enim say they Bracton and Fleta both inveniretur aliquis civis qui in vita magnum quaestum faceret si in morte sua cogeretur invitus bona sua relinquere pueris indoctis luxuriosis uxoribus malè meritis ideo necessarium est valde quod illis in hac parte libera facult as tribuatur Per hoc enim tollet maleficium animabit ad virtutem tam uxoribus quam liberis benè faciendi dabit occasionem quod quidem non fieret si sâ— scirent indubitanter certam partem obtinere etiam sine testator is voluntate And this I take it is the thing the good of the Common-wealth by the maintenance of traffique much encouraged by the liberty of a free Devise by Glanvill though somewhat darkly pointed at lib. 1â— cap. 11. where acquainting us that an Assise of Mortdancester lies not for houses or tenements which are wont to passe inter catalla in Burrows as Bracton and Fleta inform us because of a greater commodity redounding to the Kingdome by another kind of Assise an established course I suppose he means warranting the liberty of a free Devise of such things tanquam catalla he saith Item ratione Burgagii cessare solet assisa per aliam assisam excausa majoris utilitatis in regno constitutam But notwithstanding it were thus in London in those times when Bracton and Fleta wrote yet afterwards it seems that custome of a free and arbitrary Devise ceased and haply upon those counter-grounds or contrary considerations brought and laid down
purpose Has forisfactur as habet Rex super omnes Alodiarios totius Comitatus Chent super homines ipsorum And In Cantia quando moritur Alodiarius Rex inde habet Relevationem terrae excepta terrae S. Trinitatis S. Augustini S. Martini exceptis his Godric de Burnes Godric de Carlesone Aelnold Cilt Esber Biga Siret de Cilleham these last three are mentioned also in the Survey there of Canterbury amongst those whose lands were Sac and Soc-free i. e. quit against the King of Sac and Soc Turgis Norman Azor. Super istos habet Rex forisfactur am de capitibus eorum tantummodc de terris eorum habent Relevamen qui habent suam Socam Sacam I rather read it habent than habet Relevamen because by charters both of the Cathedral and St. Augustines Abbey of those succeeding times I find the Monks in each place priviledged with the liberties of Sac and Soc c. over their Allodiarii as termed in the charters of the latter place over their Thegnes or Theines as in the former in what form of words see in the charter of each place for illustration sake copied in the Appendix here Scriptur 19. and 20. And least these various terms Allodiarii and Thegnes rendring them of a seeming difference should occasion any suspition of their being not the same for your satisfaction to the contrary take this note along with you that those who in the Latine charteis of St. Austins are termed Allodiarii in the very same charters exhibited in English like as in those at Christchurch are stiled Thegnes But what may it be ask'd were they then which in some very ancient Records of that Cathedral are named Threnges Indeed I have met with a Record there and you may meet with it here in the Appendix Scriptur 21. a choice one in my account as the book it self was iâ— seems in his who in the margent of the first page of it long since left this note Custodiatur benè iste libellus quia etsi appareat non valere benè tamen valet est libellus satis pretiosus monachis Ecclesiae Christi which makes no slight mention of such Threnges belonging to the Monks there in these very words Quia verò non erant adhuc tempore Regis Will mi milites in Anglia sed Threnges praecepit Rex ut de eis milites fierent ad terram defendendam Fecit autem Lanfrancus Threngos suos milites Monachi verò non fecerunt sed de portione sua ducentas libratas terrae dederunt Archiepiscope ut per milites suos terras eorum defenderet ut omnia negotia eorum apud curiam Romanam suis expensis expediret unde ad huc in tota terra monachorum nullus miles est sed in terra Archiepiscopi c. To this purpose Gervasius Dorobernensis then a Monk of the place speaking of the Archbishops dividing the revenue between himself and the Monks Sibi etiam saith he râ—servaverunt Comites Barones Milites Monachis verò assignaverunt rusticos agricultores These Threnges doubtlesse were the same which in Domesday-book are somewhere called Drenches and if so your best satisfaction what they were will be from the words explication in Sir Hen. Spelmans Glossary But me thinks laying these Records concerning them together and then comparing them wiâ—h the fore-cited ancient charters of liberties granted to the Monks of Christchurch and St. Augustines on the one hand and Domesday-book on the other Drenches Threnges Thegnes one and all may not unfitly be rendred in that books phrase Allodiarii being such Liberales as the Saxon Thegnes is not unusually turned in the old Latine translations as Thegenscipe by Liberaliâ—as such Ministri Fideles Servientes Nobiles as being by these places dignified with some portions of their Allodium or Bocland did militiam ex arbitrio tractare nullius â—omini imperio evocati nulloque feodali gravamine coerciti as our learned Glossarist concerning Allodiarii being permitted to continue in their pristine estate acquitted from military service and tenure when as others were from Threnges turned into Milites and their land consequently subjected to military fee and tenure Whether the name of Drenches were taken up from such a cause as our learned Glossarist from a Record by him there cited is assigned for it some reason there is to doubt from the mention of the terms Synonimy Threnges in that Record of Christchurch as known in that notion here before the conquest whereas the other sayes they took name first after it If before it as the Christchurch Record then I see me thinks some cause to suspect the term corrupted from Thegnes i. Thanes which cleerly that Cathedral had before the conquest On the other side if the Record in the Glossary be right and that withall Threnges Drenches Thegnes and Allodiarii be as all the fore-cited authorities laid together they seem to be Synonima's terms identical then were our Kentish Allodiarii such as had not revolted from the Crown by opposing the Conquerour whether by their aid or counsel but had peaceably submitted to him and his Empire whilest consequently others of the county opposing withstanding and resisting him and his coming in had ipso facto forfeited their possessions and if so then Spots history whereof so much before may well deserve yet another dash or if you will another spot But thus far of Allodium as also of what induced it Bocland which as to the name almost quite ceased with the Saxons though as to the thing it survived some time after under the notion of Allodium into which it was translated of the Normans here and of them so altered also in the very thing that it became thus far subject unto Tenure as in the opinion of learned men it was land as we say holden and so accounted whence in time that common and received axiome amongst us that in the Law of England since the conquest at least we have not properly Allodium that is not any Subjects land that is not holden in which respect as one saith he that can say most for his estate saith thus I am seized of this or that land or tenement in my Demain as of fee Seisitus inde in dominico meo ut de feodo c. And 't is most true at this day but under favour it was otherwise since the conquest witnesse besides Domesday-book where the opposite to Fee Allodium is very obvious those charters afore-cited the one of St. Laurence the other of Christchurch and such like mentioning land holden by the Authours or Owners for which they were responsible to none as also the Pinenden plea for the Archbishops lands of Canterbury and the grant in Alodium mentioned in Eadmerus evidencing cleerly the contrary and asserting some of them the continuance of such creations from the King to whom after Textus Roffensis
in the Kentish Custumal And because this of Partition amongst the rest properly depends of Custome as thwarting the course of the Common Law in like case hence the Quaere grew at first whether Gavelkynd were a Custome or a Tenure Indeed a very improper and incongruous Quaere and occasioned by the want of that distinction of the Genus from the Species which through inadvertencie are here confounded Gavelkynd being the Genus Partition the Species So that if we shall but reddere singula singulis this doubt will quickly have an end Gavelkynd generally spoken of and in grosse is the Tenure particularly and with reference to this Partition it is a Custome accompanying the land of that Tenure Or if you rather will Gavelkynd is the Tenure Partition and the other properties the Nature Which Solution gives occasion of another Quaere and that indeed a main one Whether namely this Custome of Partition in Gavelkynd-land be so inherent in the land and so inseparable from it that notwithstanding the Tenure of the land be altered yet the land shall stâ—â—l retein this property No more I take it than the rest of the fellow-properties as much depending upon Custome as that and for which the land may deserve the name of Gavelkynd as well as for that and therefore some perhaps will say it shall retein them all indifferently I shall not here ingage as an opponent onely invited by this fair occasion crave leave to propound Academically what in like case I find delivered by others conducing in my judgement to facilitate the resolution leaving it to such as have more will to debate and better skill to decide the question than my self to give a fuller and more peremptory resolution in the point I may I take it not improperly state the question thus Whether the person in this case shall follow the condition of the land or on the contrary the land that of the person The former it seems takes place in Paris the French Metropolis by the custome of the place whence that of Choppinus treating of those Customes pag. 316. Parisiensi iâ—â—em municâ—piâ— saith he quod gentilitiâ pariter sulget Nobilitate clarorum virorum usus familiae herciscundae minus est obnoxius invidiae Ubi scilicet non persunarum sed fundorum conditio nobilis plebeiave partes assignat To which he adds a little after Hâ—â—d ideâ— tamen dividundarum haereditatum ratiâ— immutata est Parisiis cum nobiles fundos plebeii nobiliter ignobiles aequojure generosi invitem partiantur To the same purpose our Authour elswhere â—els us that priseo quodem Gâ—llici fori usu plebeius fundus haud ideo pristinam exuebat conditionem quòd à recto ipsius Domino aere comparatus esset Ni ejus nomine comparator in clientelam se unà cum superiore fundo suo ad patronum contulisset which his margin elswhere records thus Anciennement les rotures aâ—quises par le scigneur direct se partageoient returierement si non que le dit acquereur les comprint en l'adveu de son fief le rendant au superieur Thus went it seems the more ancient Custome in those parts But tempora mutantur The case of latter times is altered there as the same Authour gives us to understand in both the last fore cited places At postâ—rioris aevi Jurisprudentia mutatis calculis novam invexit servientis fundi unionem tacitam consolidationem cum altero dominante ac parem adeo utriusque qualitatem praenobilem Ni si illius emptor subinde contestationem interposuisset contrariae voluntatis Thus in the former place In the latter thus Nostrae tamen aetatis moribus diversum obtinuit censuales nempe obnoxios agros solâ per rectum Dominum acquisitione prorsus uniri in unúmque redigi cum praedio dominante nisi protinus emptor contrariae voluntatis testationem interposuisset The effect of both is this that Censual lands by purchase coming unto the direct Lord the Lord of the Fee or Over Lord aâ—e ipso jure Feudal and shall accordingly descend as thereby re-united to the Fee unlesse the buyer at the time of purchase do protest to the contrary Will you please to hear his reasons Unionis nempe vis illa eò producitur ut ignobile praedium militari junctum nobilitetur eque plebeio as soâ—â— vectigalibus obnoxio transeat in feudâ—lis clientelae sortem liberiorem Thus he De moribus Parisior pag. 58. Much what one with that in the other place De Domanio Franciae pag. 41. Quoniam tacita praediorum unione confusa erant jura servitutum census solarii vectigalis Cum rei propriae nulla superforet servitus exâ—ndéque vectigalis sundi qualitas esset immutata Thus he whom see also if you please De Domanio Gallicâ— pag. 168. num 2. Also pag. 284. num 1. To whom add Hotoman De Feudis lib 1. tit 5. parag 2. in fine You see by this how the present case stands in some parts abroad Here at home as it seems by the very Custumal of Kent in two several cases therein specified the descent of Gavelkynd-land is changeable and the land becomes unpartible first namely when by escheat happening either by Death or Cessavit next when by the tenants voluntary surrender it comes into his Lords hands who holds by Fee of Haubert or by Grand Sergeanty both which Mr. Lambard takes to be Knight-service To which may be added two other cases which occur in an ancient Kentish Eire in the Exchequer ann 29. Edw. 1. where enquiry being made and the question propounded to the Kentish men how many ways Gavelkynd-land might be altered and delivered from the ordinary and custumary descent answer was given by four instancing in the two former and to them adding those other two namely 1 Per licentiam Regis by the Kings licence and 2. Per chartam Archiepiscopi by the Archbishops Charter Against this and on the other side inter alia may be opposed what is pleaded in the fore-remembred controversie between Burgade Bendings and the Prior and Covent of Christchurch Canterbury wherein the Prior in barr of Burga's claim to the moyety of his and the Monks manour in Franc bank pleads Quod Dominus Rex qui manerium illud deait praedecessoribus suis non tenuit illud nomine Gavelkinde Whence admitting the plea for Law naturally seemeth to result this double consectary 1. That the King may hold land in Gavelkynd 2. That the King holding land in Gavelkynd in case he shall grant it away to any religious house in puram perpetuam eleêmosynam in Frankalmoigne it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the religious men shall infeoffe with it Much more doubtlesse might be said in the point as well pro as contra but I shall leave it to be further argued by Lawyers adding onely in a word what upon the whole
Gavel-reâ—ter c. whereof also I shall intreat further by and by Is it then lastly to be supposed that the lands meer descent in this kind to all the heirs alike supposing a plurality of heirs was all the regard those Ancestours of ours had to sway and regulate their judgement by to whom the name the term doth owe its first original Was that in probability ground enough to satisfie them of the congruity and sutablenesse of the name to and with the nature of the thing named as names we know should be Vix credo I doubt it for my part In brief then to recollect what hath been said 1. If females are capable of this succession as well as males where the male issue faileth 2. If collateral kinred are capable thereof as well as those in the descendent line where such heirs are wanting in both which kinds Gavelkynd land differs not from that at the Common Law 3. If Corporations may hold land in Gavelkynd 4. If such land may be passed away to meer strangers from the right heirs 5. If none may properly be called Gavelkynd-land where an accustomable partition hath not made way for it 6. If there be partible land elswhere out of Kent that is not called Gavelkynd 7. If Gavel the fore-part of the word found in some Records of land out of Kent and of others in Kent will not bear the derivation of it from Gife-eal without absurdity 8. And lastly if names are to be imposed with respect to the nature of what is named then is Gavelkynd after these mens premised derivation in some sort a very scant narrow and partial in other a most incongruous and improper term to expresse the nature of the land by Surely there was somewhat more peculiar to Gavelkynd-land and of more note and eminencie in it better serving to distinguish it from other kind of land than this derivation of theirs seems to intimate and which first gave occasion to the imposition of that name upon it which leads me to my other the positive or affirmative proposition asserting the true sense and construction of the term and shewing whence it was at first imposed and afterwards continued Wherein I must confesse Mr. Lambard was as happy to go right in the latter of his two conjectures as he was before unluckie to misse of the right in his former yet in this passively unhappy though that the former through the advantages afore-mentioned wholly took and was accepted of all whilest the latter was received and embraced of none but no great marvel since whilest some through ignorance could not judge of others haply for company would not question so plausible a derivation But to the purpose To such as are any thing vers'd in Saxon monuments Gafol is a word very obvious but varied sometimes in the Dialect as being written now 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 anon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I shall give you a few instances where it occurrs and in what sense Tribute mentioned in the 17 of St. Matthews Gospel verses 24 and 25 as also in the 22 of the same Evangelist verses 17 19 is in the Saxon Translation of the Gospels turned 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the 25 chapter of the same Gospel at the 27 verse it serveth to expresse what there in our modern English Translation is called in some books advantage in other usury agreeable to that in the Saxon Psalter Psal 54. vers 11. where usura in the Latine in the marginal version or reading of the word is rendred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 occurring in the first of King Withreds Laws of Sir Henry Spelmans Edition in the first Volume of the Councils pag. 194. is of that learned Knight expounded to us by Redditus vel Pensiones as it is again in his Latine Version of Pope Agatho's decretal Epistle pag. 164. of the same Councils by Redditus In an old Sanction of King Edgars recited by Mr. Selden in his Notes upon Aedmerus pag. 153. what is there in the Latine read solitus census in the Interlineary Saxon Version we find rendered there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereunto I might adde heaps of instances taken from the Saxon Laws the Mare clausum and elswhere but I forbear to exspatiate and to be short Gafol is a word which as Gablum in Doomsday-book the skilful in the Saxon tongue with Sir Hen. Spelman elswhere turn by what Gabella is expounded abroad viz. Vectigal Portorium Tributum Exactio Census in Latine but in English with Verstegan Tribute Tax or Custome to which with Mr. Lambard and Sr. Edw. Coke let me adde Rent witnesse besides the former quotations what occurrs in an ancient will or deed of one Athelwird the Donor of certain land at Ickham in Kent to the Cathedral at Canterbury in the year of mans redemption 958. where you may read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. And anon after again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The former of which passages under favour of the skilful in that language I shall render thus in our modern English After his dayes or death Eadrith if he live shall enjoy or use it yeilding that rent which is imposed on it that is v. pounds and every year or yearly one dayes farm or victual unto the Covent that is xl measures called Sextaries of ale c. And the latter thus With the same or like Rent that herein is appointed Let me adde what in another like Record both for time and place occurrs thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is And after both their dayes or deaths let Eadsith the Arch-Bishop if he survive them have or take these lands or else his Successour for the time being unlesse some friend of theirs by or with the Arch-Bishops favour may continue to hold that land at or upon the accustomed rent ur upon what other contract or condition may be had or made with the Arch-Bishop then living or for the time being I shall adde but one instance more from the grant of Bocking a known place in Essex to the same Cathedral by one Ethelrich in the year of Christ 997. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is And I also give those two hides of land that Eadrith renteth or hireth yearly for half a pound So that to me it seems clear that ponere terram ad gablum is as much as to hire or let out land by or for rent or farm and by consequence terra ad gablum posita taken in its proper and genuine acception is land hired or letten out to farm or for rent In the latitude of the word it comprehends besides all censual or tributary land as also what we call customary land in that sense wherein Consuetudines Customes denote Services and so takes in all Rent-service land which with our Saxon Ancestours who called the
but because it was land which by the nature of it apperteined not to the Gentry but to the Yeomanry whose name or house they cared not so much to uphold by keeping the Inheritance to the elder brother And thus at length though 't is like enough from small beginnings as many times great streams have but narrow fountains it became so spred and diffused over all the County that what was not Knight-service but Socage-land or of Socage Tenure was in time in Mr. Lambards phrase apparrelled with the name and as may be added qualified with the properties of Gavelkynd And hence also it comes to passe both that we very rarely or never meet with any land there at this day other than Knight-service land that is not of Gavelkynd nature and of a partible descent and that withall both our printed and manuscript Custumals whether general or particular use never a word of Socage Tenure but of Gavelkynders Tenants in Gavelkynd Tenements of Gavelkynd and such like as Mr. Lambard observeth pag. 544. And notwithstanding the ancient printed Custumal in Tottell claimeth freedome onely to the bodies of the Gavelkynders which may be the truer reading yet Mr. Lambards may especially at this day passe well enough by whose copy it is claimed as due to all the Kentish men in general as for the generality of the Commons by common intendment such at this day But of these things hitherto Yet ere I proceed to the next Proposition let me discharge my self of a late promise for inquiry into the following Emergent Whether the Writ De Rationabili parte bonorum lie at the Common Law or by Custome THis Writ is grounded and dependeth on a tripartite division of a mans personal estate whether dying testate or intestate and leaving behind him wife and children as in case he leave onely a wife and no children or children onely and no wife upon a bipartite In the former of which cases one third part of the goods belongeth to the widow another to the children and the third called the Deaths-part to the use of the Defunct to be disposed either by himself as he shall see good by his will or for him if he die intestate by the Ordinary in pios usus In the latter case one moyety falleth to the widow or to the children as the case shall be and the other to the use of the dead as before In both cases to the children of the deceased each of them a rateable part provided that such child be not his fathers heir or were not otherwise advanced by him in his life time unlesse haply for hereof there is some question waving that his former portion he shall choose rather as in the case of lands to take the benefit of this partition by the way of Hotchpot which is all one with the Civilians Collatio bonorum or the Lumbards Missio in confusum See Dr. Cowell and Sir Henry Spelman in Hotchpot Now that there was any certain or definite part or portion of the deceaseds goods or estate whether real or personal any Quota pars or Legitima as the Civilians term it by any custome here nationally observed due to the widow or children in the Saxon times doth not that I can find appear by any Law or other monument of theirs now extant The plainest and most visible footsteps of that tripartite division or partition by this Writ intended appear in that remarkable place of venerable Bedes Ecclesiastical History lib. 5. cap. 13. where we read of one who Testatorlike disposing of his substance or estate Omnem quam possederat substantiam in tres divisit portiones Eâ—quibus unam conjugi alteram filiis tradidit tertiam sibiipsi retentans statim pauperibus distribuit The Saxon reading hath it more for our purpose thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Where mark the third part is there said to belong to himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. plainly insinuating that the other two as rightly apperteined to his wife and children each of them a third But withall observe that this is the act of an house-keeper in the Province or Region as there called of Northumberland Paterfamilias in regione Northanâ—ymbrorum c. so is he described and such a testimony indeed it is as makes much I confesse for the antiquity of that Custome of a tripartite division yet surviving and currant in those Northern quarters of the Kingdome but whether in right construction extensive any further or concluding for a national custome in that particular especially since traceable in few other parts or counties of the Realme by any later or elder footsteps I think may well be doubted To proceed then for I intend to state and handle the point rather as an Historian relating the matter of fact than as a Disputant arguing the case as for that Law or constitution of King Edmund which some insist upon for the widows right to a moyety of the estate if she have no issue otherwise in case of issue and remaining sole to the whole that cleerly takes place onely vigore contractus or by force of a precedent contract the Law in that particular being ushered in with this ground or supposition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. if it shall be so mutually agreed or covenanted before or upon the marriage Nor doth that Law of King Canutus par 2. cap. 68. conclude for more than this namely a partition of the estate amongst the wife children and nighest kinred to be made judicio Domini by the Lord of the Soils discretion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. rightly or according to right and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after the measure raâ—e or proportion that to them belongeth not determining or making any mention what that right that measure or proportion is in certain not the widow and children each of them a third for then where were the kinsfolks share but leaving it indâ—â—â—niâ—o and undetermined as what haply being ordered by the Lords discretion and that swayed and regulated by that optima legum interprete Custome might vary with the place Nor was any such partition currant here in case there were a will for what saith the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. If any one depart this life intestate c. implying liberam testandi facultatem a free liberty to dispose otherwise by will as doth also that Law of his Successour the Confessour ratified and re-inforced by his Successour the Conquerour providing that the children of persons intestate shall equally divide the heritage In which respect and because by taking no notice of the widow as neither doth that other Law of Canutus par 2. cap. 75. it tacitely seemeth to exclude her I know not well what much pertinent to the point in hand can be concluded from that Law And as not from this so neither I conceive from that Law of King Hen. 1. cap. 1. because it concerns
against it by the same Swinbourne fol. 113. a. gave place to this kind of tripartite division witnesse besides Mr. Lambard Perambul pag. 561. what in a book lately published intitled the City-law and said to be translated from an ancient French Manuscript pag. 7. is delivered in these words And it is to be understood that when a Citizen of the same City London hath a wife and children and dies all the goods and chaâ—tels of the said party deceased after his debts be paid shall be divided into three parts whereof one shall remain to the dead and shall be distribuâ—ed for his souls benefit and the other part shall be to his wife and the third part to his children to be equally shared between them notwithstanding any will made to the contrary c. But to proceed although Glanvill Bracton and Fleta one and all seem to conclude for this rule or order of Partition to obtein and take place by the Common Law yet as this course did not long survive them but except where particular Custome such as that whereon the Writs in the Register are grounded kept it up at length grew into dis-use in the case both of testate and intestate persons witnesse on the one hand the liberty time out of mind generally used at pleasure to dispose of personal estate made by will and on the other the Ordinaries well-known power of distribution of Intestates goods which is not without warrant from that clause at th' end of Magna Charta's 18th chap. whereof in Matthew Paris and elswhere so with all these passages in Glanvill Bracton and Fleta are so inconsistent with what in the case of testate persons themselves with almost the same breath deliver that I know not how possibly to reconcile them Whereof the former thus Potest enim quilibet homo liber majoribus debitis non involutus de rebus suis in infirmitate sua rationabilem divisam facere sub hac forma secundùm cujusdam patriae consuetudinem quod Dominum suum primò de meliore principaliore re quam habet recognoscat deinde Ecclesiam postea vero alias personas pro voluntate sua Quicquid autem diversarum patriarum consuetudines super hoc teneant secundùm jura regni non tenetur quis in testamento suo alicui personae praecipuè nisi pro voluntate sua aliquid relinquere libera enim dicitur esse cujuscunque ultima voluntas secundùm has leges sicut secundùm alias leges The other two to one effect thus Cuilibet autem sit licitum facere testamentum de rebus suis mobilibus se moventibus quatenus superfuerit deducto aere alieno scilicet debitis aliorum c. Thus in mine opinion do the same men more than seem to fight with and contradict themselves and how to set them agreed is past my skill But indeed vix tanti est 't is not much material since if we shall admit what some eagerly contend for this rule and order of partition to have sometime been by Law currant throughout the Realme yet by general disusage and discontinuance it is now and that not lately antiquated and vanished out of ure both in this of Kent and other Counties surviving onely for ought I hear in the Province of York and some few Cities and that it should ever be revived at least in the case of testate persons until first some way may if possibly be found how to dissolve this knot and remove this rub of flat repugnancie and disagreement of those ancient Authours the vouched Patrons for it with themselves in the point I for my part saving better judgement see but little reason and further than thus dare not in a case so controverted and canvased by learned and judicious Lawyers interpose any judgement of my own PROPOSITION IV. Whether Gavelkynd be a Tenure or a Custome IT will not be amisse I hope to usher in the answer to this Quaere with some digression concerning Tenures Facing then about and looking back upon the times before the Conquest inquire we out the Tenures if I may so call them then in use and what other succeeded in their places afterwards at and since the Conquest Here I expect it should be granted for 't is avouched I am sure by several men of credit that before the Conquest we were not in this Kingdome acquainted with what since and to this day we call Feoda Foreiners Feuda i. e. Fiefs or Fees either in that general sence I mean wherein they are discoursed of and handled abroad in the Book thence intituled De Feudis at home in that called Littletons Tenures or in that particularly understood of us when we treat or speak of Knights-Fee which could not then be known here when Knights themselves were not in being as saith a Record in the Cathedral of Canterbury whereof more anon they were not till the Conquerours time Or if in effect they were known to us yet in terms certainly they were not for the name of Fee or Feudum in this sence is no where to be found in any our Records or Monuments of those dayes now extant and of credit if my self and others have not been more unhappy to misse it than indiligent to seek it 'T is true it occurrs in the fifth and sixth of the Laws ascribed to the Confessour set forth by Mr. Lambard in the Varia lectio there in the margent but besides that the Text in each place reads it Fundo those Laws I take it for the most part especially as to their phrase carry not that antiquity but like those of like kind in Scotland ascribed to King Malcolm the second and King Alureds will at the end of the Story of his life penned by Asserius where the word several times occurrs savour of a later dresse The like no doubt may as truly be said of that Qui in feodo suo in the old Latine Version of King Edgars Laws following those in the original Saxon set forth in the late Edition of the Councils by Sir Henry Spelman pag. 446. And may we not upon this amongst other grounds question those Charters in Ingulphus thus far I mean as to doubt whether many if not the most of them speak not another than that tongue in which they were originally penned as being by the Authour though English born yet afterward Normaniz'd by conversing there some time as a Retainer and Secretary to Duke William afterward Conquerour and King of England whose Story is penned in Latine the better to suit with it taught to speak the Latine of his time and late Masters native Countrey upon this ground I say that amongst many other phrases scattered here and there not in use with the Saxons nor ever heard of here in England till about Ingulphus own time such as Averia Ballivus Bedellus Communa pasturae Justiciarius For is factura Tenura Weif Stray with many more such like which I forbear to name in this
Civilians is called Ager vectigalis as being liable onely to so much yearly rent without any other service regularly unlesse Fealty suit of Court or the like according as the Feoffment may run and having nothing to do with the plough to become Socage This makes Escuage certain another tenure of no relation at all to the plough but quatenus Escuage as it is simply Escuage eo ipso of Knight-service because by being certain it draws him not forth to any corporal service in war to be also termed Socage whilest contrarywise what is properly called Escuage that namely which is uncertain and so called because besides its subjection to Homage Fealty Ward and Marriage it is uncertain how often a man shall be called to follow his Lord into the wars and again what his charge will be in each journey from being liable I say to this uncertainty of duty is Knight-service Hence fourthly it is that Burgage a tenure no way smelling of the plough or tillage being currant and conversant onely in cities and towns because holden for a certain annual rent becomes with the rest Socage Hence also our Kentish Gavelkynd considered in its name or term betokening censual land of no affinity with the plough or plough-service because I say holden per certa servitia comes to be called Socage The like might be said of Frank ferme and other the remaining species of Socage-land one and all as properly so called as rightly and with as much reason referred to that head of our English tenures as that which for its plough or tillage service is said to be more peculiarly so called standing not in need of that distinction which the common opinion useth to bring them within the compasse of it called ab effectu because of like effects and incidents belonging to them with Socage tenure a distinction by this derivation rendred frivolous and needlesse and under favour therefore as fit to be laid aside as their assertion is to be retracted who to vindicate the reteining of the name of Socage as of use onely to distinguish that from a tenure by Knight-service affirm that the cause wherupon the name of Socage first grew viz. Plough-service is taken away by the change of such service into money whereas presupposing our present derivation of Socage to be admitted both name and cause still continue Thus much for Socage a term that to me first occurrs in Glanvill never as yet in any elder Record In a Roll of Accompts of the Archbishop of Canterburies mannours for the sixth year of Archbishop Baldwyn Glanvills Coaetanean and Companion in his voyage and expedition with King Richard the first to the holy land which by computation was the year of our Lord 1190. it occurs by the name of Soggagium thus Super Soggagium London remanent xx d. and this in Croydon manour there amongst the expences and deductions following the receipts of that year Which I mention not as conceiving it no elder than Hen. 2. dayes yes I rather hold Socmannus Socmanria and Socagium to be relatives and consequently that where the one occurrs the rest are implied but Socmannus is obvious in Domesday-book and lesse ancient therefore I perswade my self Socage and Socmanry are not Nunc age carpe viam susceptum perfice munus Now therefore to come to our Quaere whether Gavelkynd be a Tenure or a Custome and give it an answer I confesse there are that in some sort hold the negative as who will have it to be a Custome accompanying the land where it obteineth rather than a Tenure whereby the land is holden holding the whilest the Tenure to be Socage And of this opinion Mr. Lambard doth more than seem to be Now between Tenure and Custome in this case with us the difference as I collect stands thus admit it onely a Tenure and then the nature of the land is not concerned in point of descent so that in some cases as the escheat of it by Death or Cessavit to the Lord that holds over by Knight-service or to the Crown by forfeicture in treason and the like it ceaseth to be any longer of Gavelkynd-nature in point of descent and goes not as before to all but onely to the eldest of the sons according to the course of the Common Law whereas if it be a Custome following the nature of the land then it is say they inseparable from that land where it obteineth insomuch as notwithstanding this escheat or whatever other alteration of the tenure it remains as before partible among all the sons or other heirs where sons are wanting But to the point To prove Gavelkynd to be a â—enure I shall not need I think to multiply authorities the generality of those ancient deeds that I have seen for the granting lands in Gavelkynd whereof some are exhibited in the Appendix are wont to have their Tenendums the usual and more proper place for the creation of a tenure in any kind of grant thus phrased Tenendum either ad or in Gavelikendam or the like The office recited of Mr. Lambard in his Peramb pag. 540. found after the death of Walter Culpepper is alike phrased Tenuit in Gavelkind being a much repeated passage in it The Statute 18. Hen. 6. cap. 3. in terms calleth it a tenure taking knowledge that there were not at that day within the Shire above 40. persons at the most which had lands to the yearly value of xx pounds without the tenure of Gazelkynd and that the greater party of this County or well nigh all was then within that Tenure And this alone which I shall add may evince and clear it to be a tenure that since the Statute of Quia emptores terrarum anno 18. Edw. 1. prohibiting the subject to let land to be holden of himself as there are not to be found any more grants of land pro homagio sâ—rvitio so neither in Gavelkynd For brevity sake I will urge no more authorities of this kind Being thus then apparently a tenure how cometh it to passe that we so usually call it the Custome of Gavelkynd seldome either making or finding mention of Gavelkynd but with that adjunct and under that notion of Custome Indeed the property of equal partition is and hath so long been of that eminencie in our Kentish Gavelkynd and it so much celebrated for that property that as if it were the sole and onely property of it all the other in respect wherof this land may as well be called Gavelkynd as for this are as it were forgotten and that onely carries away the name from its fellows whereas that of Partition as hath been said before is but one among the many other properties and customes in our Kentish Gavelkynd such as Dower of the Moyety Losse of Dower by marriage before or after assignement Not to forfeict lands for Felony Power of alienation at fifteen years of age and the rest obvious
deviseable by custome So that the mistake ariseth by making that a categorical which is but an hypothetical proprosition and serves rather to ground an argument against the custome For if the writ of Ex gravi querela does lie there where there is such a custome then à contrariis it may well be argued that where a writ does not lie there is no such custome and it cannot be said to lie there for Fitzherbert speaks of places where it was never brought They say further that this writ of Ex gravi querela is a formed writ in the Register appointed by Law as the proper remedy of the Devisee where such a custome is and that therefore it hath been required by the Judges as a necessary proof of such a custome that it be shewen that this writ hath been used to be brought there where such a custome is alleaged to be 40. Assis pl. 41. and the opinion of Knivet 39. Assis Brooke Devise 43. In like manner as to prove a custome of intailing Copy-hold-lands it must be shewn that plaints in the nature of Formedons have used to be entred Heydons case in the third Report But they say that for proof of this custome in Kent there is not onely of 14. in the Register which all conclude secundùm consuetudinem Burgi or Civitatis not one precedent of any such writ for Kent but that it cannot be shewen that ever any writ of Ex gravi querela was brought for any lands in the county at large out of some City or Town And it is a question to whom such writ at large shall be directed there being no form at all in the Register of the direction of any such writ at large the form there to a City or Burrough being either Majori Civitatis or Burgi c. They say it could not be but that question must have arisen if not of the custome whether a will or no will for the trial of which there was scarce any other course at least none more ready before the course of Ejectments grew to be the practice then either for the Devisee to bring this writ of Ex gravi querela against the heir being in possession or for the heir being ousted by colour of a will to bring his Mortdancestor And therefore they think it not credible that if such a custome were and so extensive as to the whole county of Kent there should be no Record if there be they again challenge the other side to shew it whether any Deviâ—ee either brought this writ or pleaded this custome and pleaded it must be as themselves acknowledge and is resolved in Launder and Brookes case for any lands within the county of Kent out of some City or Burrough when as they are confident to say that there is not any custome used in Kent and that extends through the whole county but Records may be shewen where it hath at some time been judicially pleaded and allowed They add that Customes being special Laws are suted to the place where they are used and that this is a custome very proper and sutable in Cities and Burroughs among Merchants and Tradesmen that they might dispose of their houses together with their personal estates and that the pleading of this custome in all Writs and Records is that they are legabilia tanquam bona catalla And therefore by the books of 40. Assis pl. 41. and Cokes 1. Instit 110. it is held that this custome cannot be alleaged in any upland Town Then how improper is it that all the estates in so great a county should be of no other nature in this respect than goods and chattels and liable to be disposed and carried away by words catcht from dying men which they say may serve too for an argument against the pretended benefit and utility of this custome especially when the multitude of controversies arising upon wills have made it a question whether it had not been better the Statutes of 32. and 34. Hen. 8. of wills had never been made And therefore they say that in Wyld's case in the 6th Report which was resolved by all the Judges of England it is said expressely and no doubt upon good consideration that at the Common Law lands were not deviseable but by custome onely in Cities and Burroughs Houses and such small things And in Matthew Menes case in the 9th Report where the will was of Gavelkind-lands in Kent and a house holden in Capite it is all along held that the will there was enabled by the Statute and puts a case of lands in London deviseable by custome as a stronger case which certainly it were not if lands in Kent were so deviseable The third objection from the words doner on vender they say deserves no answer more than this that the same words are used that the Infant may doner or vender give or sell his estate at the age of fifteen and that no man will say that he may at that age make a will Thus have you the learned Counsels arguments faithfully exhibited both for and against the custom of devising Gavelkynd-land in Kent before the Statutes of 32. and 34. Hen. 8. concerning the devising of lands by will Treading as I said in the steps of those who oppose the custome give me leave by the way of Corollary to add somewhat haply not improper to be hinted and insisted on in this argument Besides then the repugnancie in this custome to the common opinion both of ancient and modern Lawyers it fights with the very nature of Fee comprehending at least with us Gavelkind as holden by the Tenant in Dominico suo ut â—e Feodo which though Fees are with us as in France elswhere become patrimonial so alienable by gift or sale followed with Scisin in the Alienators lifetime yet by the seudal Law are indisposeable by will several reasons whereof are found rendred by the Feudists And it is inconsistent at variance with the common opinion of Lawyers both at home and abroad so withall and above all it makes Gavelkynd degenerate from it self and its first original which our Lawyers and Antiquaries by an unanimous vote referring to the Germans vouch for it that amongst other of their Customes published by Tacitus Haeredes successoresque sui cuique liberi nullum testamentum a passage or authority equally insisted on by the Feudists to warrant their Nullâ ordinatione defuncti in fendo manente vel valente prohibiting the disposal of Fee by will and of our municipal Lawyers and others as for the like so withall to illustrate the original of our Gavelkind But that which in this case as to matter of fact very much if not most of all works with me what it may with others I know not and induceth me to an utter dis-belief and rejection of this Custome is certain passages clauses in several wils extant to be found in our Registers at Canterbury and
I will that Richard Hubbard the son of William Hubbard of Lynsfield shall have my house and all my land if that the Law will suffer it paying therefore to every one of my sisters Agnes Katherine and Margaret three pounds six shillings and eight pence to be paid within the space of two years next after my decease 8. Nor is this passage lesse pregnant and pertinent to our purpose taken from the will of John Stace of Leigh dated the 18th of March 1538. in the same Registry And also I will that if the Kings last Act in Parliament will not stand with my wife to enjoy the one half of my lands I will then that mine Executour shall pay yearly to Agnes my wife xl s. during the term of her life and that to be paid quarterly at the four usual terms by equal portions c. Argument In these five last wills mentioned Sarlys Byx Hunt Hubberd and Staces what means that doubt and question in the Testators whether their devises of houses and lands were good or would hold and stand firm in Law had there been such a Custome and had not the Law been clear otherwise in this case as well in Kent as elswhere I observe also that in the interim of 27. and 32. H. 8. some few and indeed but very few wills there are in the Registers at Canterbury wherein lands are devised some with Feoffment and some without at least without mention made of any As for the former those with Feoffment I find the most of them dated though in or after the year 27. yet before the sixth of May 28. year of that King until when the Act was not to come in force Besides happily the Feoffment was made before the Statute and so could not be revoked as I conceive without the Feoffees consent As for the rest those without mention of Feoffees some of them were of our City Canterbury or the like places where by particular Custome they might devise Others happily had Feoffments although not mentioned If not they were no other I conceive than wills de facto or de bene esse made nor did or could otherwise or further operate inure or take effect than the interessed or concerned parties should give way with whom in those elder times times of more and greater regard and reverence to the will of the dead than the present the dying parent or kinsmans mind declared in his will bare so great a sway and did so much prevail as to perswade with them to renounce an advantage to themselves for the fulfilling of the deceaseds solemne and declared mind Besides it follows not that because such wills and devises are found therefore they passed and were allowed of as good and effectuall the contrary whereof is more than probable by the ifs and conditions found in other wills of those times arguing plainly the Testators distrust and doubt of the validity and consequently of the successe and effect of his devise whereof examples are laid down before Before I close and wind up all I have onely this to add by way of offer from the party opponent to this Custome and his Councel which as a matter much considerable I may not pretermit that whereas that abundance of wills wherein lands are devised without mention of Feoffees found and produced from the Registries both of Canterbury and Rochester is much insisted on in behalf of the Custome if from the Registries of any other Diocesse out of Kent where such devises never did nor could obtein until the Statute of Wills of equal circuit and extent to either of these the very same thing may not as truly be observed and a proportionable number and quantity of such kind of wills wills of lands devised without mention of Feoffees cannot be produced and consequently the argument and inference thence drawn for the Custome cluded and avoided they will sit down convinced and with their adversaries subscribe unto that argument An offer this in my judgement so fair ingenuous and plausible as not to be rejected of any but such as out of a cavilling spirit are resolved to turn the deaf ear upon all fair and equal proposals that I say not such as for maintenance sake make it their study quocunque modo to maintain their spurious interest But that I may not seem to be what indeed I am far from being any otherwise than in truths behalf a partisan in this businesse I shall forbear all further censure and if I may but have the Readers leave to make my Epilogue I shall with thanks to him for that and the favour of all his other patience quit the stage of my discourse on this whole argument and make my Exit Many other things offer themselves to his discourse that would treat of Gavelkind to the full but they are I take it mostly points of Common Law which because they are not only out of my profession but besides my intention too which was to handle it chiefly in the historical part and that no further than might conduce to the discovery of the Primordiae or beginnings of it I will not wade or engage any further in the argument lest I be justly censured of a mind to thrust my sicle into another mans harvest onely so a close craving leave to supply the common Kentish Custumal at the end of Mr. Lambards Perambulation with one clause which according to an ancient copy registred in a quondam book of St. Augustines Abbey at Canterbury now remaining with my very noble and learned friend Sir Roger Twysden is to come in at pag. 574 lin 2. after these words Que de lay est â—eâ—â— sans men viz. as that old copy gods on there Eâ—si home ou femme seit feloun de sei mesmes qeil sâ—y mesmes de gre se ocye le Roy aura les charteuz tuts niâ—nt l'an nele wast mes se heir seit tautost enherite sans contredit kar tout seit il feloun de sey mesmes il neyt my atteint de felonye Et clayment auxi c. as it follows in that printed Custumal Which clause as I conceive may be thus Englished And if a man or woman shall be a Felon of him or her self who shall kill him or her self of his or her own accord the King shall have all the Chattels and not the year and the waste but the Heir shall immediately inherit without contradiction for albeit he or she be a Felon of him or her self he or she is noâ— attainted of Felony Now craving pardon for what liberty I have taken to deliver my sence and give my conjecture on severall occasions here emergent I shall here cut the thred of this Discourse wishing that as I have not spared freely to speak my mind so that every man that pleaseth should assume the like liberty not susâ—ecting me so opinionate of mine own vote as to wish much lesse to beg least of all to importune any unwilling mans concurrence though haply unprovided
pleasure ibid. censual not censual 35. how many several kinds of land before the Conquest 114. as also since 115 Landagendman what 15 Land-boc what 112 Land-gabel what 15 Land-gafol what ibid. Leaf-gavel what p. 27 Lef-silver what ibid. Les-gavel what ibid. Les-gold and Les-yeld what ibid. Liberum feodum what 56 Lyef-geld what 27 M. Mailer what p. 34 Mailman what ibid. Mail-payer what ibid. Mala what ibid. Malt-gavel what 27 Malt-peny what ibid. Malt-shot what ibid. Manopera what 24 Mete-gavel what 31 Mirroir the book so called censured 104 Molland what 117 Molmannus what ibid. Monday-land what 120 Mortdancester the Assise so called where it lies 152 157 Mortmaine what 40. the tenure of it double ibid. N. Names to be sutable with things very convenient 11 Nativi in Kent 75 Neatland what 114 Nidering alias Nithing a nickname of what signification whence derived 65 O. Oale-gavel what 24 Ordericus Vitalis his relation of the Conquerors proceedings and progresse after his victory neer Hastings p 71 Ordinary his power of dâ—stributing Intestates goods here in England when beginning as also in Scotland and Normandy 79 Over-land what 119 Out-average what 116 P. Parceners how many sorts 42 Paroc what 23 Partition in Gavelkynd land neither from the name nor nature of it onely 44. nor from prescription 46. but partly from the nature of it and partly from custom and what 47. the antiquity of it 61. whether inherent in the land 247 150. why more general in Kent than elswhere 52 61. whether brought hither by Odo out of Normandy 61 81. whether continued there by composition with the Conquerour 62 Partition but one property or branch of Gavelkynd 48 146. out of Kent whence obteining ibid. 54 Partition of goods 79 Peny-gavel what 26 Some Phrases in Ingulphus ancient Charters questioned p. 101 Pictavensis his relation of the Conquerors proceedings and progresse after his victory neer Hastings 69. himself the Conquerours Chaplain and an eye-witnesse ib. Portfocâ— what 135 136 Portsoken what 135 Potura what 29 Prescription not good in Gavelkynd and why 44 R. Rationabili parte bonorum 78 91 Redditus albi what 34. nigri what ib. Restitution a Charter of it by the Conquerour 68 Rip-silver what 19 Rochester Castle besieged by Will. 2. 64 Rod-land what 117 Romney the Conquerours passage by it in his march to Dover 69 S. Contract of marriage in Saxon 75. the edition of it corrected 76. Several wils in Saxon 85 Scip ship in the termination of words what signifying 106 Scotale what 29 Scrude-land what p. 119 Seisin how delivered in the Saxons times 112 Servi in Kent 74 Servitus rusticana 127 Sextary-land what 119 Smithesland what 118 Soca Socha Soke Sokne what 133 137 Socage free and base 55. the derivation of the word and what it signifies 129. whether it and Gavelkynd Synonima's 55. its original 127. opposite to Villenage 139 Socage-land and service so called elswhere in Kent termed Gavelkynd 49 Socagium the distinction of it into liberum and villanum whence 141 Socmanni 137 Sokerevi 134 Sokmanry 137 Spelman Sir Henry his derivation of Gavelkynd 3 Spots story of the Kentishmens encounter and composition with the Conquerour exhibited questioned refuted 63. a meer monkâ—sh â—igment and why devised 71. when he lived 64. his commixture of falsity 63 Stigand the Archbishops deposing for opposing the Conquerour not warranted by ancient story 75 Sul-aelmesse what 132 Swilling-land what 117 Swine-gavel what 23 Swine-money what ib. Swine-paneges what ib. Swinhey what 190 T. Tainland 121 Tenure all land in England subject to it 126. how different from Custome 144 Tenure 1 by Divine service 2 in Frankalmoigne 3 in Fee ferm 4 by Petite Sergeanty 5 by Escuage certain 6 in Burgage all Socage and whence 130 141 Tenure in Mortmaine twofold 40 Tenures in Chivalry and Socage all lands both in Kent and elswhere throughout England reducible to one or t'other of them 129 Tenures in Gavelkynd new created 9. what before the Conquest 112 Terra ad gablum posita what 14 Terrae censuales what 36 Terra haereditaria 84. libera 58 84. susanna 118. testamentalis 84 86. unde nemini respondetur 120 Thegenes 1â—3 Theines p. 123 Threnges ibid. Tol-sester what 24 Truth often lost by too much altercation 62 Twy-gavel what 28 Twy-sket what ibid. V. Verstegan his derivation of Gavelkynd 3 Villani in Kent 73 Villenage opposite to Socage 139 Villeine services when first ceasing so generally in Kent 58 Villeine and Villenage in England in the Saxons time 66. in Kent since the Conquest 72. and in Gavelkynd land 73. as also before the Conquest 75 Vilienagium privilegiatum 141 Unlandagend what 1â— Utland 114 W. Wareland what 118 Weilreif what 65 Were-gavel what 28 Werk-gavel what 26 Werk-land 57 White-rents what 34 Wills in Saxon 85 Wood-gavel what 26 Words in Ingulphus more ancient Charters a sort of them questioned 101 Work-land what 115 The Writ De rationabili parte bonorum whether lying at the Common Law or by Custome 78 91 The Writ of Ex gravi querela where it lies 153 159 Y Yoke-land what 117 FINIS a Nomina si nâ—scis perit cognitio rerum Isid Oâ—ig l. 1. cap. 7. Arist 1. Phys 2. Metaphys Idem 2 Metaphys Sir Hen. Spelman in voce Gaveletum Britannia in Kent * The English Lawyer p. 73. * Interpreter in voce Perambul p. 528. a See the addition to Dr. Casaubons Treatise of Use and Custome b See Sir Ed. Coke Instit part 1. fol. 115. a. ff de Reg. Jur. l. quod ab initio c Duarenus Commenâ— in Tit. de Pactis p. 49. â— d See Kilianus Diction verb. Knecht Lamb. Peramb p. 547. Vid. Dictionar nostr Anglo-Sax iâ— vocâ— e Davies Reports Le Iâ—ish Cust de Gavelkind fol. 49. f â—racton de acqâ—iren rer dominio fol. â—4 a. g De morib Germanor h l. inter filios l. famil hercis l. si quis à liberis â—f de lâ—b agnosâ— l. si major in si l. communi divid i Lib. 1. Feud tit 6. Parag. 2. ibi Hoâ—om k Li. Hen. 1. c. 70. Glanvil li. 7. c. 3. Bracton fol 65. a. l And another in the Appendix Scripturâ— 9 m See Vulteius de Feud li. 1. c 8. nu 37. p. 341. n Glanvil lib. 7. cap. 1. o See the â— Proposition p Perambuâ— p. 544 q Anno 18 Edw. 1. r Lib. 3. â—â—l 374. a. †Conveniunt rebus nominâ— saepe suis Å¿ Nominae cum re consentiant Platâ— de Sapient Gafol what signifying Glossar verb. Gabellâ— Å¿ Peramb p. 529. t Instit p. 1. fol. 142. 2. u In Archiv Eccles Cant. †fortè heâ—eâ— Conteining four gallons so Fleta lib. 2. cap. 12. x Coke Instit p. 2. p. 58. y Spelm. Gloss in voce z Lamb. Archaion fol. 45. cap. 2. a Spelm. Gloss in voce â—avel-â—orn Corn-gavel Cavel-erth * In Archiv Archiep. Cant. Biaus Benerth a Et omnes tenentes de isto jugo
it peculiarly belongs to grant out or passe land in that kind Carta Alodii ad aeternam haereditatem being there reckoned and ranked inter consuetudines Regum inter Anglos Now as our Bocland did not presently expire with the Saxons its first Authours upon their vanquishing and supplanting by the Normans so neither did our Folcland but survived and continued after the conquest and remains unto this day though not in the very name yet in the thing and substance For as aforetime the Saxons had their Ceorles Gebures Folcmen c. as afterwards the Normans their Villani Bordmanni Cotarii c. so what the former held was called Folcland Gafolland c. and was opposed to Bocland what the latter Villenage and In some sence Socage opposed to Chivalry Knight-service c. and in all likelyhood intended by that Rusticana servitus occurring in a charter of Walâ—heâ—â—nus Maminoâ— granting the â—â—thery of Bertrey to the Church of Rochester Quod si aliquid de prâ—dicto Dominio in rusticanam servitutem translatum est c. as it is in Mr. Seldens History of Tâ—thes cap. 11. pag. 313 As for the original of Socage there are that refer us for the finding of it to a notable passage in Gâ—rvasius Tilburiensis his book intituled Dialogus Soâ—ccarii who lived and wrote in Hen. 2. dayes which to bring the Reader better acquainted with the state of affairs in the disposal of our Countrey-mens Free-hold in those elder times when as the English State was new moulded I here offer to his view Post Conquisitionem c. i. After the Conquest of the Kingdome and the deserved subversion of the Rebels when the King himself with his Nobles surveyed his new Countrey a diligent inquiry was made who they were which taking part in the war agaist the King had saved themselves by flight to all these like as to the heirs of such as had fallen in the war all hope of any lands possessions and rents which formerly they enjoyed was cut off For they accounted it no small favour to escape with life under enemies But those who when summoned came not to the war or being occupied in houshold or other necessary affairs were absent when in processe of time by their constant serviceablenesse they had ingratiated themselves with their Lords without hope of succession their children onely and that but at the Lords will began to possesse Afterwards when becoming odious to their Lords they were every where expelled their possessions nor was there any that would restore what was taken away a common complaint of the Natives came to the King that being thus hated of all and bereaved of their estates they should be enforced to betake themselves to forein parts At length after consultation upon these matters it was decreed that what by their deservings and upon a lawful agreement they could obtein of their Lords should be their own by inviolable right But they should challenge nothing to themselves by name of succession from the times of the Nations subduing Which thing truly how discreetly it was considered of is manifest especially when as thus by all means for their own good they were bound from thenceforth to apply themselves by constant serviceablenesse to purchase their Lords favour Insomuch as who of the conquered people possessed lands or such like obteined them not as seeming to be due by right of succession but in recompence of his deservings or by some intervening agreement Hence we see how precariously matters stood with the generality of our poor countrey men in point of estate in those dayes and with what observance and obsequious respect they were fain to carry themselves towards their conquering Disseisors to purchase many times but a Modicum of what had lately been their own and when they had it see withall upon what kittle rottering uncertain terms they held it The relation comes from a very good hand and is so authentike as for ought I know it may be credited for it self But if any man expect further confirmation I suppose it may be found in Bracton lib 1. cap. 11. num 1. where he hath this passage and is in part seconded in it by Fleta lib. 1. cap. 8. Fuerunt etiam saith he in Conquestu liberi homines qui liberè tenuerunt tenementa sua per libera servitia vel per liberas consuetudines cum per potentiores ejecti essent postmodum reversi receperunt eadem tenementa sua tenenda in villenagio c. The same Authour fol. â—6 and elswhere tells us of a sort of Tenants ad similitudinem Villanorum Sockmannorum per conventionem de gratiâ Dominorum licet hoc esset ab initio villenagium c. a passage if not totidem verbis yet in substance often repeated of him in my judgement intimating thereby that practice of the Tenants currying favour and complying with their Lords whereof in Tilburiensis and their obteining thereby to better their estates and by degrees to creep out of Villenage into a kind of Socage a Tenure thus grown to that latitude and so comprehensive as it helps to make that Dichotomy into which all the Kingdomes lands in the hands of common persons in point of Tenure are resolved Chivalry being the other Now being of such note a little further enquiry after the antiquity of the thing and etymologie of the name to clear the truth in both wil not do amisse as I conceive in this discourse of Tenures By the common and received opinion of our Lawyers derived I suppose and first suckt from that great Ornament of their Profession Bracton the term is said to come to use the Authours own words à Socko inâ—e tenentes quitenent in Sockagiâ— Sockmanni dici poterant â—o quod deputati sunt ut videtur tantummodò ad culturam c. This of Bracton is strongly backt by Littleton in his book of Tenures where treating of Socage he saith that the reason why such Tenure is called and hath the name of Tenure in Socage is this because saith he Socagium idem est quod servitium Socae Soca idem est quod caruca c. A Soke or a Plough In ancient time for so he adds for further confirmation before the limitation of time of memory a great part of the Tenants which held of their Lords by Socage ought to come with their ploughs every of the said Tenants for certain dayes in the year to plow and sow the Demesne of the Lord. And for that such works were done for the livelyhood and sustenance of their Lord they were quit against their Lord of all manner of services c. And because that such services were done with their ploughs this Tenure was called Tenure in Socage c. Thus Littleton followed by the generality of our common Lawyers and others since not without a kind of popular errour as under favour I conceive and with
submission to better judgements shall endeavour to evince without check I hope for presuming to control so great so many and those eminent Lawyers whereas here I oppose them not in point of Law but onely in matter of fact The first exception then that I take against this opinion is its inconsistencie with many several species of Socage-land or land said to be of Socage kind or tenure such as Petite Sergeanty Escuage certain Frankalmoigne Fee-ferm Burgage By Divine service and the like which have no manner of relation to the Plough or matters of Husbandry as originally they say Socage had and therefore still reteins the name though the cause whereupon it first grew be taken away by changing the service into money So Littleton An exception this warded off by the Patrons of the present derivation with a distinction of a double kind of Socage the one that so called à causâ the other ab effectu and to this latter sort Socage in effect are these of them referred as one would say Socage at large because partaking of the like effects and incidents with Socage But this distinction carries with it no great antiquity being questionlesse sought out since Bractons time as necessary to uphold that of his and his followers derivation of Socage from the Plough otherwise so inconsistent with these Tenures Not but that I hold them to be Socage with the common opinion but from another cause as I conceive whereof anon In the mean time I have a second exception against the derivation which is this that though that of the Plough may be the chief service wherein Socage is conversant yet are the Sycle and the Syth the Fork and the Flail and many such like attendants also upon it and concomitant services with it in Socage-land to derive then Socage ab aratro that being but one species of Socage-services is as improper under favour as at this day to define Feudum comprehending whatsoever fee is constituted for any lawful and honest service although not military by what the Feudists call Clientela militaris because a chief part of feudal service is military and that of old Fees for the most part were granted out militiae causâ an error into which Vulteius challengeth Hotoman to have fallen in his definition of Feudum thence which my Author cals a definition of a genus by a species concluding it not logical A third exception taken to it may be this that if Socage-land be so ancient under that notion as King Alfreds time as some will have it who tels us that in those dayes Socage-fee was divided between the heirs males why then was it not rather from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying what Soc never did with them a Plough whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for Plough almes being a pension of a penny imposed upon every Plough in the name of Almes called Sulh-age or Sul land to say Plough-service-land or how could it in those times be called Socage in the sence by this derivation intended when the word Soc if it signifie a Plough as it doth a Plough-share being in that sence a French word cannot in any reason be thought to have taken place here I mean in the Saxons times and so long before the French by their Conquest and intermixture with us following thereupon had prevailed to suppresse and extirpate the English language But if it cannot pretend to so much antiquity as being a term as well in the original as in the sence Norman or French then probably they would not have imposed it without some pattern some precedent of their own Countrey as used there in like case but doubtlesse this was wanting their term for land of this condition being Tenement Villein Villein Fief Fief Roturier Heritage Roturier and the like Besides had the term been of their imposing with intent to have it signifie Tillage-service Charâ—â— being the usual word with them for a Plough fetch 't from Carâ—â—â— whence their Carucata terrae for a Plough land noâ— heard of here with us until their coming hither more likely it had been called Carucagâ— or the like as a certain Tribute by our Hen. 3. imposed by the Plough was therefore called Caruage Carucage and the like My next and last exception is from Fleta's derivation of Socmanni where speaking of the Kings manours he saith In hujusmodi verò maneriis erant olim liberi homines liberè tenentes quorum quidam cum per potentiores è tenementis suis ejecti fuerant eadem postmodum in Villenagium tenenda resumpserunt quia hujusmodi tenentes cultores Regis esse dinoscuntur eis provisa fuit quies ne sectas facerent ad Comitatus vel Hundredos vel ad aliquas inquisitiones assisas vel juratas nisi in manerio tantùm dum tamen pro terra quorum congregationem tunc Socam appellarunt hinc est quod Socmanni hodie dicuntur esse A Soca enim derivantur c. Where though he say that the Socmanni were Cultores Regis yet he sayes not that thence they were called Socmanni but that their Congregation their Assembly or Company was called Soca and hence it is faith he that they are termed Socmanni for they are derived from Soca c. Thus he Now if from Soca an Assembly of Husbandmen then not from Soc Sock or Soke a Plough To come now to that which I conceive to be the right and genuine derivation of the term Socage To expresse a Liberty Immunity Franchise Jurisdiction Protection Priviledge c. our Saxon Ancestours were known to have and use a word somewhat variously written of them viz. Soc Socne Soken and the like Hence to proceed to instances Sanctuary the priviledge sometime so called was of them termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 With them also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signified a jurisdiction to keep the peace 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an immunity from service in war or from warfare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Lords protection to his man or Tenant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being of a double sence signified both a priviledge or protection against assaults upon a man in his own house or under his own roof and a liberty or franchise to hold plea thereof with power of animadversion by mulct or fine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 imported a liberty or priviledge of Faldage debarred and denied unto Tenants in times past and by the Lord for the inriching his own Demesne lands reserved to himself Hence their word Faldwrth for him that enjoyed such a liberty Shall I now give you one example from the Normans Nullus enim Socnam habet impunè peccandi say the Laws of Hen. 1. cap. 24. speaking of Barons having Soch And to enlarge yet a little further touching Soc c. as it signified a Liberty Immunity Franchise Priviledge Jurisdiction c. so withall a Territory