is said that Faeminae non participabunt cum Masculis The Females shall not diuide with the Males whiche is to be vnderstoode of such as be in equall degrée of kinred as Brother and Sisters c. For if a man haue issue thrée Sonnes the Eldest haue issue a daughter dye in the lyfe of his Father and the Father dyeth In this case it is holden that the daughter shall ioyne with the two other Brethren her Vncles for that she is not in equall degrée with them as her Father was whose heire she neuerthelesse must be of necessitie And nowe thus muche being spoken touching the name tenure nature generalitie necessitie reason and order of Gauelkinde it is woorthie the labour to shew of what qualitie the Rents Remainders Conditions Vouchers Actions and such other things of the which some be issuing out of these landes some be annexed vnto them and some be raised by reason of them shal be In whiche behalfe it may generally be said that some of them shal ensue the nature of the Land and some shal kéepe the same course that common Lawe hathe appointed But in particular it is to be vnderstoode that if a Rent be graunted in Fée out of Gauelkinde land it shal descend to all the Males as the land it self shall do And Ald. and Chart. in 7. E. 3. were of opinion that albeit a tenancie be of Gauelkinde nature yet the rent seruice by whiche that tenancie is holden might well be descendable at the common Lawe The like shal be of a Remainder of Gauelkinde land for if it be tayled to the Heires Males they altogether shall inherite it as Fitzherb Norwiche two Iustices thought 26. H. 8. 8. But that is to be vnderstoode of a discent only for if landes of Gauelkind nature be leassed for life the Remainder to the righte Heires of I. at Stile Which hath issue foure Sonnes dieth after the Leassée for life dieth nowe the Eldest Sonne onely of I. at Stile shall haue this land for he is right Heire and that is a good name of purchase 37. H. 8. Done. 42. en Maister Brook But if the lands had béen giuen to I. at Stile for life the remainder to his next Heire Male this had béen an estate taile in I. S. himselfe and then the Land as I take it should haue discended to all his Sonnes in so muche as in that case the wordes next Heire Male be not a name of purchase Howbeit it was greatly doubted 3. 4. Phil. Mariae as Iustice Dalison reporteth if a remainder be deuised by Testament Proximo haeredi masculo whether in that case the Eldest Brother only shall haue it in so muche as in the vnderstanding of the Lawe whiche is a Iudge ouer all Customes he is the next Heire Male and therefore inquire of it As touching Vouchers it appeareth 11. E. 3. that all the Heires in Gauelkind shal be vouched for the warrantie of their auncestour and not the eldest only But the opinion of Maister Litleton and of the Iustices 22. E. 4. is clearely that the Eldest Sonne only shal be rebutted or barred by the warrantie of the auncestour To be short the Eldest Sonne only shall entrée for the breach of a condition but the rest of the Brethren shal be ioyned with him in suing a writte of Attaint to refourme a false verdit or errour to reuerse an erronious iudgement And they all shal be charged for the debte of their auncestour if so be that they all haue Assetz in their handes But if the eldest only haue Assetz remaining and the residue haue aliened their partes then he only shal be charged after the minde of the Book 11. E. 3. Det. 7. And this also for this part at this time shal suffise Now a word or twain touching the trial of right in this Gauelkind land then forward to the rest of my purpose There be at the cōmō law two sorts of trial in a writ of Right by Battaile and by the Graund Assise of the which two this Custome excludeth the one altereth the other For Battail it admitteth not at al the Graund assise it receaueth not by the election of 4. Knights but of 4. Tenants in Gauelkind as it may be read in the auncient treatise of the Customes of this Countrie But whē I speake of the treatise of the Customes you must know I mean not the which was lately imprinted but an other with much more faith diligēce long since exemplified a Copie wherof you shal finde at the end of this Booke For not only in this part the wordes Ne soient prises per battail be cleane omitted in the imprinted Booke but in sundrie other places also the wordes be mangled the sentences be curtailed and the meaning is obscured as by conferrence of the variations it may to any skilfull reader moste easily appeare But all that I will referre to the sight and iudgement of suche as will searche and examine it and retourning to my purpose shewe you what belongeth to the Lorde of this Gauelkinde land by reason of this Custome And for bicause the Prince is chiefe Lorde of all the Realme as of whome all landes within the same be either mediatly or immediatly holden let vs first sée what right by reason of this custome belongeth vnto him If Tenant in Fée simple of Landes in Gauelkinde commit fellonie and suffer the iudgement of death therfore the Prince shall haue all his Chattels for a forfaiture But as touching the Land he shall neither haue the Eschete of it though it be immediatly holden of him self nor the Day Yeare and Wast if it be holden of any other For in that case the Heire notwithstanding the offence of his auncestour shall enter immediatly enioye the landes after the same Customes and seruices by whiche they were before holden in assurance whereof it is commonly saide The Father to the Boughe The Sonne to the Ploughe But this rule holdeth in case of Felonie and of murder only and in case not of treason at all And it holdeth also in case where the offendour is iustified by order of Law and not where he withdraweth himselfe after the faulte committed and will not abide his lawfull triall For if suche a one absent himselfe after proclamation made for him in the Countie and be outlawed or otherwise if he take Sanctuarie and doe abiure the Realme then shall his Heire reape no benefite by this Custome but the Prince or the Lorde shall take their forfaiture in suche degrée as if the Landes were at the common lawe Whiche thing is apparant both by the Booke 8. E. 2. abridged by Maister Fitzherbert in his title of prescription 50. And by 22. E. 3. fol. Where it is saide that this Custome shall not be construed by equitie but by a straight and literal interpretation And also by the plaine rehersal of the saide treatise of
in setting vp of sumptuous housinge so he spared no coste in garnishing Greenewiche til he had made it a pleasant perfect and Princely Palaice Marie his eldest daughter and after Quéene of the realme was borne in this house Queene Elizabeth his other daughter our most gratious gladsom Gouernour was likewise borne in this house And his deare sonne King Edward a myracle of Princely towardnesse ended his lyfe in the same house One accident more touching this house and then an ende It hapened in the reigne of Queene Marie that the Master of a Ship passing by whilest the court lay there and meaning as the manner aad dutie is with saile and shot to honour the Princes presence vnaduisedly gaue fyre to a peice charged with a pellet in sted of a tampion the which lighting on the Palaice wallranne through one of the priuie lodginges and did no further harme ¶ Blackheathe ADioyninge to Greenewiche lyethe the plaine called of the colour of the soyle Blackheathe the which besides the burthen of the Danishe Camps whereof we spake euen now hath borne thrée seueral rebellious assemblies One in the time of Kinge Richard the second moued as it shal appeare anon in Dartford by Iack Straw whom William Walworth then Mayor of London slowe with his Dagger in Smithfielde in memorie whereof the Citie had geuen them for increase of honour a Dagger to be borne in their shield of armes Iack Cade that counterfeit Mortimer and his fellowes were leaders of the second who passing from hence to London did to death the Lord Say and others in the time of King Henrie the Sixt. These two besides other harmes that vsually accompanie the mutinic and vprore of the common and rascal sort defaced fouly the Records and monuments both of the law and Armourie The parts of Rolles remayning yet halfe brent doo witnesse the one And the Heraldes vnskill comming through the want of their olde Bookes is sufficient testimonie of the other The third insurrection was assembled by Michael Ioseph the black Smith and the Lorde Audley vnder the reigne of Kinge Henrie the Seuenth at whiche time they and their complices receaued their iust deserte the common number of them being slaine and discomfited and the leaders themselues taken drawne and hanged Of this last there remaineth yet to be séene vpon the Heathe the places of the Smithes Tente called commonly his forge And of all thrée the graue hilles of suche as were buried after the ouerthrowe These hillockes in the West Countrie where is no smal store of the like are called Barowes of the olde Englishe word BurgHer whiche signifieth Sepulchres or places of burying which word being a spring of that olde stocke we doe yet reteine aliue The first and last of these commotions were stirred of a griefe that the common people conceaued for the demaund of two subsidies of whiche the one was vnreasonable bycause it was taxed vpon the Polls and exempted none were he neuer so poore The other was vnseasonable for that it was exacted when the heades of the common people were full of Parkin Warber The third and midlemoste grewe vpon a grudge that the people tooke for yeelding vp the Duchie of Angâ—ow and Maynie to the King of Sicil The comming in of whose daughter after that the King would néedes haue her to wife notwithstanding his precontract made with the Earle of Armenac was not so ioyfully embraced by the Citizens of London vpon Blackheathe wearing their red Hoodes Badges and blewe gownes as in sequele the Marriage and whole gouernment it self was knowne to be detested of the countrie Commons by bearing in the same place Harnesse Bowes Billes and other Weapon But bicause I cannot without paine and pitie enter into the consideration of these times and matters I will discourse no farther thereof but crosse ouer the next way to Lesnes and prosequute the rest of the bounds of this Bishopricke Lesnes mistaken as I thinke for LesÆ¿es Leswes whiche signifiethe Pastures I Could easily haue beléeued that the name Lesnes had béen deriued out of the Frenche and that it had béen first imposed at the foundation of the Abbay saying that I finde the place registred in the Booke of Domesday by the very same and none other calling And therfore I am the rather led to thinke that the name is Saxon and there miswritten as many other be by reason that the Normans were the penners of that booke Lesnes for Leswes the word whiche in the Saxon tongue signifieth Pastures and is not as yet vtterly forgotten forasmuche as till this day Pastures be called Lesewes in many places This is my fantasie touching the name wherein if I fayle it forceth not greatly since the matter is no more weightie Concerning the Hystorie of the place only I finde that Richard Lucy a priuie Counselour of the State and chiefe Iustice of the Realme in the time of King Henrie the second founded an Abbay there the temporalties wherof amounted as I finde to seuen poundes sixe Shillings and eight pence But as for the extent of the whole yearely value I haue not learned it Earethe in some olde euidences Eard deriued as I gesse of Aerre Hyðe that is the olde Hauen FOr plaine example that oure Elders before the conquest had their trialles for title of land and other controuersies in each shire before a Iudge then called Alderman or Shyreman of whom there is very frequent mention in the Lawes of our auncestours the Saxons the whiche some yeares since were collected and published in one volume and for assured proofe also that in those dayes they vsed to procéede in suche causes by the oathes of many persons testifying their opinion of his credit that was the first swearer or partie after the manner of our daily experience as in the oath yet in vre and called commonly Wager of Lawe is to be séene I haue made choice of one Hystorie conteining briefly the narration of a thing done at this place by Dunstanc the Archbishop of Canterbury almost a hundreth yeares before the comming of King William the Conquerour A rich man saith the text of Rochester being owner of Cray Earithe Ainesford and Woldham and hauing none issue of his body deuised the same lands by his last wil made in the presence of Dunstane and others to a kinswoman of his owne for life the Remainder of the one halfe thereof after her death to Christes Church at Canterbury and of the other halfe to Saint Androwes of Rochester for euer he died and his wife toke one Leofsun to husband who ouerliuing her reteined the Land as his owne notwithstanding that by the fourme of the deuise his interest was determined by the deathe of his wife Herevpon complaint came to one Wulsie for that time the Scyreman or Iudge of the Countie as the same booke interpreteth it before whome bothe Dunstane the Archebishop the parties them selues sundrie other Bishops and a great multitude of the Lay people
not to pursue ouer fiercely thine enemie that hath already tourned his back towardes thée least thou compell him to make vertue of that necessitie and he turning his face againe put thee in d unger to be ouercome thy selfe which before haddest in thine owne hande assuraunce to ouerthrowe him In which behalfe it was well sayde of one Hosti fugienti pons aureus faciendus If thine enemie will flye make him a bridge of Golde Neuerthelesse for as much as this aduice procéeded not from Eadric of any care that he had to preserue King Edmonds power out of perill but rather of feare least the whole army of Canutus should be ouerrunne and destroyed he is iustly taxed for this and other his treasons by our auncient historians who also make report of the worthy rewarde that in the ende he receiued for all his trecherie For this was hee as William Malmsb writeth though some others ascribe it to his sonne that afterwardes when these two Kings had by composition diuided the Realme betwene them most villanously murthered King Edmonde at Oxford and was therfore done to death by King Canutus who in that one act shewed singular argumeÌ„ts both of rare iustice and of a right noble harte Of iustice for that he would not winke at the faulte of him by whose meanes hee obteyned the Monarchie of the whole Realme of great Nobilitie of minde in that he plainly declared himselfe to estéeme more of his owne honour then of another mans Crowne and Scepter to haue digested quietly that impatiencie of a partener in kingdome which great Alexander thought as intollerable as two sunnes in the world at once and which Romulus could in no wise brooke since he woulde not suffer one kingdome to content him and Remus whom one belly had conteyned before There was sometime at Eilefford a house of Carmelite Friers of the time of the foundation or name of the founder whereof I haue not yet learned any thing Mallinge in Saxon Mealing of Mealuing that is the Lowe place flourishing with meale or Corne for so it is euery where accoÌ„pted THis Towne the name whereof hauing his termination in ing betokeneth plainely that it is situate along the water euen as Yalding Berming Halling and others thereby was first giuen to Burhricus the Bishop of Rochester by King Edmund the Brother of Athelstane vnder the name of thrée Plough landes in Mealinges About one hundreth and fiftie yeares after whiche time Gundulphus a successour in that See as you haue read before hauing amplified the buildings and multiplied that number of the Monkes in his owne Citie raised an Abbay of women here also which being dedicate to the name of the Blessed Virgin during all his life he gouerned himself and lying at the point of death he commended to the charge of one Auice a chosen woman to whome notwithstanding he would not deliuer the Pastorall staffe before she had promised Canonicall Obedience fidelitie and subiection to the Sée of Rochester and protested by othe that there should neither Abbasse nor Nonne be from thenceforthe receaued into the house without the consent and priuitie of him and his successours Now whether this Rus propinquum and politique prouision were made of a blinde zeale that the man had to aduaunce superstition or of a vain glorie to increase authoritie in his succession or els of a foresight that the Monkes whiche were for the moste part called Monachi of Sole liuing by the same rule that Montes haue their name of remouing might haue a conuenient place to resort vnto and where they might Caute at the least quenche the heates kindled of their good cheare and idlenesse God knoweth and I wil not iudge But well I wote that this was a very common practise in Papistrie for as Saint Augustines had Sepulchres Saint Albans Sopewell Shene Sion the Knightes of the Rodes the Nonnes of Clerkenwel all adioyning or subiect to suche obedience so Sempringham and some other of that sort had both Male and Female within one house and wall togeather the world being in the meane while borne in hand that they were no men but Images as Phryne said sometime of Xenocrates This house was valued in the Recordes at two hundreth and eightéene pounds of yerely reuenewe Tunbridge called of Mat. Par. Thâ—â—ebrugge corruptly for tonebrycge that is the Bridge ouer Tone but if it be truly written tunbrycge theÌ„ it signifieth the towne of Bridges as in deed it hath many ALthough I find no mention of Tunbridge in that copie of Domesdaye booke whiche I haue séene concerning the description of this Shyre yet read I in history that there was a castle at Tunbridge sone after the conqueste if not euen at the same time when that booke was compiled For omitting that which Hector Boetius writeth concerning a battell at Tunbridge wherin the Conquerour as he saith should preuaile against Harold bicause it is euidently false and vntrue vnlesse he mean it of the continuance of the chase after the fight euen to Tunbridge I haue read that at suche time as Odo ioyning with others of the Nobilitie made defection from William Rufus to Robert his elder brother the King besieged at Tunbridge one Gilbert then kéeper of the Castle and compelled him to yéelde it Happely this Odo being the Kings Vncle and of great authoritie within the Shyre as we haue before shewed had erected this Castle giuen the charge to Gilbert but howsoeuer that were certaine it is that the Castle was long time holdeÌ„ of the Archbishops of Canterbury and continued many yeares togeather in the possession of the Earles of Clare afterwards called of Gloucester For in the dayes of King Henrie the second Thomas the Archbishop required homage of Roger then Earle of Gloucester for his Castle of Tunbridge who knowing the King to be halfe angrie with the Archebishop and wholly on his owne side shaped him a short answere affirming stoutly that it was none of his but the Kings owne as a Lay Fée Falcasius a hyred Souldiour that was enterteined by King Iohn during the warres with his Nobilitie toke by force this Castle from the Earle of Gloucester and kept it for a season to the Kings behoofe King Henrie the third also after the death of Gilbert the Earle of Gloucester scised the Wardship of his Heire and committed the custody of this Castle to Hubert of Burghe But Richard the Archebishop surnamed the great being offended therat came to the King in great haste and made his claime by reason that the Earle Gilbert died in his homage the King gaue answer that the whole Earledome was holden of him that hee might lawfully committe the custodie of the Landes to whome soeuer it liked himselfe Hereat the Bishop waxed warme and tolde the King plainly that since he could not haue right within the Realme he would not spare to séeke it abrode forthwith hasted him to the holy Father at Rome where he
seuenth booke and third chapter Bracton that liued in the time of King Henrie the third in his seconde booke De acquirendo rerum dominio And Bretton that wrate vnder King Edward the first and by his commaundement haue all expresse mention of landes partible amongst the males by vsage of the place and some of them recite the very name of Gauelkind it selfe But most plainely of all an auncient treatise receiued by tradition from the hands of our elders wherof I my self haue one exemplar written out as I suppose in the time of King Edwarde the firste agréeing with the dayly practise of these customes proueth the continuance of them to stande with good lawe and liking And therefore forbearing as néedlesse further testimonie in that behalfe I will descende to the disclosing of the customes them selues not numbring them by order as they lye in that treatise but drawing them foorth as they shall concerne eyther the lande it selfe or the persons that I will orderly speake of that is to say particularly the Lorde and the Tenant The husband and the wife The child and the gardien and so after addition of a fewe other things incident to this purpose I will drawe to an end As touching the land it self in which these customes haue place it is to be vnderstanded that all the landes within this Shyre which be of ancient Socage tenure be also of the nature of Gauelkind For as for the lands holden by auncient tenure of Knights seruice they be at the common lawe are not departible after the order of this custome except certeine which being holden of olde time by Knightes seruice of the Archebishop of Canterbury are neuerthelesse departible as it may appeare by an opinion of the Iudges in the Kings benche .26 H. 8. fol. 4. And that grewe by reason of a graunt made by King Iohn to Hubert the Archebishop the tenor wherof being exemplified out of an auncient roll remayning in the handes of the Reuerende father Mathewe the Archebishop nowe liuing hereafter followeth Ioannes dei gratia Rex Angliae Dominus Hiberniae Dux Normaniae Aquitaniae comes Andegauen Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Iusticiarijs Vicecomitibus Praepositis ministris omnibus Balliuis fidelibus suis Salutem Sciatis nos concessisse praesenti charta nostra confirmasse venerabili patri nostro ac Chro. Huberto Cantuar. Archiepiscopo successoribus suis in perpetuum quòd liceat eis terras quas homines de feodo Ecclesiae Cantua tenent in Gauelkind conuertere in feoda militū Et quod idem Episcop successores sui eandē in ōnibus potestatē libertatē habeant in perpetuū in homines illos qui terras easdem ita in feodo militum conuersas tenebunt in haeredes eorum quā ipse Archiepiscopus habet successores sui post eum habebunt in alios milites de feodo Ecclesiae Cantuar. in haeredes Et homines illi haeredes eorum eandem omnem libertaetem habeant in perpetuum quam alij milites de feodo Ecclesiae Cantuar. haeredes eorum habent Ita tamen quod nihilominus consuetus redditus denariorum reddatur integre de terris suis sicut prius xenia aueragia alia opera quae fiebāt de terris ijsdem conuertantur in redditum denariorum aequiualentem Et redditus ille reddatur sicut alius redditus denariorum Quare volumus firmiter praecipimus quod quicquid praedictus Archiepiscopus successores sui post eum de terris illis in feodo militum secundum praescriptam formam conuertendis fecerint ratum in perpetuum stabile permaneat Et prohibemus ne quis contrafactum ipsius Archiepiscopi vel successorum suorum in hac parte venire praesumat Teste E. Eliense S. Bathon Episcopis G. filio Petri comite Essex Willmo Marescallo comite de Penbroc Roberto de Harocort Garino filio Geraldi Petro de Stoke Ric. de Reuerus Roberto de Tateshal Datum per manum S. Archid. Willielmi apud Rupem auriual 4. die Maij Anno regni nostri tertio But nowe for as muche as it is disputable whether this Chartre of the King be of sufficient vertue to chaunge the nature of the Gauelkynd lande or no and for that the certaintie of the landes so conuerted into Knight fee dothe not any where that I haue séene appeare saue onely that in the booke of Aide leuied in this Shire Anno. 20. E. 3. it is foure or fiue times noted that certeine landes there be holden in Knights seruice Per nouam licentiam Archiepiscopi I will leaue this and procéede to proue that all the landes of auncient tenure in Knights seruice be subiect to the ordinarie course of discent at the common lawe And that may I as me thinketh sufficiently doe both by the expresse wordes of a note 9. H. 3. in the title of Praescription 63. in Fitzherbert by the resolution of the same Fitzherbert and Norwiche Iustices 26. H. 8. 5. And by plaine recitall in the acte of Parleament made 31. H. 8. Ca. 3. by whiche statute the possessions of certeine Gentlemen there named were deliuered from this customarie discent and incorporated to the common lawe For amongst other things in that acte it is sayde That from thencefoorth such their lands shal be changed from the said custome and shall descend as lands at the common lawe and as other lands being in the said coūtie of Kent which neuer were holden by seruice of Socage but always haue bene holden by Knightes seruice doe descend By whiche wordes it is very euident that the makers of that estatute vnderstoode all landes holden by Knightes seruice to be of their proper nature descendable after the common lawe and that Socage tenure was the only subiect in whiche this our custome of Gauelkynd discent preuailed and helde place But when I thus speake of Socage and Knights fee I must alwayes be vnderstanded to meane of a tenure long since and of auncient time continued and not now newly or lately created for so it may fall out otherwise then is already reported As for example If land aunciently holden by Knights seruice come to the Princes hande who afterwarde giueth the same out againe to a common person to be holden of his Manor of Eastgrenewiche in Socage I suppose that this land notwithstanding the alteratiō of the tenure remaineth descendable to the eldest sonne only as it was before As also in like sorte if landes of auncient Socage seruice come to the crowne and be deliuered out againe to be holden eyther of the Prince in Capite or by Knightes seruice of any Manor I thinke it ought to descende according to the custome notwithstanding that the tenure be altered And if this be true in the graunt of the King him selfe then much lesse sauing the reuerēce due to king Iohns Chartre may the Archebishop by a newe creation of tenure make
to his tenants any alteration of this olde custome and manner For as the pleading is Quod terrae praedictae sunt de tenura natura de Gauelkind euen so the trueth is that the present tenure onely guideth not the discent but that the tenure and the nature together do gouerne it And therefore as on the one side the custome can not attache or take holde of that which was not before in nature subiect to the custome that is to say accustomably departed So on the other side the practise of the custome long time cōtinued may not be interrupted by a bare alteration of the tenure And this is not my fantasie but the resolution of all the Iustices as Iudge Dalison him selfe hath left reported 4. 5. Philippi Mariae And also of the court 26. H. 8. 5. where it was affirmed that if a man being seised of Gauelkind lande holden in Socage make a gift in tayle create a tenure in Knights seruice that yet this land must descend after the custome as it did before the chaunge of the tenure Moreouer as the chaunge of the tenure can not preuaile against this custome So neither the continuance of a contrary vsage may alter this prescription For it is holden 16. E. 2. Praescription 52. in Fitzherbert that albeit the eldest sonne onely hath and that for manye discentes together entered into Gauelkynde lande and occupyed it without any contradiction of the younger brothers that yet the lande remayneth partible betwéene them when so euer they will put to theyr claime Againste whiche assertion that whiche is sayde 10. H. 3. in the title of Praescription 64. namely of the issue taken thus Si terra illa fuit partita nec ne is not greatly forceable For althoughe it be so that the lande were neuer departed in déede yet if it remayne partible in nature it may be departed when so euer occasion shall be ministred And therefore euen in the forme of pleading vsed at this day Quod terra illa a toto tempore c. partibilis fuit partita it is plainly taken that the worde partibilis onely is of substaunce and that the worde partita is but a word of forme and not materiall or trauersable at all Yea so inseparable is this custome from the lande in whiche it obteyneth that a contrarie discent continued in the case of the Crowne it selfe can not hinder but that after such time as the lande shall resorte agayne to a common person the former inueterate custome shall gouerne it As for the purpose Landes of Gauelkynde nature come to the Quéenes handes by purchase or by eschete as holden of her Manor of A. Nowe after her deathe all her sonnes shall inherite and diuide them But if they come to her by forfayture in Treason or by gifte in Parleament so that her grace is seised of them in Iure Coronae then her eldest sonne onely whiche shall be King after her shall inioye them In whiche case althoughe those landes whiche the eldest sonne being King did possesse doe come to his eldest sonne after him being King also and so from one to another by sundry discents Yet the opinion of Syr Anthonie Browne was 7. Elizab. that if at any time after the same landes be graunted to a common person they shall reuolte to their former nature of Gauelkynde and be partible amongst his heyres males notwithstanding that they haue runne a contrarie course in diuers the discentes of the Kings before But muche lesse maye the vnitie of possession in the Lorde frustrate the custome of Gauelkynde discent as it may appeare 14. H. 4. in the long Recordare Only therefore these two cases I doubt of concerning this point and therevpon iudge them méete to be inquired of That is to say first if a tenancie in Gauelkynd eschete to the Lord by reason of a Ceasser as hereafter it shall appeare that it may or if it be graunted vnto the Lord by the tenant without any reseruation which Lord holdeth ouer by fee of Haubert or by Serieancie both which I take to be Knights seruice whether now this tenancy be partible amongst the heires males of the Lord or no. For the auncient treatise of the Kentishe Customes so determineth but I wote not whether experience so alloweth The other dout is this if it be so that any whole towne or village in Kent hath not at any time that can be shewed bene acquainted with the exercise of Gauelkynde discent whether yet the custome of Gauelkinde shal haue place there or no. Towarde the resolution of which later ambiguitie it shal tende somwhat to shew how farre this custome extendeth it self within this our countrey It is commonly taken therefore that the custome of Gauelkind is generall and spreadeth it selfe throughout the whole Shyre into all landes subiect by auncient tenure vnto the same such places only excepted where it is altered by acte of Parleament And therfore 5. E. 4. 18. and. 14. H. 4. 8. it is sayd that the custome of Gauelkind is as it were a cōmon law in Kent And the booke 22. E. 4. 19. affirmeth that in demaunding Gauelkind lande a man shall not néede to prescribe in certeine and to shew That the Towne Borowe or Citie where the landes be is an auncient towne borowe or citie and that the custome hath bene there time out of mynd that the lands within the same towne borow or citie shuld descend to al the heires males c. But that is sufficient inoughe to shewe the custome at large and to say That the land lyeth in Kent and that all the landes there be of the nature of Gauelkynde For a writte of partition of Landes in Gauelkinde saithe Maister Litleton shal be as generall as if the landes were at the Common lawe although the declaration ought specially to conteine mention of the Custome of the Countrie This vniuersalitie therefore considered as also the straite bonde whereby the custome is so inseperably knit to the land as in manner nothing but an acte of Parleament can clearely disseuer them I sée not how any Citie Towne or Borowe can be exempted for the only default of putting the Custome in vre more then the Eldest Sonne in the case before may for the like reason prescribe against his yonger Brethren But here before I conclude this part I thinke good first to make Maister Litletons aunswere to suche as happely wil demaund what reason this custome of Gauelkinde discent hathe thus to diuide land amongst al the Males contrarie to the manner of the whole Realme besides The younger sonnes saith he be as good gentlemen as the Elder they being alike deare to theyr cōmon auncestor from whom they claim haue so much the more néede of their friendes helpe as through their minoritie they be lesse able then the elder Brother to help them selues secondly to put you in remembrance also of the statute of Praerogatina Regis Ca. 16. Where it
the Customes it selfe And in this behalfe also some haue doubted whether the Brother or Vncle shall haue the aduantage of this Custome bicause the wordes thereof extend to the Sonne only but let vs procéede There belongeth moreouer due by the Tenant to each common person being his Lord of Land in Gauelkind Suite to his Court the oathe of fidelitie and the true doing and payment of all accustomed Rents Dueties and Seruices Also if the Tenant dye leauing his Heire within the age of fiftéene yeares the Lorde hathe authoritie to committe the nouriture of the body and the custodie of the goods and landes of the infant to the next of the kinred to whome the inheritance cannot descend But as neither the Lorde ought to take any thing for the custody neither to tender to the Heire any marriage at all So must he take good héede that he credit not the custodie to any person that shall not be able to answere therefore For if the Heire at his full age of fifteene yeares shall come to the Lordes Court and demaunde his inheritance although the Lord may distreine the Gardien to yeelde his accompt as it appeareth 18. E. 2. Auowrie 220. Yet in defaulte of his abilitie the Lord himselfe and his Heires remaine charged to the Heire for the the same Furthermore if the Tenant shall withdrawe from the Lord his due rents and seruices the custome of this Countrie giueth to the Lorde a speciall and solemne kinde of Cessauit and that after this manner The Lord after suche a Cessing ought by award of his thrée wéekes Courte to séeke from Courte to Court vntill the fourth Court in the presence of good witnesse whether any distresse may be found vpon the Tenement or No And if he can finde none then at the fourth Courte it shal be awarded that he shall take the Tenement into his handes as a distresse or pledge for the Rent and seruices withdrawne and that he shall deteine it one yeare and a day without manuring it within whiche time if the tenant come and make agréement with the Lord for his arrerage he shall enter into his tenement againe but if he come not within that space then at the next Countie Courte the Lord ought openly to declare all that his former procéeding to the end that it may be notorious which being done at his owne Courte next following the saide Countie it shal be finally awarded that he may enter into that Tenement and manure it as his proper demeane And that the forfaiture due to the Lord for this ceasser of his Tenant was fiue pounds at the least besides the arrerages it doeth well appeare by the olde Kentishe by word recited in the often remembred treatise of these Customes Neg he syth seald and Neg he syth geld And fiue pound for the were er he become healder That is to say Hathe he not since any thing giuen nor hathe he not sence any thing payd Then let him pay fiue pound for his were before he become tenant or holder againe But some copies haue the first verse thus Nigond sithe seld and nigon sithe gelde That is Let him nine times pay and nine times repay And here by the way it is to be noted that this word were in olde time signified the value or price of a mans lyfe estimation or countenance For before the Conquest each man in the Realme was valued at a certain sūme of money hauing regarde to his degrée condition and woorthinesse as is more at large shewed in the Table to the translation of the Saxon lawes wherevnto for this purpose I will send you This custome of Cessauit is set foorth in the treatise of Customes and hathe béene allowed of as Maister Frowike 21. H. 7. 15. reported in time passed but whether it be also at this day put in vre I cannot certainely affirme But nowe as these aduantages arise to the Lorde from his Tenant So on the other side the Lord also ought to suffer his Tenant to enioy the benefite of such customes as make for his auaile And therefore first he ought to let him alien his land at his owne pleasure without suing to him for licence He ought also to be contented with one suite to his Court for one tenement althoughe the same happen to be diuided amongst many of verie right also he ought to admit an Essoine if any be cast for the Tenant whether it be in a cause of Plainte or for common suite to his Courte And lastlie he may not exacte of him any manner of othe other then that of Fidelitie whiche groweth due by reason of his Tenure And thus leauing the Lorde and his Tenant let vs come to the husband and the wife and first shew what courtesie the husband shal finde by order of this custome after the death of his wife that was seised of landes of Gauelkind tenure and then what benefite the wife may haue after the decease of her Husband dying seased of Landes of the same kinde and nature The Husband saith our treatise of Gauelkind Custome shall haue the one halfe of suche Gauelkind land wherein his wife had estate of inheritance whether he had issue by her or no And shall holde the same during so long time as he wil kéepe him selfe widower and vnmarried For if he marrie he looseth all Neither may he committe any waste more then Tenant by the courtesie at the common lawe may So that one way namely in that he shall haue his wiues land for lyfe thoughe he neuer had issue by her this our Custome is more courteous then the common lawe but an other way I meane in that he shall haue but the one halfe and that with a prohibition of second marriage it is losse beneficiall Howsoeuer it be it holdeth place and is put in practise at this day The wyfe likewyse after the death of her Husband shall haue for her lyfe the one moitie of all such landes of Gauelkind tenure whereof her Husband was seised of any estate of inheritance during the couerture betwéene them Of whiche Custome also though it excéede common measure the common lawe of the Realm bearing alwaies speciall fauour to Dower hath euermore euen hitherto shewed good allowance Neuerthelesse as tenant by the courtesie after this Custome had his cōditiōs annexed so tenant in Dower by the same Custome wanteth not some conditions following her estate One that she may not marrie at all an other that she must take diligent héede that she be not found with Childe begottē in fornicatiō For in either case she must loose her Dower But yet so that lawful matrimonie is by a meane contrarie to the Apostolique permission vtterly forbidden And the sinne of secret Lecherie according to the Popishe Paradoxe Si non caste tamen caute is in a sorte borne and abidden Seing that by this custome she forfeiteth not in this later case vnlesse the childe be borne and heard to crye and
for her endowment and the other to her departed husbande to be bestowed by his executors if he made a testament or by the discrâ—tion of the ordinarie if he died intestate The selfe same order is at this day obserued in the Citie of London and the same in effect was long since vsed throughout the whole Realme For it is euident bothe by the lawe of King Canutus before remembred by Maister Glanuille in his booke Ca. 18. and by the wordes of Magna Carta that the wyfe and Children had their reasonable partes of the goods by the common lawe of the Realme howsoeuer it came to passe at the length that it was admitted for law but in such Countries only where it was continued by daily vsage as it is holden 17. E. 2. and in many other bookes that al the writs in the Register De rationabili parte bonorum Haue mention of the speciall Custome of the Shyre in whiche the part is demaunded But as in déede at this day partition of Chattels is not vsed though in the meane time it hathe not lost the force of common lawe as many thinke through out the whole Realme so is it so far as I can learne vanished quite out of all vre within this Countrie also And therfore séeing the Gardein is deliuered of this charge we also wil leaue to speake further of the goods and come to the partition and custodie of the land of this Infant If a man die seised of landes in Gauelkinde of any estate of inheritance al his Sonnes shal haue equal portioÌ„ if he haue no Sonnes then ought it equally to be diuided amongst his daughters But yet so that the eldest Sonne or Daughter hath by the Custome a preeminence of election and the youngest Sonne or Daughter a preferment in the partition For as of auncient time there ought to be graunted to the eldest the firste choice after the diuision so to the parte of the youngest there ought to be allotted in the diuision that peice of the Mesuage whiche our treatise calleth Astre By whiche word is ment as I coniecture for otherwise I haue not learned either the Hall or chiefe roome of the house either els the well for water or the Southe side of the building For Astre being sounded without s may come of the Latine woord Atrium whiche signifieth a Hall or of Haustrum whiche betokeneth the Bucket of a well or of Austrum the Southe side euery of whiche haue their particular commodities aboue the rest of the house or tenement Or otherwyse if that shal like any man better being sounded with s it may be deduced from the Frenche word Asistre by contraction Astre whiche is as much as a site or situation and with the Article le before it Lestre a Churcheyard or Court about a house But whatsoeuer the woord meane I will not longer labour in it seing that at this day there is no suche regarde made in the partition but only consideration had that the partes them selues be equall and indifferent Now therfore if the Childe be vnder the age of 15. yeres the next Cousin to whoÌ„ the inheritance may not descend shal haue the education order of his body landes vntil suche time as he shall attaine to that age euen as the Gardein in socage at the common law shall kéepe his vntill the warde aspire to fouretéene And in all other things also this customarie Gardein is to be charged and to haue allowance in suche sorte and none other then as the Gardein in socage at the common law is Saue only as it is partly remembred already that he is bothe chargeable to the Heire in accompt for his receipt subiect also to the distresse of the Lord for the same cause Yet doe I not heare that the Lordes take vpon them at this day to committe the custodie of these Infants but that they leaue it altogether to the order of the next of the Kinne the rather belike for that they them selues if they intermedle stande chargeable in default of the abilitie of suche as happely they might credit therewithall So that vpon the whole matter the addes consisteth only in this that Gardein in Socage at the common Lawe shall keepe the land till the Infant be fourtéene yeares of age and Gardein by this custome till he haue attained fully fiftéene whiche diuersitie ariseth not without great reason For whereas the Infant in Socage at the common law cannot make alienation of his land vntill he haue reached to the full age of 21. yeares although he be long before that frée from all wardship The Infant in Socage by this Custome may giue and sell his land so sone as he is crept out of this Custodie And therefore it was expedient at the leaste to adde one yeare to the common Lawe before he should be of power to depart with his inheritance whiche otherwise being vnaduisedly made away might worke his owne impouerishment and ouerthrowe And truly it séemeth to me that the Custome it selfe hath a watchefull eye vpon the same matter in so much as it licenceth him at fiftéene yeares Not to giue his Land for that he might doe for nothing But to giue and sell his Land whiche it meaneth he should not doe without sufficient recompence Suche like interpretation the common Lawe also séemeth to make of this custome both by the opinion of Vauasor 5. H. 7. who said the it was adiudged that a release made by such an Infant was voide by the sentence of the Booke 21. E. 4. 24. where it was said that an infant cannot declare his will vpon such a Feoffment and by the iudgement of Hank 11. H. 4. who also helde that a warrantie or graunt of a reuersion made at suche age was to no purpose at all althoughe a lease with release might happely be good by the Custome bicause that amounteth to a Feoffment And in my simple iudgement it is not fit that this Custome should be construed by equitie for as muche as it standeth not with any equitie to enable an infant of litle discretion and lesse experience to sell his land and not to prouide withal that he should haue Quid pro quo and some reasonable recompence for the same for that were not to defend the Pupill and Fatherles but to lay him wyde open to euery slye deceipt and circumuention In whiche respect I cannot but very well like of their opinion who holde that if an Infant in Gauelkinde at this day will sell at xv yeares of age these thrée things ought of necessitie to concurre if he will haue the sale good and effectuall The firste that he be an heire and not a Purchasour of the land that he departeth withall The second that he haue recompeÌ„ce for it and the third that he do it with liuerie of seison by his owne hand and not by warrant of Attourney nor by any other manner of assurance And these men for proofe
quilz pusent lour terres in that which shal be needeful And that they may their landes lour their tenementz tenements doner vender sauÌ„z conge demauÌ„der a giue and sell without licence asked of their lour seignerages sauues a seignorages les rentz Lords Sauing vnto the Lordes the rentes and e les the seruices seruices dues des mesmes le tenementz due out of the same tenements Et que touz e chescun And that al and euery of them puseit per Brë le roy may by writ of the kyng ou or per by pleynt plainte pleder pur lour plede for the obteining drou purchaser auxibien de lour Seignerages come des auters of their right as well of their Lordes as of other men gentz Et clament auxi que la Commune de Gauylekendeys And they clayme also that the communaltie of GauelkindmeÌ„ que ne tenent mes que tenemenz Gauylekendeys which hold none other then tenements of Gauelkind nature ne deiuent venir a la comune Somonse del Eire oug t not to come to the common Summonce of the Eire mes but ke per Borgesaldre only by the Borsholder and iiij foure homeÌ„s men de of la the Borghe Borowe hors except pris les villees que deiuent responder per xij hoÌ„mes en le Eire the townes which ought to aunswere by twelue men in the Eire Et And they clament clayme auxi also que sil nul tenant en Gauylekend seit atteint that if any tenant in Gauelkinde be attainted de of felonie felonie per que for the which il he suffre suffreth Iuyse de mort iudgement of death eit le Râ—y the King touz ses chateux shal haue all his goods e son heire eir heire meintenant foorthwith apres after sa his mort death seit shal enherite de touz be inheritable to all ses his terres landes tenemenz tenements que which il he tient held en in Gauylekende Gauelkind en in fee fee e en heritage e les tiendâ—a perâ—â—â—â— les in inheritance and he shall holde them by the same seruices seruices et customes customes sicoÌ„e ses auÌ„cestres les tyndroÌ„t dont est dist as his auncestors held theÌ„ whervpoÌ„ it is said en in Kenteis Kentish þe the fader father to to þe the boghe boughe and þe the son son to þe plogh to the plough And if Et he si il eit haue a femme wife meintenant seit dowe forthw t be she endowed by ê‘ the le heir heire sil seit dage if he be of age de of la the meytie one half de touz les terres e tenemeÌ„z que son Baroun tint of al the landes tenements which her husband held de of Gauylekend Gauelkind nature en in fee fee a auer e a tener solonc la fourme de to haue to hold according to the forme suthdyte hereafter declared Et And de of tiels such terres lands le the Roy King ne auera An shal not haue the yere ne nor wast wast mes tant soulmeÌ„t les chateux sicome il est auaÌ„tdit Et si but only the goods as is before said And if any man of nul Gauylekendeis Gauelkind either pur felonie either for felonie ou or pur for Ret suspitioÌ„ de of felonie felonie se suthtres A drawe him de la pees out of the country e scit en counte demande com il appent be demauÌ„ded in the countie as he ought e puis be vtlagheâ—ou sil se met en scinte eglise et foriure la terre one afterward vtlawed or put him self into the holy church abiure the le Reaume le Roy auera lan e le wast de ces terres de land the King shal haue the yere that wast of his lands of touz all ses his tenemenz tenements ensemblement oue touz together with all his goods ces and chateus chattels issint que apres lan e le tour le plus ê“cheyn Seigâ—ou Seigneurs So that after the yeare the day the next Lord or Lordes eyent shall leur haue their eschetes Eschetes de celes terres e tenemenz of those landes and tenementes chescun euery Seigneur Lorde ceo that que whiche de is luy est tenu immediatly sans holden men of him E clament And they claime auxi also que that si if ascun any tenant tenant en in gauylekende Gauelkind murt dye et seit and be an enherite inheritour de of terres landes e de and tenemenz tenementes de in Gauylekende Gauelkinde que touz ses fitz that all his sonnes shall partent parte cel that heritage inheritaunce per by ouele equall porcioun portions Et And si nul heir if there be no madle ne seit seit la partye feit entre les females sicome heiâ—e male let the partition be made betweene the females euen entres les freres as betweene brothers Et la mesuage seit autreci entre eux And let the messuage also be departed departi mes le astre demorra al pune betweene them but the Astre shall remaine to the youngest sonne ou or al punee daughter e la value seit de ceo liure a chescun des And be the value therof deliuered to eche of the parceners parceners de of cel that heritage heritage a. from xl fourtie pes de cel Astre si feete from that Astre if le the tenement tenement le will peut so suffrir suffer E And donkz then le eyne frere eit let the eldest brother haue la primere electioun e les autres apres per degree the first choyce the others afterward according to their degree Ensement Likewise de of mesons houses que whiche serront shall be trouets founde en in tieus suche mesuages Messuages seient departye entre les heirs per ouele porcioun let them be departed amongst the heires by equal portions Ceo est that is asauoir per peies sil est mistier Sauue le couert del Astre to weete by foote if neede be Sauing the Couert of the Astre que remeynt al pune which shal remain to the yongest son ou al punee sicome il est auandist or daughter as is before said issi que nequedont que le punc face renable gre a ces So neuerthelesse that the yongest make reasonable amendes to his parceners de la partye que a eux appent parceners for the part which to them belongeth per agard de by the award of bone good gentz meÌ„ E des auaunditz tenemenz dont vn soule Sute And of the aforesaid tenements whereof one only suite tant soulement soleit estre feit auaut ne seit per la resoun de la was wont to be made before time be there not by reason of the partition partye fo rs vn soule sute faite sicome soleit auant but one sole suite made as it was before accustomed
mes But que tous les parceners facent contributiâ—un a celui que face yet let al the parceners make contribution to the parcener which maketh la sute pur eux Ensement seient les chateus de Gauylekendeys the suite for theÌ„ In like sort let the goods of Gauelkind persons parties en treis apres le exequies e les dettes rendues si il y cit be parted into .3 partes after the funerals the debts payed if ther be issue multer en vye issi que la mort eyt la vne partie e les fitz lawfull issue on liue So that the dead haue one parte his lawfull e les filles muliers lautre partie et la femme la tierce partie sonnes and daughters an other parte and the wife the thirde parte Et si nul issue mulier en vye ne seit And if there be no lawfull issue on liue eit la mort la meite let the dead haue the one half e la femme en vye lautre meytie Et si le heir ou lez heirs seit and the wife on liue the other halfe And if the heire or heires shal be ou seyent de deins le age de xv ans seit la nouriture de eux vnder the age of .15 yeares let the nourtriture of them be committed baille ê‘ le Seig. al plus procheyn del sank a qui heritage ne by the Lord to the next of the bloud to whom the inheritaunce can peut not descendre descende issi que le Seign pur le bail rem ne prengne So that the Lorde take nothing for the committing Et quil ne seit marie per le Seign mes per sa volunte thereof And let not the heire be maried by the Lord but by his own demeine per le conseil de ces amys sil veut Et quant cel will and by the aduise of his friendes if he will. And when suche heir ou ceux heirs sont de plener age de .xv. auns seient a heire or heires shall come to the full age of fifteene yeares let their eux lour terres e lour tenemenz liures ensemblemeÌ„t one lour lands and tenements be deliuered vnto them together with their chateaux et oue les enprowemenz de celes terres outre goods and with the emprouements profits of the same lands remayning renable sustinance de quel enprouement e chateux aboue their reasonable sustenance of the which profits and goods seit tenu a respondre celui qui de luy a tera la noriture let him be bounde to make aunswere which had the education of the ou le Seigneur ou ses heires que cel noriture auera baille heire or els the Lord or his heires which committed the same education Et ceo fet a sauoir que del houre que ceux And this is to be vnderstoode that from such time as those heirs Gauylekende seient ou ount passe le age de xv auns heires in Gauelkind be of or haue passed the age of fiftene yeares list a eux lour terres ou tenemenz doner e vendre it is lawefull for them their landes or tenementes to giue and sell a at lour their volunte Sauues les seruices au chefz seignorages com il at their pleasure Sauing the seruices to the chiefe Lordes as is est deuant dit Et si nul tiel tenant en Gauylekend meurt e eit before sayde And if any such tenant in Gauelkind dye and haue a femme que suruiue wife that ouerliueth him seit cele femme meyntenant douwe de let that wife by and by be endowed of la meite des tenementz dont son baroun morust vestu e the one halfe of the tenements wherof her husbande dyed vested seisi per les heirs sil seient de age ou per les Seigneures seised by the heires if they be of age or by the Lordes if si les heirs ne seint pas de age the heires be not of age issi que ele eyt la So that she may haue the moietie one halfe meite de celes terres e tenemenz a tener tant com ele se of those landes and tenementes to holde so long as she keepeth tyent veue her a widow ou de enfanter seit atteint per le auncienne or shal be attainted of childbyrth after the auncient vsage vsage ceo that est is to asauoir que quant ele enfaunte e say that if when she is deliuered of childe the lenfant seit oy crier E que le hu e le cry seit leue infant be heard crye and that the hue and crye be raysed e le pais ensemble and the countrie be assembled e eyent weue de lenfant ensi faunte and haue the viewe of the childe so e de la mere borne and of the mother adonks perde son dowere enterement e then let her loose her Dowre wholy and autrement nyent tant come ele se tient veue otherwise not so long as she holdeth her a widowe dont il est wherof it is dist en kenteys se þat His wende se His lende sayde in Kentish he that doth wende her let him lende her E And clament auxi que home que prent femme que eit heritage they clayme also that if a man take a wife whiche hath inheritance de of Gauylekend Gauelkind e la femme murge auant luy and the wife dyeth before him eit le Baroun let the husband haue le meite de celes terres et tenemenz tant come the one halfe of those landes and tenements whereof she died seised il se tient veuers dont il morust seisei saunz estrepement so long as he holdeth him a widower without doing any strippe ou wast ou exile fere le quel kil y eit heir entre or waste or banishment whether there were issue betweene eux them ou or noun no Et sil prent femme And if he take another wife trestout perde let him loose all Ei And si nul tenement de Gauylekend eschete et ceo eschete seit a if any tenement of Gauelkinne do escheate and that escheate be to nul seigneur que tiene per fee de hawberk ou per seriauncye any Lord whiche holdeth by fee of Hawberke or by Sericancie per by mort death ou or per by Gauelate sicome il est suthdite is heareafter sayd ou li â—â—it or be to him rendu de son tenant que de li auant le tynt per quiteclamauÌ„ce rendred giuen vp by his tenaunt whiche before held it of him by quiteclaime de ceofete ou seit sa eschete ê‘ Gauelate sicome il est de suthdit thereof made or if his eschete be by Gauelate as is hereafter sayed remeyne cele terre as heirs impartable let this land remaine to the heires vnpartable Et ceo fet asauoir And this is to bee la ou le tenant ensirendant vnderstood where the tenant so rendring nule seruice