properties incident to our Gavelkynd it might and no doubt but doth differ from it Besides that such partible land elswhere should be called Gavelkynd will not stand with out premised grounds excluding Prescription in Gavelkynd land whereas in such places abroad though haply not in whole Counties yet in particular Manours I conceive it 's necessary even in their Gavellonds whereof I find mention made in several manours out of Kent as some in Kent to shew quod terra illa à toto tempore c. partibilis fuit partita the accustomable actual partition of it being there as necessary to be pleaded and proved as its capability of such a property Add hereunto that if all partible land were Gavelkynd rendred such by partition alone then were Bractons Sicut de Gavelkynd vel alibi ubi terra est partibilis ratione terrae an improper expression We are told that this Custome of Gavelkynd partition takes place hath done at least in other countries or counties besides Kent and Littleton instanceth in North-Wales But what custome I pray a custome indeed like to that in the Scottish Socage land of partition that 's true and testimonies of it are obvious such as besides that of Littleton Statutum Walliae the Welch History and some Acts of Parliament But still I say no Gavelkynd-custome taken in its true plenary and compleat acception comprising all the properties of it obvious in the Custumal As then for other Countrey-mens communicating with us of Kent in the Tenure I conceive it first came up by way of imitation of our example in Ireland especially and amongst the Welch-men in whose Vocabulary or Dictionary the word is sought in vain as it is also in that old Statute which concerns them Statutum Walliae where though mention may be found of a custome there obteining of partition of their lands like to that of our Kentish Gavelkynd yet without any one word of Gavelkynd And if perhaps it may be found in their deeds charters or other records yet as one saith in a case not much unlike conditioned to this of ours whose words with very little variation I shall therefore take up here Suspicari licet hanc voâ—em pluribus illorum chartis actisque publicis nâ—n tam illorum quà m pragmaticorum usu ac instituto invectam i. e. 't is to be suspected that it had its imposition and was first transmitted hither by our Lawyers who borrowed the term to make use of it for illustration sake like as of late I am perswaded the Parliament did in that Stat. 34. Hen. 8 cap. 26. where the term of Gavelkynd haply is but borrowed to help describe and illustrate that partible quality there mentioned of the lands in Wales which I am the more induced to conceive because in a former Statute concerning Wales namely that of the 27th of the same King cap. 26. making mention of this partition Gavelkynd is not at all remembred In imitation then as I conceive of the Kentish-men the generality of whose partible land of long time hath notoriously been known by that title and whose lands alone of all the Counties of England at this day be of the nature of Gavelkynd of common right this name or term of Gavelkynd in lands elswhere of like condition in matter of descent hath been taken up and is reteined By that which hath been said I may be thought to incline to their opinion who hold that Socage and Gavelkynd are Synonyma terms identical and of one and the same signification here in Kent and that consequently what land here is of Gavelkynd-nature is of Socage-tenure as on the other side what land is of Socage-tenure is of Gavelkynd-nature I answer No for I require in this case I mean to make Socage land here in Kent ipso facto partible after the custome of Gavelkynd that it be granted out and holden in Gavelkynd expressely or in terms equivalent as I said before yet with that distinction oftimes wherewith I there qualified it Notwithstanding I am not of their mind who distinguishing between free and base Socage in Kent make the natures of their descents divers the free Socage say they descending to the eldest alone the base falling in division between him and all his brethren Thus Mr. Lambard in the person of others to help justifie whose distinction with the inference upon it he there exhibits an Inquisition taken after the death of one Walter Culpepper making mention of divers parcels of land and annual rents holden by the deceased at his death some in liberum feodum others in Gavelkynd the former of which by the verdict of the Jury was to go to the deceaseds eldest son alone the latter in common amongst him and the rest of his brethren Thus the Inquisition which as Mr. Lambard there follows it cleerly distinguisheth free Socage from the Gavelkynd interpreting it seems liberum feodum there by Free Socage and it may be rightly however I crave leave of dissent and as it is but fit shall give my reasons For my part I never found Free Socage any where expressed by that term or in Latine rendred Liberum feodum nor perhaps to those of more diligence and more conversant with our Law-records than my self hath it ever occurred under that notion Nor have I met with any Free Socage as this here not subject to the rendring of some kind of service either in denariâ—s or otherwise By Liberum feodum I understand sometime Feodum militare which is often in old Records called Liberum feodum In a very ancient Rental of Southmalling manour in Sussex we have this title Liberi feodi and under it Godefridus Walensis tenet 111 feodos milit in tenemento de Malling quartam partem unius feodi apud Terring per liberum servitium armorum suorum Willmus de Bransa tenuit apud Adburton unum feodum militis per liberum servitium armorum suorum And so some others Apposite here is that of Bracton Notandum saith he quod in servitio militari non dicitur per liberum servitium ideo quiaconstat quod feodum tale liberum est c. Sometime also by Liberum feodum I understand what I conceive it doth principally denote unto us Frank Fee that is by the Feudists definition such prâ— quâ— nullum omninâ— servitium praestatur and therefore is of them reckoned inter Feudastra or Feuda impropria And such as this seemeth to be meant by Liberum feâ—dum in that Inquisition because it is there in terminis expressed to be holden just after the manner of Frank Fee by the precedent definition of it absque aliquo servitio inde faciendo And if Frank Fee then in probability not Socage for as all the land in the Realm say our Books is either Ancient Demesne or Frank Fee so none say they is to be accounted Ancient Demesne but such as is holden in Socage
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-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-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-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
in the Kentish Custumal And because this of Partition amongst the rest properly depends of Custome as thwarting the course of the Common Law in like case hence the Quaere grew at first whether Gavelkynd were a Custome or a Tenure Indeed a very improper and incongruous Quaere and occasioned by the want of that distinction of the Genus from the Species which through inadvertencie are here confounded Gavelkynd being the Genus Partition the Species So that if we shall but reddere singula singulis this doubt will quickly have an end Gavelkynd generally spoken of and in grosse is the Tenure particularly and with reference to this Partition it is a Custome accompanying the land of that Tenure Or if you rather will Gavelkynd is the Tenure Partition and the other properties the Nature Which Solution gives occasion of another Quaere and that indeed a main one Whether namely this Custome of Partition in Gavelkynd-land be so inherent in the land and so inseparable from it that notwithstanding the Tenure of the land be altered yet the land shall stâ—â—l retein this property No more I take it than the rest of the fellow-properties as much depending upon Custome as that and for which the land may deserve the name of Gavelkynd as well as for that and therefore some perhaps will say it shall retein them all indifferently I shall not here ingage as an opponent onely invited by this fair occasion crave leave to propound Academically what in like case I find delivered by others conducing in my judgement to facilitate the resolution leaving it to such as have more will to debate and better skill to decide the question than my self to give a fuller and more peremptory resolution in the point I may I take it not improperly state the question thus Whether the person in this case shall follow the condition of the land or on the contrary the land that of the person The former it seems takes place in Paris the French Metropolis by the custome of the place whence that of Choppinus treating of those Customes pag. 316. Parisiensi iâ—â—em municâ—piâ— saith he quod gentilitiâ pariter sulget Nobilitate clarorum virorum usus familiae herciscundae minus est obnoxius invidiae Ubi scilicet non persunarum sed fundorum conditio nobilis plebeiave partes assignat To which he adds a little after Hâ—â—d ideâ— tamen dividundarum haereditatum ratiâ— immutata est Parisiis cum nobiles fundos plebeii nobiliter ignobiles aequojure generosi invitem partiantur To the same purpose our Authour elswhere â—els us that priseo quodem Gâ—llici fori usu plebeius fundus haud ideo pristinam exuebat conditionem quòd à recto ipsius Domino aere comparatus esset Ni ejus nomine comparator in clientelam se unà cum superiore fundo suo ad patronum contulisset which his margin elswhere records thus Anciennement les rotures aâ—quises par le scigneur direct se partageoient returierement si non que le dit acquereur les comprint en l'adveu de son fief le rendant au superieur Thus went it seems the more ancient Custome in those parts But tempora mutantur The case of latter times is altered there as the same Authour gives us to understand in both the last fore cited places At postâ—rioris aevi Jurisprudentia mutatis calculis novam invexit servientis fundi unionem tacitam consolidationem cum altero dominante ac parem adeo utriusque qualitatem praenobilem Ni si illius emptor subinde contestationem interposuisset contrariae voluntatis Thus in the former place In the latter thus Nostrae tamen aetatis moribus diversum obtinuit censuales nempe obnoxios agros solâ per rectum Dominum acquisitione prorsus uniri in unúmque redigi cum praedio dominante nisi protinus emptor contrariae voluntatis testationem interposuisset The effect of both is this that Censual lands by purchase coming unto the direct Lord the Lord of the Fee or Over Lord aâ—e ipso jure Feudal and shall accordingly descend as thereby re-united to the Fee unlesse the buyer at the time of purchase do protest to the contrary Will you please to hear his reasons Unionis nempe vis illa eò producitur ut ignobile praedium militari junctum nobilitetur eque plebeio as soâ—â— vectigalibus obnoxio transeat in feudâ—lis clientelae sortem liberiorem Thus he De moribus Parisior pag. 58. Much what one with that in the other place De Domanio Franciae pag. 41. Quoniam tacita praediorum unione confusa erant jura servitutum census solarii vectigalis Cum rei propriae nulla superforet servitus exâ—ndéque vectigalis sundi qualitas esset immutata Thus he whom see also if you please De Domanio Gallicâ— pag. 168. num 2. Also pag. 284. num 1. To whom add Hotoman De Feudis lib 1. tit 5. parag 2. in fine You see by this how the present case stands in some parts abroad Here at home as it seems by the very Custumal of Kent in two several cases therein specified the descent of gavelkynd-Gavelkynd-land is changeable and the land becomes unpartible first namely when by escheat happening either by Death or Cessavit next when by the tenants voluntary surrender it comes into his Lords hands who holds by Fee of Haubert or by Grand Sergeanty both which Mr. Lambard takes to be Knight-service To which may be added two other cases which occur in an ancient Kentish Eire in the Exchequer ann 29. Edw. 1. where enquiry being made and the question propounded to the Kentish men how many ways gavelkynd-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
matter I conceive of the case I would ask then if our Kentish gavelkynd-Gavelkynd-land be partible quatenus Gavelkynd I expect no other than an affirmative answer If so and admitting withall that such property in Gavelkynd-land owes it self to a custome accompanying land of that nature yet I suppose it shall enjoy that property no longer than the land it self continues to be Gavelkynd which some hold it is not being once returned and come back again into the Lords hands the King especially being Lord that granted it out in Gavelkynd or of whom it formerly held in Gavelkynd because then as cessante causâ sollitur effectus so by reason of the unity of possession the Usu fructus I cannot well English it being consolidated and made one with the property that property of being censual land which Gavelkynd denotes and which cannot be intended of any land holden in Demesne and not in service ceaseth and is quite extinguished there being required to make the land censual a censual Tenant one that holdeth by censual services such as here is none especially in the Kings case when once the land is come home again reduced to its first principles and re-united to what like Fief is opposed to service-land the Lords In-land or Demesne-land as in the case of a common Lord or to the Crown à quo omnia feudamoventur â—riuntur the Fountain whence all Tenures are derived as in the Kings case from whence by the letting it out in Gavelkynd it was formerly severed To this purpose see Petri Gregorii Tholosani Syntag. Jur. univers lib. 6. cap. 5. num 11. But of this also hitherto for I hasten to an end PROPOSITION V. Whether before the Statute of Wills 32. and 34. H. 8. Gavelkynd-land in Kent were deviseable or not IN answer whereof holding with those which resolve it in the negative howbeit for my part not studio partium but veritatis amore I shall oppose to such as hold the contrary what arguments are brought against them and their opinion in a case of Mr. Halls of Kent verbatim as I find them published in print which here follow with their title Reasons and authorities to prove that gavelkind-Gavelkind-lands in Kent are not nor were anciently deviseable by Custome FIrst it is a rule in Law that an Assise of Mortdancester doth not lie of lands which are deviseable by Testament c. and this appears by divers books as namely 4. Edw. 2. Mortdanc 39. 22. Assiz 78. and Fitz. Nat. Brevium 196. 1. But it appears by Bracton fol. 276. b. that an Assize of Mortdancester will lie of Gavelkind lands in Kent and so it appears by divers ancient Records quod vide in Itinere Johannis de Berewicke c. Anno 21. Edw. 1. Copia fol. 1 7 22 24. in Itinere H. de Stanton Anno 6. Edw. 2. Copia fol. 1 8 9 10 13. By which it appears plainly that an Assize of Mortdancester lies of Gavelkind lands in Kent But an Assise of Mortdancester doth not lie of lands within the city of Canterbury because lands are there deviseable by Custome as it appears in dicto Itinere H. de Stanton fol. 3 4 6. And it is evident that in the city of Canterbury which was anciently part of the county of Kent there was a special custome used to devise lands lying within the liberties of the city and to prove their wils in the Court of Burgmote in the same city But there needed no such Custome if all the Gavelkind lands in Kent had been deviseable c. Also the most part of the ancient Wills of Gavelkind lands in Kent before the Statute of Uses did mention Feoffees of the lands devised c. as appears by the Register-books of Wills at Canterbury and at Rochester whereby it doth appear that the Devisors were Cestâ—y que uses and not owners of the land devised and although some wills of land make no mention of Feoffees yet there were Feoffees of the same land as will appear by the deeds of Feoffment thereof and twenty to one do mention Feoffees c. Also Sir John Fineux chief Justice de R. B. Sir Robert Read chief Justice de C. B. and Sir John Butler Justice c. devise their lands in Kent before the Statute of Uses and make mention of Feoffees c. which had there been a Custome to devise no question they had taken of it c. Also many ancient deeds of Feoffment of lands in Kent referr to Wills sc Dedi concessi c. A. B. omnia terras tenementa c. ad opus usum perimplendi ultimam voluntatem meam c. Also there are wills to be found of lands in diverse other Counties of this Realm whereby lands were devised before the Statute of Uses and no mention made of any Feoffees as appears in the Register-books of the Prerogative Court and in diverse other places and yet without doubt they bad Feoffees seised to their uses c. or else they could noâ— there devise the same Also the houses and lands in Cities and Burroughs which were deviseable by Custome were reckoned inter catalla sua but it were strange that all the Socage Lands in Kent which are conceived to be Gavelkind should be reckoned inter catalla c. And in the Register fol. 244. there are fourteen several Writs of Ex gravi querela and none of them make mention of any County c. nor of Gavelkind but secundum consuetudinem Civitatis or secundùm consuetudinem Burgi c. And if Gavelkind Lands be deviseable by Custome c. the Devisee can have no Writ of Ex gravi querela because there is none before whom the Action or writ should be brought c. Also Mr. Lambard in his Perambulation writing of the Customes of Kent maketh no mention of any Custome to devise lands nor the Treatise called Consuetudines Cantiae in the old Mag. Charta fol. 147. which without doubt they would not have omitted if there had been any such Custome c. Also between the Statutes of 27. H. 8. of Uses and the Statutes of 32. of H. 8. of Wills there were very few Wills made of lands as appeareth by the Register-books before mentioned and the most of such Wills as were then made being but few in number do make mention of Feoffees Also the common practice ever since the Statutes of Wills hath been such that if a Will be made void for a third part by a Tenure in Capite of part of the land c. that third part shall descend to the Heir and the Devisee shall not have it and this appears by special Liveries in the Court of Wards proving the same and by diverse witnesses that can prove the same to be so c. And in Sanders case of Maidstone in Anno 9. Jacobi Regis all the lands were devised by Will and after the Will was avoided for a third part by reason of a Tenure in capite of a small
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-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-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
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
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
circumcisionis Domini xx d. But so called I trow when compounded for in money otherwise upon the same ground Malt-peny as the old Customal of the same manour frequently nameth it So called peradventure in relation to some greater rent or service arising and paid out of the same land that this at some other part or season of the year I guesse hereat by an old Customal of Charing manour where indeed I found it so and so Les-gavel quasi Lesle-rent or Lesle-service I take it to be the same that in the Customals and Rentals of some other manours I find written Lesyeld and Lesgeld unlesse it be mistaken for the next Leaf-gavel thus occurring in an old Accompt-roll of the Church of Canterbury Et de xii l. iij. d. ob de annuo redditu assis cum Leafgabulo ad terminum S. Martini which I conceive to be the same with what in a like Record of Hathewolden now Halden manour in Kent is called Lef-silver Et de xviij d. de Lef-silver in Hathewoldum The old Custumal of Tenham manour in Kent calling it Lyefyield thus explains it Tenentes de Waldis non possunt arare terras suas ab equinoctio autumpnali usque festum beati Martini sine licentia Et ideo reddunt annuatim dimidiam marcam ad festum S. Martini sive fuerit Pessona sive non Et vocatur Lyes-yeld Whereby it seems to be a tribute paid by certain Wealdish Tenants for liberty to plow their grounds during a certain season of the year viz. tempore Pessonae which because of some prejudice that might thereby redound to the Lord in his Pawnage was not permitted without his leave Gabulum mellis as the old Rentals of Chistlet manour in Kent seem to term what some ancient Accompt-rolls of Otteford and other manours call Hunigaved both one and t'other signifying Rent-honey Item de Weregavel vj. d. aliquando tamen plus aliquando minus Thus in the Custumal of the Canterbury Cathedrals manour of Leisdowne in the Isle of Shepey It seems to be a rent paid in respect of Wears or Kiddels to catch fish withall pitch'd and plac'd by the Sea-coasts and until Magna Charta forbade it in some rivers too whereof see further in Sir Hen. Spelmans Glossary verbo Kidellus and in Sir Edw. Cokes Institutes part 2. pag. 38. and elswhere In an Accompt-roll of the manour of Reculver in Kent anno 16. Edw. 3. this service in the charge there thus occurrs Idem respondet de 814 dimid ped clausur hayag fac circa manerium ex consuetudine unde de Twygavel 200. I meet with it elswhere also but with explanation no where Taking liberty of conjecture I conceive it to be some double kinde of service by the Twy preposed as elswhere Twysket an imposition upon the Tenants of Aldington manour by Romney mersh for maintaining the Sea-coasts there and other like defences against inundations is termed Duplum as thus Computus de duplo Wallae quod vocatur Twysket So the Accompt-roll of that manour in the sixth year of St. Edmunds Archbishoprick Is termed of our learned Glossarist verb. Berewica by Tributum hordeaceum elswhere viz. verb. Gabella by Redditus hordeaceus You shall finde in the 60th of King Ina's Laws in Mr. Lambards Archaion If it were not Rent-barley I should take it for the Drincelean occurring as in the last chapter of the Leges Presbyterorum Northumbrensium in Sir Hen. Spelmans Councils pag. 502. So also in the 87th of King Cnutes Laws in the Archaion and in this latter place rendred in the old Version in Brampton just as Oryncelan mistaken for Drincelan in the old Glossary at the end of Hen. 1. Laws by Retributio potus If so it seems to be the same with what was afterwards called Scot-ale whereof you may read in Matth. Paris the Charter of the Forest Bracton the Mirroir and elswhere King Hen. 2. in his charter to the citizens of Canterbury acquits them of it Ita quod saith he Vicecomes meus Cantuar. vel aliquis alius Ballivus Scotalam non faciet It 's sometimes called Potura and was a contribution by the men and Tenants towards a Potation i. e. a Drinking or as some yet speak an Ale provided to entertain the Lord or his Bailiffe withall coming to keep Court or the like raised by a proportion or rate more or lesse according to the better or meaner condition In an old Custumal of Southmalling manour in Sussex in that part of it intituled Bortha de feld I read as followeth Item si Dominus Archiepiscopus fecerit Scotall infra boscum quilibet terram tenens dabit ibi pro se uxore sua iij. ob vidua vel Kotarius j. d. In the Extent of the manour of Terring to give you another instance anno 5. Edw. 1. this Scotale service is thus remembred Lewes Memorandum quod praedicti tenentes debent de consuetudine inter eas facere Scotalium de xvj d. ob ita quod de singulis sex denar detur j. d. ob ad potandum Bedello Domini Archiepiscopi super praedictum feodum Bracton saith It is sometimes called Filctale sol 117. b. which our learned Glossarist in voce correcting reads Fildale and is in some sort followed by Sir Edw. Coke Institut part 4. pag. 307. With the Varia lectio before Bracton I should rather read it Gildale and then indeed as it comes neerer the other Scot-ale so with that better answers to our present Bere-gafol Gild Gafol and Scot being as it were Synonyma and univocal Observed to be alwayes paid by the Tenant per avail to the mesne Lord not to the chief and thence called in some old records and deeds Foris-gabulum quasi extra vel praeter gabulum quod Domino capitali debetur just like the French mans Surcens Will you have an example John then the son of Richard at Horsfald by his deed dated anno 1242. gives to Warin of Stablegate a parcel of land to be holden to him and his heirs or to whomsoever he shall give sell or assigne it a clause without which by the account of those elder times land was not alienated from the proper heirs paying to the Prior and Covent of Christ-church Canterbury Lords it seems of the Fee certain annal rent and hens and to the Feossor and his heirs j. d. yearly de forgabulo c. Some other instances of this kind might be added but I must contract passing over Metegavel whereof mention is made in the old Glossary at the end of Hen. 1. Laws and there in Latine rendred Cibi gablum Now a word or two of Gavelet This I must tell you was no Rent or Service but betokeneth a rent or service with-held denied or deteined causing the tenements forfeiture to the Lord whence those words of Fleta reciting the Statute
as it is used besides in composition in each importing Cens i. e. Rent either in money provision or works And being thus far advanced in the dispatch of our positive Proposition what is the true sence of Gavelkynd I must now desire the Reader in the next place to observe and consider with me that as there are divers sorts of land to be found both in this County and elswhere by the nature of their Tenure not Censive or Censual nor of the kind to pay or yeild Gavel that is such Rent or Rent-service whether in money provision or works as ariseth from ignoble base and plebeian Tenures in which onely Gavel is conversant to those of whom such lands are holden those namely holden in Alodio in Frankalmoigne or Mortmaine as called also abroad because yeilding the Lord no profit as being in a dead hand in Knights-service in Frank fee and the like so is there also such as that holden in Socage or Burgage Tenures or the like though free which contrariwise is Censual liable to Rent in some one or more of the kinds premised To distinguish therefore if not generally what land is from what is not of Gafol gilden nature or of the kind to yeild or pay Cens yet specially to put a difference between what alone is properly and anciently called Fee Knight-service land and it under which double head is comprised the generality of our whole Countries lands answering as to that dichotomy of Chivalry and Socage Tenures whereunto all the land in England in the hands of common persons is referred so also to that known distinction of their lands in Normandy from whence as some surmise we received our Gavelkynd whereof more hereafter unto Fief de Haubert and Fief de Roturier that is the Noblemans Fee and the Husbandman or Ploughmans Fee for distinction sake I say of Censual or rented land or Rent-service land from what like Fee properly so called being holden per liberum servitium armorum yeilded no Cens Rent or Service whether in money provision or works the former of the twain was called Gavelkynd that is as Mr. Lambard rightly in the second of his fore-mentioned conjectures of the kind or nature to pay or yeild rent or land holden not properly in Fee but as the Feudists are wont in this case to distinguish contractu censuali as being letten out with or under condition to pay Cens or Rent or with a reservation of Cens or Rent like unto those in the charters of the Conquerour and his son Hen. 1. the one to Battell the other to Reading Abbeys expresly called Terrae censuales and there opposed to Fee witnesse this provision occurring in each charter Terras censuales nec ad feudum donet nec milites nisi in sacra veste Christi faciat nec de possessionibus Ecclesiae quisquam teneat aliquid feudaliter absolutum sed ad censum annuum servitium Abbati monachis debitum See Clement Reyners Apostolatus Benedictinor in Anglia tract 2. pag. 137 154. It is no simple word Gavelkynd but a compound of Gavel and kynd the latter syllable whereof to proceed on to that cometh and is contracted of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a word frequently occurring in the Saxon Sermon set forth and published by Mr. Fox in his Acts and Monuments and again of late by Mr. Lisle as an Appendix to another Saxon piece a Treatise of the old and new Testament in the version or translation of the word they both concur rendring it in our modern English Nature To give an instance or two 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after true nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. it is naturally and the like Iâ— will peradventure be objected that Mr. Lambard in his Perambulation pag. 495. meeting with the word several times in the Saxon will of Byrhtric of Mepham in this often repeated passage there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alwayes translates it after the old Latine version in Textus Roffensis within that kinred and in a marginal note against it calleth it a kynd of gift in tayle But for reply if I may have leave freely to deliver my sence that version is not good for under favour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there importeth not as that Translation would kinred but rather kynd nature sort quality or condition and consequently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there if rightly is thus I take it and not otherwise to be Englished viz in that kind or after that nature or upon the same terms or with the same condition having relation if you mark it to the tie upon the next precedent legacies gifts or devises of other land charged either with alms or with rent in way of alms payable thereout by the Legataries or Devisees for the Devisor or Testator his souls health Had it been otherwise ted books the following passage in a Charter recorded in a Lieger of the often alleaged Cathedral at Canterbury of certain land all which the party had in Southweâ—k given to that Church by Norman le Wautier in the year of Christ 1204 which thus speaketh Et quia praedicta terra de libero catallo proprio perquisito meo fuit non de aliqua hereditate parentum meorum ideo Deâ—minde S. Thomam Martyrem Sanctos Cantuariensis Ecclesiae conventum monachorum ejusdem heredem meum legitimum inscribo hac mea carta in perpetuum constituo To which many more such like might easily be added from the same Promptuarium The Fâ—udists in this case distinguish between Feudum novum antiquum as may be seen in Vulteius de Feudis lib. 1. cap. 10. num 73. In the next place the Reader may please to observe with me that as Britton distinguisheth of a double tenure in Mortmaine the one called Almoigne or Aumone simply the other Frankalmoigne describing the former to be a gift in alms but not free alms because saith he a certain service is reteined or reserved to the Feoffor cap. 66. fol. 164. â— so this in hand is no alienation in Frankalmoigne the Fâ—offers it seems not intending to give the land in that absolute manner but in token of Seigniory to reserve something of service to themselves phrase their gift not in puram eleemosynam or in liberam eleemosynam one of which words viz. either pura or libera is some say others say both essential to the making it a tenure in Frankalmoigne and to the excusing it from service with which the next following words and to Gavelkynd could not have consisted pure alms or Frankalmoigne excluding the return of all but divine services and burthens they phrase it not therefore I say in puram or liberam eleâ—mosynam but onely in perpetuam eleâ—mosynam and to Gavelkynd by the former of these words investing the Hospital with an estate in perpetuity by the latter and the Reddendo following saving and reserving
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
Custome to be of an unknown rise But be it so that Custome carries such a stroke here what kind of Custome is it or how shall we find such a Custome for it as may consist with Gavelkynd-land of novel Tenure whereof before so often Hic laâ—or hoc opus est here 's the point indeed Why in short it is no other than a custome generally spreading it self throughout the whole Countrey in land of that nature What elswhere I mean in other Shires and Counties they properly call by the name of Socage whether free or base we here in Kent are wont to call by the name of Gavelkynd or if you please in Mr. Lambards expression all Socage service here properly so called is clothed with the apparel of Gavelkynd and under it in a large acception is understood all such land within the County as is not knights-Knights-fee or Knights-service land the term serving here as that of Socage elswhere to contradistinguish iâ— from Knight-service land as Fief Roturier or rather â—nheritence Roturier all other being improperly and corruptly called Fief or Fee that is not holden militiae gratiâ the ground of all Fees is used in Normandy to difference that from Fief de Haubert or Noble Fief Now into all land of this kind by a general or universal custome of the whole County hath this property of partition been introduced insomuch as what land was granted out in Gavelkynd by such as before held it in Dâ—mesne or the like as for want of time and usage it had no particular custome introductive of that property of partition so neither did it want the same the generality of the Custome extending it self to all Censual land or land letten out for Cens and sufficing to render it partible as occasion should be offered though but newly dimised To this purpose Mr. Lambard Although saith he iâ— were so that the land were never departed in deed yet if it remain partible in nature it may be departed whensoever occasion shall be ministred Granted out I say and holden in terms for Cens conceiving a necessity of that or the like expression in the Habendâ—m or other part of the grant to make it capable of this and the other properties incident to Gavelkynd not intending here the very numerical word or term Gavelkynd but that or some other of equivalent sence and signification with it for example Reddendo such or such a sum de gablo de censu and the like whereof for illustration sake expect some copies of old grants in the Appendix to this Discourse These indeed such as these were the more usual expressions in elder grants that of Tenendum in Gavelkynd the like being sought of me in vain before H. 2. dayes nor afore-time doth the term occurr in any writing or monument whatsoever save onely in this passage in Spot St. Austins Monk and Chronicler at Canterbury who â—aith that anno 1063. Abbas tradidit terram de Dene in Gavelkende Blakemanno Athelredo â—iliis Brithmâ—â—i But from Hen. 2. dayes downwards it is obvious in many grants of land recorded and extant in the Liegers of Christ-church Canterbury the laâ—e Abbey of St. Austins there and many other of the Kentish religious houses until about the time of that Sâ—atâ—te Quia emptores terrarum which forbidding the letting out of land by any man to be holden of himself and consequently cutting off all new Tenures and the creation thereof stopped the current of all such grants of land in Gavelkynd for the future That such an expression as Tenendum in or ad Gavelkynd or the like was necessary to render the granted land partible after the custome of Gavelkynd without the help of Prescription requisite in partible land elswhere out of Kent may in part appear by a Record of a controversie happening now full 400 years agone between one Burga sometime the wife of Peter de Bending Plaintiffe and the Prior and Covent of Christ-Church Canterbury Deforciant or Defendant touching the moiety of the manor of Well by them granted to her said husband ad feodi firmam challenged by her tanquam francus bancus suus which controversie was debated and decided in Eire and is recorded in the Liegers of that Church from whence I shall present the Reader with a copy of it not unworthy his perusal in the fore-remembred Appendix Scriptura 5. Neverthelesse it will here I think be necessary that we distinguish times for what at first in Kent was only partible because of the Tenure in Gavelkynd I perswade my self was afterwards in tract of time partible and did communicate with Gavelkynd-land in that property by being Socage land though not expressely holden in Gavelkynd it sufficing at length to shew as Mr. Lambard hath it the Custome at large and to say that the land lieth in Kent and that all the lands there be of the nature of Gavelkynd By what means this was wrought or by what degrees our Socage land arrived at this universality of partiblenesse is not so easily discovered That the sundry favours of Gavelkynd custome should iutice many to creep into it and by one and one upon occasion of the intestine troubles that ensued the deprivation of King Richard the second to shroud and cover themselves under the safety and shadow of the priviledges that do wait upon it is an opinion of some whereunto I cannot subscribe as conceiving no Tenures in Gavelkynd to be so late as Rich 2. dayes which this opinion would infer with what consistencie with the Statute of Quia emptores terrarum made so long before and prohibiting the creation of new Tenures I cannot see But to let the manner passe the thing the over-spreading the Countrey in processe of time with this Tenure is very obvious and apparent witnesse an ancient Statute made anno 18. Hen. 6. cap. 2 taking knowledge that There were not at that day within the Shire above xl persons which had lands to the yearly value of xx pounds without the Tenure of Gavelkynde and the greater part of this County or well nigh all was then within this Tenure To proceed ascribing this property of partition in Gavelkynd-land to the custome of the Countrey what shall be said then to the partible land more or lesse abroad in other Counties â— is such Gavelkynd-land and so to be called or not or is it from Gavelkynd that such partition there obteins I conceive not For first our Kentish Gavelkynd Custome considered collectively with respect to all its branches is not to be restrained to this one particular property but as before is intimated consists of many other as singular properties besides and which may as well challenge a share and right in the Customes name as may that of Partition such as is Dower of the Moyety not to forfeit lands for Felony and the like and though in point of Partition it may be like ours in Kent yet in other
Frank Fee then being opposed to Ancient Demesne which is Socage cannot it self be Socage Nor will Bractons distinction of Socage into liberum and villanum applied to that difference in Mr. Lambard of free and base Socage by which the one should consist of money and the other of base services be warranted as himself there observes from the ensuing Inquisition some lands being therein denoted to be of Gavelkynd-nature which neverthelesse do yeild none other but money alone and none there of that nature charged with works besides that of Suit of Court improperly called Works as not coming under the notion either of Manuopera or Carropera to which double head all works of this kind are wont to be referred Hence let none perswade themselves that Gavelkynd-land was not or by its nature is not liable to Works for albeit that 66. of King Ina's Laws in the Archaion seemeth to counter-distinguish Gafâ—l and Wâ—rk and though moreover Gafolland and Werkland occurr in some manours out of Kent as of a distinct and different nature yet both servile and opposed to what there is called terra libera denoting I suppose Free Socage yet most certain it is that both Gablum and Opera do often meet and are found in Gavelkynd-land Witnesse the old Custumal of Monkton manour in Thanet belonging to the Church of Canterbury mentioning the particulars of what servile works the Tenants there stood charged with for the 18 Swolings so many plough-plough-lands I take it holden of the Monks in Gavelkynd Witnesse also this passage in King Johns Charter made to Hubert the Archbishop for the changing gavelkynd-Gavelkynd-land into knights-Knights-Fee at large exemplified by Mr. Lambard Peramb pag. 531. Xenia Averagia alia opera quae fiebant de terris iisdem convertantur in redditum denariorum aequivalentur Witnesse in the third and last place not to multiply instances in a case so cleer an Inquisition found after the death of Isabella de monte alto widow sometime of Orpington recorded in a Lieger of that Cathedral whereof expect a copy in the Appendix Scriptura 10. 'T is true indeed at this day and time out of mind haply from Richard the seconds time such servile works properly called Villein-services have been as they still are intermitted or rather quite ceased insomuch as all our Gavelkynd-land in point of service now differs nothing from Free Socage as it stands described and defined of Bracton being such ubi fit servitium in denariis to use his own words all the Tenants burthen his whole service being onely servitium crumenae pecuniary such as payment of money for rent suit of Court and such like nay in many grants of land in Gavelkynd that I have seen I find no tie at all upon the Tenant no covenant or contract between his Lord and him to require of him any such base services there being ut communiter and regularly a reservation onely of rent in money suit to his Court or the like yet I must tell you as a reason hereof in my judgement that though Gavelkynd in the genuine sence sound land letten for gable cens or rent consisting chiefly in denariis whence in an old Custumal of Eastry manour in Kent I read In eodem manerio mutati sunt octo Cotarii pro Gavelkende Medlefâ—rm tenet unum messuagium tres acras quae solent esse Cotar modo reddit xl d. de gablo and so divers more which haply will be better understood if I add what occurrs in an old Accompt-roll of the Archbishops manours for the year 1230. in Charing Bailives receipt Et de xiij s. iiij d. de fine Cotariorum ut Coteriae suae ponerentur ad redditum yet commonly upon such grants in Gavelkynd the Tenant pareâ—d with such a sum of money to his Lord in gersumam i. e. in consideration of that grant and by way of Fine as may seem equivalent to the base services otherwise imposeable and to have been charged upon that land and upon the Tenant in respect thereof or if not probably as in gavelkynd-Gavelkynd-land by vertue of King Johns fore-mentioned Charter turned into knights-Knights-fee he had his rent inhanced and augmented to an equivalent value of his services to be redeemed the cause in chief of the excuse of Gavelkynd-men from base services of latter times and at this day being I conceive no other than the Tenants buying them out and consequently the change of the same as Littleton hath it of Socage in general into money by the mutual consent of Lord and Tenant whereof expect some examples to be presented in the Appendix Scriptur 11 and 12. In the mean time have here an instance or two taken from some old Accompt-rolls of the Archbishops manours of this and that summe paid received for enfranchising the land from customes and services and changing it into knights-Knights-fee whereof in the last-remembred Accompt-roll and in the receipt of Ceâ—ring now called Charing manour there Et de ij s. ix d. ob de incremento redditus Thomae de Bernfeuld de termino Sancti Johannis ut terra sua de caetero sit libera de consuetudinibus per feodum militis Et de xiiij d. quad de incremento redditus Thomae de Bending ut terra sua sit libera per feodum militis de termino S. Johannis And so some others there as also in Maidstone and other Archiepiscopal manours and such may well be reckoned among lands of that sort which in a copy of the book of Aid cited by Mr Lambard are noted to be holden in Knights-service per novam licentiam Archiepiscopi But to return to our Gavelkynd which if not extensive to Free Socage they may seem to stand in need at this day of some other character to keep them unconfounded than Bracton in the definition and description of the latter doth propose in regard the service of both equally consisteth in money To recapitulate now what hath been delivered concerning partition in Kentish Gavelkynd-land It is as hath been shewed neither from the name nor from the nature of the land alone nor from prescription nor yet from any particular custome that this property there proceedeth but partly from the nature of the land and partly from custome not I say a particular one but a general custome extended throughout the whole County in censual land or land letten for Cens or what is all one with it Gavel or Gafol to say holden in Fâ—ef or Inheritance Roturier as called in Normandy and other parts of France the Antiquity whereof and how beginning in Kent and why more general there than elswhere shall be the argument of our next Discourse PROPOSITION III. The Antiquity of Gavelkynd-custome in point especially of Partition and why more general in Kent than elswhere MAster Lambard inclines in his opinion to conceive this custome brought hither out of Normandy by Odo Earl of Kent and bastard brother to King William the Conquerour and that we
the Saxon tongue and character which I dare not undertake to rectifie Thus for practice As for law besides that power in all men in those times to devise land in general by their wills without any violence deduced and concluded from that 68 of Canutus laws providing how a mans whole estate the Lords Heriot onely excepted shall be disposed of in case he die intestate we have a more expresse law for it afterwards the 76th I mean for such land at least as is there termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. as Mr. Lambard construes it terraomni lite soluta or as it is turned in Jornalensis and the 35th of the Confessours laws de Heretochiis in Mr. Lambard fol. 136. a. terra acquietata comitatus testimonâ—o Let me illustrate it by a passage in a Charter of King Edmund to Aelâ—here his Thane in the year 941. of certain lands and possessions there called Mulanton running thus Prout pater ipsius Aelsheri priorum temporibus nostrorum sub contestamine totius popularis Senatus sua pecunia ab illo ab alio prout tunc temporis mos erat adquâ—sivit In effect it was as I conceive if not the same with Bocland called terratestamentalis not onely because deviseable but also in regard of the publike testimony of the Shire required and used in the passing of it otherwise than by will such land like that mentioned of Mr Selden Tit. of Hon. par 2. cap. 5. pag. 631 and there said to be holden quâ—etè absque omni câ—lumnia or like that passed or conveyed as in Sir Henry Spelmans Councils pag. 319. and 333. as was unquestionâ—bly a mans own as upon the purchase or grant of it confirmed and assured to him in the legal way of those times such haply like those of latter times passed by Fine the conveyance whereof was recorded and inrolled or entred in the Shiâ—e-book in publike Shire moâ—e after proclamation there made for any to come in that could lay challenge or pretend right unâ—o it whence not improbably our manner of recording conveyances sometimes as in Canterbury in the Hundred sometime in the Burgemoâ—e otherwhile in both whereof I am not unfurnished of instances Thus for that kind of land Now for Bocland and how the Law stood there Sir Henry Spelman I confesse is cleer of opinion against all power of aliâ—naâ—ion in the owner and that of necessity it must â—e left to descend to the heir and thence is called terra â—aereditaria grounding upon that 37th of King Alureds laws which he there recites Under favour that Law cleerly makes for the contrary allowing unto the Possessour a power of alienation saving where his hands are tied from it by an expresse provision and prohibition to the contrary from those the Ancestour or who else it came unto him from a caution in my apprehension of the same nature with an exception which as Civilians use to say firmat regulam in non exceptis And as for its name of terra haereditaria and the argument upon it it is easily answered as thus so called it was to distinguish it from Folcland otherwise called Gafolland wherein the Tenant being but as it were a Lessee Usufructuary or Fermour and having no propriety upon his death or other expiration of his term it reverted to the Lord and descended not upon the heir as Bocland did at least ought to do being because his own in propriety hereditary if not alienated by him in his life time as it might be in regard it was as well terra libera as haereditaria and so called which Folcland never was however Sir Henry Spelman in a place so assert likening it to Allodium which indeed was liberum and consequently capable of alienation either by gift or sale to whomsoever the owner pleased a property appropriate to Bocland thence otherwise called especially abroad Allodium whereof more hereafter But further to cleer the point of Boclands being alienable and in the power of the owner to dispose of at pleasure have here a pregnant passage for our present purpose borrowed from a Charter of Archbishop Wâ—fred who died about the yeer 830. of the gift of certain houses to his Successours in the See of Canterbury thus speaking 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is in our modern English If any man shall say that this Mansion is not more in my power or the power of my heirs to use than of the rest of the Society or Covent then let him know that it never was Christ-church land nor any mans Bocland before it was mine and then let him further think and consider by other mens Bocland as well in priviledged places as without whether they may grant away their own land or possessions or give it for or in their lives times as pleaseth them or wherefore mine should be of different kind to those of other men Thus the Charter as I understand it Bocland then I conceive we may conclude alienable by the owner of it both by act or grant in his life time and at his death by will in the times I mean before the Conquest But afterwards that custome of devising it by will ceased as did withall the descent of land generally by equal division amongst all the sons For as the English Laws and Customes in general from that time suffered a daily eclipse and declination by degrees so this in particular saving where they were more tenacious of it than elswhere and in such places whereof London seemeth to be one as by special priviledge were suffered to keep it up languished and was at length supplanted by that other kind of descent which now regularly takes place throughout the most part of the Kingdome Insomuch as where this partible descent cannot to uphold it self justly plead antiquity and ancient custome it quite fails and falls to the ground And to this passe I take it was it come in Glanvill and Bractons dayes who therefore harmoniously deliver this as a requisite and essential property in land of such descent that it be not onely by nature partible as it is by being Socage if we may interpret Bractons si haereditas partibilis sit by Glanvills si fuerit Socagium but withall that by custome and of old it hath actually been parted Now the Kentish men it seems the Commons there I mean like the Londoners more careful in those dayes how to maintain their issue for the present than their houses for the future a contrary respect to theirs who have of late by Act of Parliament rid their lands of this Custome as to that property of Partition were more tenacious tender and retentive of the present Custome and more careful to continue it than generally those of most other Shires were not because as some give the reason the younger be as good Gentlemen as the elder brethren c. an argument proper perchance for the partible land in Wales
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
is turned haereditas Si quis Tainus in haereditate sua terram it should be Ecclesiam habeat c. in another like old version in the book of Rochester called Textus Roffensis is rendred Allodium Si liberalis homo quem Angli Thegen vocant habet in Alodio suo Ecclesiam c. By Allodium also is turned in the same Record Textus Roffensis what occurrs in the Saxon fragment exhibited by Mr. Lambard Perambulat in Mepham pag. 500. under the term of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Et si villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio Alodio c. Allodium it seems thence being properly such land as is fully a mans own Shortly then Feudum Fee or land holden in Fee is no more considered in its first and primary acception to which they must have regard that will hope to judge aright of the ground for the first imposition of the name than what was holden in Fee-hode by contraction Feud or Feod i. e in a stipendiary conditional mercenary mediate way and nature and with the acknowledgement of a superiour Lord and a condition of returning him some service for it upon the withdrawing whereof the land was revertible unto the Lord in which respect as the grant thereof is improperly called a Donation being but Feodalis dimissio i. e. a Demise in Fee so the Deed or Conveyance by which it was demised is as improperly termed a Charter of Donation being no more than a Charter or Deed of Feoffment Such I say is Feudum Allodium is contrarywise what is holden in All-hode in totality in a totall full absolute immediate manner and condition without acknowledgement of any superiour Lord and free from any tie or compact for the returning any service at all for it unto any Thus far and I hope not too far nor impertinently for cleering the etymon of Feudum and Allodium as the argument so the torture of many learned pens amongst whose derivations of one and t'other I humbly crave this of mine such as it is may be admitted for future Indagatours and all others of unforestalled judgements freely to consider of And now to spin on our former thred and to reassume our argument of the Introduction of our Fees or Tenures by the Conquerour which that etymon coming in the way caused me a while to set aside I here professe to concurr with them who upon the question put resolve it in the affirmative whereof our learned Glossarist for one thus Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior Conquestor nuncupatus c. and a little after Deinceps vero resonarunt omnia feodorum gravaminibus Saxonum aevâ— ne auditis quidem no other Tenures or in the Scottish expression Haldings of land being formerly here in use but these two Bocland and Folcland The one saith my Authour a possession by writing the other without That by writing so he adds was a freehold and by charter hereditary with all immunities and for the free and nobler sort That without writing was to hold at the will of the Lord bound to rents and services and was for the rurall people It may be added that the former took name from the lands booking or entring with the limits of it in a Codicil as then called a little book or as we since call it a Charter which if the land were given to a Lay-man was in way of Seizin delivered to the party that was to have the land hence haply that ceremony we retain of delivering a Conveyance as the parties Act and Deed or if to a Monastery laid and left most commonly upon the Altar Ego autem licentiâ consensu illius testimonioque Episcoporum Optimatum suorum omnes terras meas libros terrarum propria manu mea posui super altare Christi in Dorobernia c. as it is in the close of a Memorial of the gift of Monkton and other manours to the Church of Canterbury in the year 961 by Queen Edive or Edith whose picture in thankful remembrance was until of late reserved in that Churches Treasury Hence was such a Charter vulgarly known in those times by the name of a Landboc in the Latine of the times Telligraphum sometime Codicillus and the like Observe yet further terram haereditario jure conscribere liberam proclamare the Latine phrase for creating Bocland was a prerogative royal or a Royalty and out of the power of any Subject whence that passage often occurring in Subjects grants of lands in perpetuity to the forenamed Cathedral and other places viz. and such a one King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. haereditario jure conscripsit as also that liberam omninò proclamavit and such like King Ethelreds priviledge as called confirming to that Cathedral amongst other things their whole possessions is hence by one of the Subscribents called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But notwithstanding this Enfranchisement the land was very seldome alienated by the possessour in Frankalmoigne without what the Law of Mortmaine afterward required a concurrent or at least a subsequent confirmation from the King whereof examples are obvious in the List of that Churches lands and benefactours published in the Antiquities of Canterbury pag. 210. as also of the concurrence of the Magnates or Nobles in such Bocland-grants principally in that of Mallings You shall have the very words because remaâ—kable Anno Domini DCCCxxxviij Ecgbertus Athelwlfus Rex filius ejus dederunt Ecclesiae Christi in Dorobernia Mallings in Suthsexan quod viz. manerium prius eidem Ecclesiae dedit Baldredus Rex sed quia mark this non fuit de consensu magnatum regni donum id non potuit valere Et ideo c. Bocland thus flowing originally from the Crown upon all forfeictures and particularly that of the estate of the possessour for deserting the warrs as if there were no mean between the King and him the King alone was to take the forfeict But of Bocland more anon Some other kinds of land 't is true there were in those dayes but all I take it reducible to the precedent Diehotomy such as 1 Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as it is in the truce or agreement between Alfred and Guthrun KK in the Archaion cap. 2. 2 Neatland 3 Inland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so runs the first chapter of King Edgars Laws there 4 Utland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we have it in the will of Byrhtric in our Kentish Perambulation pag. 495. Of which four the two former I conceive were but the same with Folcland both one and t'other importing land letten or demised as Folâ—land was to rural people more Emphitâ—utico for profit the one from Gable or Gafol i. â— Cens or Rent being termed Gafolland the other called Neatland either from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to improve fructifie whence 〈◊〉
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
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
part of the land and the third part of all the residue of the lands being Gavelkind did escheat to the King for want of Heir which land is ever since enjoyed under the Kings title by escheat And John Wall upon a trial recovered against White the Devisee Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome and so it was agreed per curiam Pasch 37. El. in C. B. in Halton and Starthops case upon evidence to a Jury of Kent it was then said that it had been so resolved before and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome that the Land is deviseable c. And he that shall conclude upon that place of Fitz Nat. Brev. 198. l. that all Gavelkind Land is deviseable c. may as well conclude that all Lands in every City and Burrough in England is deviseable which is not so as appeareth by Mr. Littleton who saith that in some Burroughs by custome a man may devise his Lands c. And if Gavelkind Lands were deviseable by custome c. Then a man may devise them by word without writing as it is agreed in 34. H. 8. Dyer 53. for a man may devise his Goods and Chattels by a Will Nuncupative so may he likewise devise his Lands deviseable by custome because they were esteemed but tanquam catalla c. and it would be a mischievous thing if all the Gavelkind in Kent should be deviseable by word onely To these arguments and objections against the custome certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof reducible to three heads which to avoid all just suspicion of partiality and prejudice wherewith some zealous advocates and contenders for the custome have been and may again be ready to asperse me I shall here subjoyn together with such answers and arguments by way of reply as I have received from the learned Counsel of the other side in further and fuller refutation of theirs who endeavour to uphold the custome The learned Counsels arguments in behalf of the Custome FIrst they deny the old book of 4. Edw. 2. Fitzh Mortdancester 39. â—o be Lâ—w. But an Assise of Mortdancester lies of land deviseable if it be true that his Ancestour died seized unlesse it appears that the Defendaut claims by some other title But if the Defendant plead that the land is by custome deviseable and was devised unto him it is a good barr of the action Secondly They rely much upon the book of Fitzherb Natura Brevium fol. 198. which sayes that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough or in Gavelkynd which lands are deviseable by will time out of mind c. whence they inferr that all Gavelkynd-lands are deviseable by custome Thirdly They cite the Treatise called Consuetudines Cantiae in the book called old Magna Charta and Lambards Perambulation of Kent fol. 198. that lands in Gavelkynd may be given or sold without the Lords licence and they interpret the word given to be by will and the word grant to be by deed The Reply to the fore-going Arguments by such as stand in opposition to the Custome AS to the first Objection against the Argument taken from the Assise of Mortdancester they reply thus First they maintain that the Custome alone without an actual Devise is pleadable in abatement to an Assise of Mortdancester as well as the Custome with an actual Devise is pleadable in barr for which there is not only that book of 4. Edw. 2. but also Bracton lib. 1. fol. 272. Ubi non jacet Assisa mortis antecessoris among his pleas in abatement of the Writ having before treated of pleas in barr to it Cadit Assisa sayes he propter consuetudinem loci ut in Civitatibus Burgis c. and 22. Assis pl. 78. where upon the like plea the Writ was abated and Fitzherb Nat. Brev. fol. 196. I. whose authority they think strange to be denied in a matter of Law wherein he was a Judge and yet so strongly relled on in a matter of fact and custome in a place whereto he was a stranger and so was it practised and allowed in Itin. Johan de Stanton 6. Edw. 2. And the reason given by the book why such a custome is pleadable in abatement to this Writ is because the suggestion of the Writ may be true that the Ancestour died seised c. and yet the heir have no title where the lands are deviseable And it is the property of this Writ that the dying seised must be traversed and though the Tenant plead the Feoffment of the Ancestour or other matter in barr that is not matter of Estoppell to the heir as a Fine Recovery c yet must he traverse the dying seised and the Jury shall be summoned and charged to inquire if the Ancestour die quo obiit seisitus fuit c. and so are the books of 9. Assis pl. 22. 27. Hen. 8. 12. Brooke Mortdancestor 1. Old Nat. Brev. fol. 117. and diverse others Nor is there any opinion to be found in any book of Law against that book of Fitzherb Mortdancestor 39. until the 15th of King Charles Launder and Brookes case Crooke lib. 1. fol. 405. obiter upon the trial of this custome 2. Admit that at this day the Law is held to be otherwise yet it appears by all the authorities aforesaid that in those times the Law was taken to be that the Mortdancestor did not lie where there was such a custome but it was a good plea in abatement of the writ And yet Assises of Mortdancestor were then frequently brought and maintained of lands in Kent as appears by Bracton and the books abovesaid 3. Whether the custome alone be pleadable in abatement or the custome with an actual devise be to be pleaded in barr they say it cannot be shewn if it can they challenge them to do it who would maintain the custome that it was ever pleaded one way or other either in abatement or in barr to any one of all that multitude of Assises of Mortdancestor brought at large in that County when in so small a City and County as Canterbury where indeed there is such a custom they shew it often pleaded to writs of Mortdancestor brought there before Roger de Stanton and other Justices in Eyre Secondly To the book of Fitzherb Nat. Brev. fol. 198. upon the writ of Ex gravi querela from whence the ground of this question sprung they answer that the sence and meaning of that book no lesse than the Grammar of it duly observed is no more then that the writ of Ex gravi querela lies there where lands in any City or Town or in Gavelkynd are deviseable by custome Not that all lands in Cities and Burroughs and in Gavelkynd are
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
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
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-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