Hawisia so that sibi in the singular number has not relation to any else but to the infirm Wibert To him it was that the two pence was to be paid and the profits of the Lands in common to all the infirm of that house in perpetual Almes And to Gavel-kind that is to say that all the Brethren of that Hospital should have the like share and propriety in that Acre and the Half as the Sons of any one could have in their Fathers Land of that nature and if not by this way I can find no other to make any sense of it for this clause And to Gavel kind hath reference clearly to the concession and Habendum and not to the Reddendum and if so who are those that should hold it in Gavelkind The Infirmes no for they were a body though sickly that could not dye Nor the Sons or Grand-children of Wibaldus for they had divessed themselves of this Land and invested their decrepit brother Wibert with the rest of the infirmes of that Hospital with it Nor could the Tenant claim any right by this Deed for that it hath not relation to any Tenancies besides Hospitals in those dayes did not use to create unprosetable Tenures to themselves and where Land is said to be held in Gavel-kynd there is an Estate of Inheritance they are Syncategorematical or relatives In the like sense is that Deed which Mr. S. makes his Script 〈◊〉 pag. 184. where RaduÌ„s From wadidit concessit 〈◊〉 Fratribus Hospitalis Sancti Laurentii juxtà Gantunriam by his Deed septem acras terrae meae saith he tenendas in Gavel-kynde de me heredibus meis â—â—berâ— quiâ—â—â— reddendo inde annuatim mihi vel beredibus meis XLII denarios c. pro hac donatione confirmatione dederunt mihi praedicti fratres heredibus meis quinque Marcas â—ierlingorum All that I can gather out of this is that Ralph Erone sold to the Brethren of St. Lawrences Hospital seven Acres for five Mark and reserved a Rent of two and forty pence the Land to be held of him and his Heirs in Gavel-kind which as in the other of Herbaldune so was this to be understood to be to the common land 〈…〉 and behalf of all the Brethren for if not so I desire 〈◊〉 informed how it could ruâ— into the Tenuâ—e of Glaver-lâ—ynd amongst them any other way and here alsoâ—eâ— me caution you to observe that in the first Deed it is saiâ— to be granted in perpetuam Eleemosyndm And 〈…〉 and then comes in with the Reddendum so like wise in the second Deed where the Tenondum and the Reddendum are at a distance that by means thereof it is not probable at all that Gavel-kynde should have any relation to the Reddenda in either and seriously considered doe plainly contain a different use from either Rents or Purchase But to proceed to those several grants produced by Mr. S. in relation to the Term as that of R. dei gratia Sancti Augustini Cantuar Script 4. shere somewhat is wanting I believe it should be 〈…〉 ejusâ—am loci conventus made to Jordanus â—e Sâ—res much his Heirs of XL. acres of Marsh-land be longing to their Mannour of Cistelet Script 6. and that of Alan the Prior and the Convent of Christ-Church in Canterbury unto Theb. de Einesford and his Heirs of fourscore Acres of Land in their Lordship of Northocholt by them to be holden by rent and Sute of Court at Orpinton ad Gavilikende Script 7. as also that of the same Prior and Convent to Stephen de Kinardentone of 〈◊〉 Acres and to his Heirs ad Gaveliâ—hinde Again that Deed of Gaufridus the Prior and the Convent of Christ-Church Canterbury to Joni and his Heirs of a Sheep Pasture in Osmundeseye Tenend Script 8. say they de nobissuccessivè ad Gavel-kynde by Rent and that his Heirs successively shall give de relevio LVIs. and Sute of Court at Leysdum All these Grantees had by the vertue of these several Grants an instatement into the Tenure of Gavel-kind which was an Estate of Inheritance and was to runn in a Parallel line with Lands of the like nature that is that the Sons or Children of the Possessor when Deceased should hold those Lands according to the Rule of partition in Gavel-kynd and there is no difficulty in them as I can perceive all that I find is that the Granters have Created an Estate of the Tenure of Gavel-kind in case there had been none before none of them to my apprehension carry with them any notable Antiquity Least of all to the purpose is that Script 5. in pag. 178. where it is said Predecessores Dni Regis concesserunt Manerium de Wells in com Cant. postea concessum erat in puram perpetuam Elcemosynam nunquam partitum fuit nec est portibile that is it was never parted nor is partible to which all that I can say is that it never was nor is like to be so holding Gavel-kynd-land But the passed discourse in this Chapter only shews the Nature and Tenure of such Lands And makes nothing at all to the Etymology or the investigation of the true derivation of the word in contest To conclude Mr. S. in page 150. draws from his several discourses a double Consectary as he is pleased to term it 1. That the King may hold Land in Gavel-kynde I must needs approve of it and in case the King doth hold such Lands and at his decease leaves several Sons behind him they must part it and that Princes have so done I have already proved by the several examples of the Princes of Wales and of the German Empire 2. That the King holding Land in Gavel-kind in case he shall grant it away to any Religious House in puram perpetuam Eleemosynam in frank Almoign it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the Religious men shall infeoff with it The first part of this I grant for if such Lands be given to any Religious society they remain partible as to the profits of them that is to say among the Society and so doth Land of any other nature whatever in the same manner being vested pass into a partible Quality that is the whole body having an Interest all members of that body receive part and share of the benefit but for any other sort of partition I cannot fancy how it should be among them And then again it doth not necessarily follow that those that are by this Society interessed with the holding of those Lands under them should hold them in the Tenure of Gavelkind for by such a Grant as I said before in this Tenure of Gavel-kind the said Society or body divest themselves of the fee-simple and invest the taker with an estate of inheritance And again this must have a full reference to the Society their manner of granting it and then it may
practice in all such places where Pecus is in greater abundance than Pecunia And for the Antiquâ—ty of Partition of Lands we shall find an example thereof in the holy Scripture where it seems to me that the Community of the Law and the Knowledge of it are both taken for granted this being a Case of Law resolved upon a question and it is to be found in the 21 Chapter of Deuteronomy verse 7. where though the Case be in Bigamy yet there we find an Order of Partition which was to be observed even nolenti patre If a man hath two wives saith the Text one beloved and another hated and they have born him Children both the beloved and the hated and if the first-born son be hers that was hated then it shall be when he maketh his sons to inherit that which he hath that he may not make the son of the beloved first-born before the son of the hated which is indeed the first-born but he shall acknowledge the son of the hated for the first-born by giving him a double portion of all that is found with him for he is the beginning of his strength the right of the first-born is his This Law provides that the eldestson notwithstanding the father's hatred shall have his right in all whereof the father was possessed according to the Rule of Right which was thus In case a man had five sons the father's possessions were divided into six parts and the eldest had by right two of those parts By this we may observe the Antiquity of the Partition of Lands and Goods constituted even amongst those People to whom God himself was Legislator and it is observable that it was at the first Plantation of the Land of Canaan where to me it seems that this Law glanceth at the fundamental of Dividing binding up the father to do this rectifi'd Justice to his son got of the woman hated * Which Law as Mr. Selden illustrates it may seem to be grounded upon the practice of Noah Noachus tres filii ejus Semus Chamus laphetus qui velut Adae in generis humaai post diluvium instaurationem personam jam simul induerant Domini pro indiviso rerum omnium sacti sunt Formula donationts est Genes cap. 9.2 Crescite multiplicamini replete terram Pavor vester Tremor vester erit super omne animal terrae super cunctum volatile coeli c. Et scimus ex sacris literis Tellurem à Noachid is seculis aliquot post diluvium esse divisam A Japeto filiis ejus divisae sunt Insulae Gentium in terris suis unusquisque juxta linguam suam juxta familias suas in nationibus suis Quod in Genes 10.25 3. ait Moses Scilicet à Tanai fluvio usque in Mare Atlanticum sâ—u per Magnam Asiae Occidentalis quae in Septentrionem vergit partem praeter totam Europam limitibus juxta familiaruâ— rumerum designatis sedes ut Domini privati accipere Quemadmodum Chamus posterique ejus non dissimili modo quod Austro Africo expofitum est Semus plagas Orientales usque ad Indiam Invaluit etiam Traditio ipsum Noachum perinde ac si totius Dominus in solidum aut Arbiter per comoromissum suisset distributionis hujus sâ—â—l privati hujusmodi Dominii post diluvium instaurationis autorem suisse idque 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 juxta oraculnm divinitus acceptum eamque anno aetatis sua 930. qui à diluvio erat 330. ante obitum ejus vigesimus Testamento firmâsse atque moribundum illud in Semi silii primogeniti maâ—us tradidisse cunctosque simul monuisse nequis corum fratris fines invaderet nec injuriâ alter alterum afficeret quoniam inde ut discordiarum atque bellorum intestinorum causa oriretur foret necessum Selden Mare clausum lib. 1. cap. 4. To which I think fit to subjoyn what he writes in the same Book cap. 8. how this partition was mystically in the mist of their inventions observed by the Heathen Vera sunt quae loquuntur Poetae ut rect è Lactantius sed obtentu aliquo specieque velata Et sic veritatem mendacio velaverunt ut veritas ipsa persuasioni publicae nihil derogaret Fabuloso quod diximus tempore devictis scribunt Titanibus sorte Mundum divisisse Deos fratres Iovem Pluronem Neptunum Iovi Coelum Plutoni Inferna Neptuno Mare cessisse Rejectis autem augis illis de sydereo heic coelo seu aethere de infernorum seu mortuorum regno demum de Terra tota fratrum omnium post divisionem communi quibus patienter sibi imponi vulgus sinebat res ipsâ— quam in larvatâ hâc historiâ latere veterum aliquot docuere alia omnine erat Non Deos hosce sed homines fuisse asserunt Nec coeli sed plagae orientalis ex qua mortalibus lux datur unde superior visa est ideoque coelum dictum Iovem Regem fuisse Plutonem autem accidentis quae solis recessum Noctemque â—stendit unde inferior ea dicta inferna Maris denique interjectarum Insularum Dominum fuisse Neptunum è Lactantio porra scribit Iupiter Neptuno imperium dat Maris ut Insulis emnibus quae loca essent secus Mare omnibus regnaret Iohannis Gryphiander de Insulis Cap. 31. S. 75. de Tribus Noachi filiis rem totam de tribus Diis narratam fidentèr capiat Verba ejus sunt Id â—roculdubio ex partitione Terrarum inter Tres filios Noachi ex quibus Japheto Insulae obvenerunt causam traxit Sir Henry Spelman in Verb. Gaveletum thinking Gavelkind to be of a Sà xon Original affirms it to be brought out of Germany and describes the Tenure of it very justly Qua omnes filii ex aequis portionibus patris adeunt hereditatem and out of Tacitus proves it to be Mos vetus Germaniae Out of whom I shall add by way of explanation what he in his Tract de Moribus Germanorum saith Haeredes tamen successoresque sui cuique liberi nullum Test amentum si liberi non sunt proximus gradus in possessione fratres patrui avunculi This proximus gradus argues precisely for this antient usage although it had not been set down to be Mos vetus Germaniae and deduced from these antient Times we find it also to this day even in regno adeundo among the Princes of the German Empire which was once very wittily evicted by a merry Gentleman or as some say the Duke's Jester who perceiving after the death of one of the Dukes of Saxony the Brethren participants claiming according to custom their Apportionments and Divisions in the Dukedom with the Elder Brother involv'd into high discontents and the Council of the Nobility at a stand what course to take for a reconciliation of them about the parting of the Demesns of the deceased Duke This Man comes in and borrows of the young Duke
who it seems hath some preference by his Primogeniture his Gown undertaking to shew them a way of Composure The Duke granting for diversion rather than from any expectation of solid counsel his desire the Jester retiring into the conveniency of a near-adjoyning Closset with his Penknife cuts the Gown into long shreds from the shoulders to the bottom and in this injur'd and spoil'd form returns with it on to the Duke and Council who wondring at this fancy He told them That the Dukedom as yet was like the Gown as it was lately perfect and in order but that which was now insisted upon was to render the Dukedom as he had done the Duke's Gown But to prevent the like mis-hap among other such Participants in these our days the late Duke of Brunswick did during his own life apportion his Principality to his three Sons leaving to each of them their Allotments intire who also might each of them have claimed share in one and the same provided it had not been ended by Comprimise The like Tenure among the Heritors of Lower Germany is very frequent especially in the County of Flanders Mr. S. hath saved me the labour of shewing the usage of it in France demonstrating how it takes place even in Paris it self where it is called by the name of the Roturier by which name in like sort the Tenure is also known and used over all the Island of Jersey excepting some few Families and in the same manner it overspreads all the Dukedom of Normandy this last-mentioned Island being formerly an Appurtenant thereof All which considered makes it seem to me to be nothing but the Relicks of those antient Gallick Customs taken up and used upon the Plantation of this part of the Continent at the first and from hence in probability it is as some imagine that the Britans of England must look for their true Ancestrie both as to Customs Language and Progenitors concerning which I shall refer you to Mr. Camden whose labours have set up such a light as can never be extinguish'd who discoursing of the first Inhabitants of Britain misdoubting the History of Brute faith That hereupon it may be concluded That the antient Gauls Inhabitants of the Country now called France and the Britans of this Isle spake one and the same Language and by necessary consequence the Original of the Britans is to be reduced unto the Gauls for me must confess that France or Gaul was Peopled before Britain as lying nearer unto Armenia And that the Gauls sent out and planted their Colonies all abroad in Italy Spain Germany Thracia and Asia much more then by all reason and congruity in Britain so near and no less plenteous than the rest And Dubartas doth observe that most probably all Plantations were by Colohies out of the East which in time as it were gradatim overspread the West and North and not * Martiaus Zeillerus in his Hispaniae Lusitaniae Itinerarium out of a deseription of France wrote by Franciscus de Rues writing of the Province of Bigoâ—re tells us by way of wonder and special remarque that Mos hic obtinuit ut primogenitus omnium bodorum paternorum haeres evadat sive nobilis sive ignobilis onely France but Italy it self the Garden of European Policy which some would have to be a Colony also out of Gauâ— thinks no dishonor to retain her old Customs in preserving this Tonure of Partition of Lands from her first Planters Which was observed by one William Thomas that wrote a desâ—ription of Italy Anno Domini 1549. who in his third Chapter averrs That the Inheritance of Lands in Italy goeth by Gavelkind that is to wit one Brother as good part as another So that if a Conte which is as much to say as an Earl have twenty Sons every one of them is called Conte and the youngest hath as good part in his Father's Lands and Goods as the eldest unless it be in the Estates of Princes as of Mantoua Ferrara Urbino and such others which the eldest evermore enjoyeth And by this means it is come to pass that in process of time with change from Wealth to Poverty there be divers Earls and Marquises without Land or Goods retaining nevertheless the glory of that name to them and theirs for ever And I have read in a more Modern Author who doth not ascribe it to any reason but onely relates the bare State that there be several Counts in Italy who at the same time such is the smallness to which their Estates are reduced by this partition are not able to maintain a Horse a Hound and a Whore Mr. Thomas hath hapned right upon their Tenure though he denominates it by such a Term as is utterly unknown to any Italian but observes that the Tenure is generally among the Families there excepting those who of latter days by force or fraud have wrested themselves from the Dominion of the Roman Empire and in such places the eldest Son inherits whilst the other Families still maintain their old Customs though to the ruine and subversion both of Names and Families Which Custom cannot fancy to be an Innovation of latter Ages but an Impression from the antient Inhabitants when first they did spread themselves in Colonies over Latium This for the proof of the general usage of this Partition of Lands in most parts of Europe and the probability of its use amongst the first Planters of any Nation Proceed we next to shew as being very consonant to the investigation of the Original of this Tenure CHAP. II. The Condition of the Britains when Caesar found them That Gavelkind was antiently among them Of the British Judges the Druides of their Bards Of their Tylwyths Of their manner of Partitions and Laws concerning their Gavel JUlius Caesar resolving upon a War against the Britains for their frequent assisting the Gauls had in the first place to do with the Cantiani whom he Ennoblisheth with the Character of being more civil than the rest of the Britains and renders the reason to be their fire upon the Shore and so the more adapted for Traffick and Commerce with the Gauls who were generally then more civilized than they These Parts upon Caesar's * Beda cap. 2. writing of Caesar's preparations to invade Britaany saith Navibus ectoginta praeparatis in Britanniam transvehitur ubi acerbá primum pugnâ satigatus deinde adversà tempestate correptus plurimam classis partem non parvum numcrum militum equitum verò penè omnem disperdidit Iterum in Britanniam primo vere transvectus dum ipse in hostem cum ingenti exercitu pergit Naves in Anchoris stantes tempestate correptae vel collisae inter se dissolutae sunt Ex quibus 40 pericrunt caeterae cum magna difficultate reparâ—tae suat Caesaris equitatus primo congressu à Britannis victus ibidem Labienus Tribunus occisus est second Invasion first yielding themselves unto him the Second Invasion I term
finibus Controversia est can Controversies of Inheritance or Hereditary Succession arise where one of the Sons by Law and Custom Inherits can there be any Considerable question of bounds where one Son takes Possession of all whereof his Father Died seised excluding his other Brethren in this small Summary of Judgments under the Cognizance of the Druids Caesar placeth these as the most remarkable Customs and eminent Arricles The controversies of Hereditary succession are not considerable where the Land descends to one Son for if it be according to Custom that it should so descend I know not with whom the Controversie should be it cannot be with any of his Brethren for they have no right except it be by our Gavel nor with his Sisters for in case the Father in his Life-time hath not provided for them they are left to his mercy so that the Controversie if any there be where the Land descends to the one excluding all the rest of the Sons must be with himself The controversies of single Haeredation though in Collateral lines could not induce such a remark and notice from Caesar because such questions fall out but rarely even in this well peopled Age neither doth the Trial upon a Majus jus in one days commonly occurr But put the Controversies together as Caesar hath joyn'd them that were submitted to the Judgment and Sentence of these Druids which I am perswaded are of one and the same Nature for bounds betwixt Neighbour and Neighbour may be in question but this I say must not be supposed to be wholly Disjunctive from the rest for thus it is expressed Si de Haereditate de finibus Controversia est it is not with the Connexion of Aut Or and Of but lies plainly in Conjunction and Bounds hath some probable reference to the Inheritance which being to be parted by our Gavel among the Brethren would require much use of the Wisdome and Moderation of the Druids and also of their Authority to set out to every Brother or Participant his portion or part without giving cause of Distast to any For we see where this Tenure at this day is in Force that in case the Proprietor of such partible Lands leaves onely but one Son after him there can be no Quarrel but that that onely Son enters upon and possesseth the Land without Competition or Corrivalship Thus in relation to the Druids the Judges in those Ages I have given a short account a little after Caesar's time they ceased in Gaul for * Pliny lib. 30. c. 1. Pliny saith that Tiberii Caesaris Principatus sustulit Druidas eorum yet in Britain they were in request long after even then when the Romans had almost made perfect their Conquests by the atchieving of that memorable Battel in the Island of Mona at present denominated Anglesey We now proceed in our Discourse to the Bardi who think themselves to be the Loca tenentes Druidum These were the British Heralds and Registers as * De Galliis Ammian Marcellinus records them whom with the Druids and the Eubages he thus makes famous per haec saith he locis hominibusque paulatim excultis viguere studia laudabilium doctrinarum inchoata per Bardos Eubages Druidas Bardi quidem fortia virorum illustrium facta heroicis composita versibus cum dulcibus lyrae modulis cantitarunt Eubages vero scrutantes summa sublimia naturae pandere conabantur inter hos Druides ingeniis celsores c. And of these Bards it is that Lucan in a few Verses hath left so Worthy and Ancient a Memorial which I will not scruple to Transcribe Vos quoque qui fortes animas belloque peremptas Laudibus in longum vates dimittitis aevum Plurima securi fudistis carmina Bardi Of whom Mr. Camden also adds Qui praeterquam quo eo munere funguntur etiam praetexendis Genealogiis operam imprimis studiose navant The carefulness of these Bards from Age to Age hath been so great that there are none who look into such British Historical concernments but easily observe it and also see by that Learning and Knowledge that is extant in their Writings how fit they were to take Care and Cognizance of such matters as concerned their Office in relation to descents upon the Tenure of Partition And although it may take up too much Paper for this small Volume well to spare yet will it be much to our purpose to understand their manner of Recording their Lines and Genealogies so as to six their Pedegrees right and to preserve them free from confusion in their Collateral lines By which care and art notwithstanding their Tenure they kept all unconfounded Then first know that their Genealogies especially of their principal Gentry runs seldome further than to certain Tylwyths which as Doctor Davies expounds it signifies Familia famulitium Tribus which Word takes its derivation either from Tyle i. e. Locus ubi stetit domus vel locus aedificandae domui aptus or else from Tylath which signifies Trabs Tignus whether you take it in the first Derivation then it will afford us the Signification of a place whereupon to build a House or if in the second then doth it hold out in its Signification a Beam in the Building either of which will serve our present purpose for Tylwyth is a Tribe or Family branching or issuing forth of another by that which we in our English Heraldry call second or third Houses so that in case the Great Paternal stock spread or branched it self into several Tylwyths or Houses these Bards preserved the Memorial thereof and observed this method in their ordinary Memorials of Families They carry no second or younger House further than his Tylwyth herein they respect Primogeniture and there cease taking it for granted that the great Paternal stock was or should be so well known that there should be no need at all to mention it referring all the Cadets of a Family and sometimes also the Elder Family it self to their Tylwyth by this Creating in them an exact Propriety to that Stock which way I say was carefully preserved by these their Bards A Specimen whereof though not of great Antiquity yet being exhibited under the hand of one that writes himself Bard I shall present to you and it is thus Mainerch ap Driffyn Lord of Brechnock 1. Blethin ap Mainarch Lord of Brechnock was together with King Rees his Brother-in Law with many other Gentlemen slain by the Normans by West of Brechnock near the River of Uske the place is to this day called the Battel Ellen Daughter of Theodore King of South-Wales and Sister to that noble Rees ap Tudore or Theodore 2. Driffyn ap Mainarch 3. Drympeck ap Mainarch Moreiddig Warwin he was born with an Adder about his neck for which cause he forsook his Paternal Coat and gave the three Childrens Heads their Necks enwrapped about with so many Snakes Proper c. and of him are issued
the Vaughans of Brechnock-shire and many other Gentlemen who are termed Tylwyth Voreiddig 1. Gwgan ap Blethin 2. Cadivor ap Blethin Gryff Gwyr from whom the Families of Brechn Glamorg and Carmatthenshires come called Tylwyth Howel-Melyn that is Howel-Melyns Posterity Owen Gethyn from whom many Gentlemen in Brechnock-shire are descended called Tylwyth Owen Gethyn that is the Posterity or Tribe of Owen Gethin Here you see this Bard hath not onely vouchsafed unto us the Tylwyths arising out of this short Pedigree but also the very meaning of the word in the English Thus were their Memorials preserved by them who the better to infix them and also for a greater stimulum to Heroick Actions in their Songs deduced from Age to Age delivered to them from their Predecessors did celebrate the Praise of their Worthy Men which Custom in some places they yet retain And of so great account were these Bards that by the Laws of Howel-dha an honorable Provision was made for the chief of them in the Court who was to reside near the Person of the Prince and of so great repute was this Place or Office that to the Dignity was annexed a particular Refugium The use of these Tylwyths was to shew not onely the Originals of Families as if their work had been meerly to run over a Pedigree but the several Distinctions and Distances of Birth that in case any Line should make a failer the next in degree which is the same with the German Proximus Gradus may make an unconfounded use of their interest according to the Rules of Partition by their Gavel I told you before how in all their Pedigrees there was a preference of Primogeniture which was onely in honor and respect and not in unequal divisions of the Patrimony for in these the better to carry a light â—â—d lustre they pointed at the Penennedl of each Family who as the Prince of their Tribe and Kindred was always had in much honor and reverence among them Which respect was like that wherewith the Jews did honor their Chiefs mentioning them with that title of respect in calling them sometimes Heads of their Father's house other-while Chief men and in other places of Scripture they are made known by this account viz. By their Generations after the House of their Fathers and in this form did they inroll their Bands of Soldiers for the War for it is written in the Chronicles 1 Chron 7. and 8 chapters that David assembled all the Princes of Israel the Princes of the Tribes c. unto Jerusalem Numb 25.44 In like manner it is recorded in Numbers that the name of the Israelite that was slain was Zimti the son of Salu a Prince of a chief House among the Simeonites And in the following verse it is remembred that The name of the Midianitish woman that was slain was Cozbi the daughter of Zur he was head of a People and of a chief House in Midian Where this order of Partition was in force there is it most necessary that Genealogies should be most exactly kept and by the Mosaical Law so great care was taken in this point that the Tribes were not permitted to have mixtions together by Inter-marriages And although in many of the High-lands of Scotland they have lost this Tenure yet have they with much affection retained their respects to the Heads of their Clans calling them their Chiefs to whom in former times they gave more respect and were with more obedience commanded than by their Princes The Pedigree before recited I told you I gave to shew their manner of recording their Families of Gentry distinguished from their Pen-cennedl I have another that â—â—ows how tenaciously their Gavel was in force among them even in Regno adâ—unâ—o and how by it in process of time that Principality came to great loss and destruction Roderick the Great being Prince of all Wales had three sons among whom he divided his Territory which three sons were called y Tri Twysoc Talaethioc that is the Three Crowned Princes because every one of them did wear upon his Bonnet or Helmet a Coronet of Gold being a Broad lace or Hatband indented upwards set and wrought with precious Stones which in the British was called Talaeth by which name the Nurses do call the Head-band wherewith a Childs head is bound uppermost at this time as Doctor Powel hath critically observed But that it may be the more plain and perspicuous take it Genealogistically thus Roderick surnamed the Great Prince of Wales 1. Mervyn Prince of North-Wales 2. Cadelh Prince of South-Wales Howel-dha in whom the Territories of North-Wales and South-Wales were united and was the second Legislator of the Britans An. Christi 942. 3. Anarawd Prince of Powis After several Successions which I purposely omit to save the labour of needlesly lengthning the Line there from him proceeded one Convyn-Blethin ap Convyn who being Prince of Powis-land divided it to his two sons 1. Meredith ap Blethin who divided his appartment of Powis-land betwixt his two sons 1. Madoc who had upon the Division that part that was called Powys-Uadoc or Madoc his Powis He died Anno D. 1160. at Winchester and was called the Prince of Powys he was a true friend to the King of England Susanua daughter of Gruffyth ap Conan Prince of North-Wales 2. Gruffyth Prince of Powys had another share of Powys land 1. Gruffith Maelor had for his share Bromefield Yale Hopedale Chirk c. 2. Owen Vachan had Mechain-Iscoid c. 2. Cadogan ap Blethin 1 Owyn Brogynton a base son of Madoc ap Blethin had Dynmael and Edeirneon And Doctor Powel in his Additaments to the Cambrian History in those I mean that he hath set betwixt the years 808. and 810. gives a full Discourse of the Primitive use of this Tenure and also of the Modern abuse thereof For upon those great Feuds that arose betwixt the Descendants of Conan Tindaethwy upon this account of Partition He writes thus Here I think fit to say somewhat of the Custom and Tenure of Wales whereof this mischief grew viz. the Feuds betwixt Brethren the Rending the Government in pieces c. that is the Division of the Father's Inheritance amongst all the Sons commonly called Gavelkind Gavel is a British term signifying a Hold because every one of the Sons did hold some Portion of his Father's Lands as his Lawfull Son and Successor This was the cause not only of the overthrow of all the Antient Nobility in Wales for by that means the Inheritance being continually Divided and Subdivided amongst the Children and the Children's Children c. was at length brought to nothing but also of much Bloodshed and unnatural Strife and Contention amongst Brethren aâ— we have here an Example viz. the History of the Descendants of Conan Tindaethwy and many other in this History He means in Lancarvan's British History * I could wish that those Renowned English Plantations in America would examine of what avail
Insulae Britannicae quae sunt XII post haec ab inhabitationibus elongatur quo procedat ignoratur for the difference betwixt the two Languages is not so great but that we may upon good reason believe they were one and the same antiently nor so great a Dissonancy at this day between them but that the footsteps of a former union may easily be observed and * Mr. Selden observes a little of the use in the Defusedness of the antient Language saying Corwallensea in Anglia linguâ semper usi sunt Cambro-britannicâ saltem velut Dialecto variatâ uti etiam Aremorici in Galliis Manniae item Insulae incolae Hibernicâ unde tamen nemo est hominum qui velit sequi aut hanc Angliae Regibus quâ Hiberniae sive Domini sive Reges fuerint parere aut illos ex Cambro-Britannici principatû jure aliqâ— principibus suis subjacere Marc Claus lib. 2. cap. 19. the progress of Languages is a thing very well worth the observat on For by sundry discourses with several intelligent persons concern'd in the Languages and somewhat upon my own Observation I can make it out that if one of Base Brytany meets a Cornish-man that speaks the Cornish they with small difficulty will each understand the other the very Denomination of that Country being British for Armorica is derived from At Mor which hath no signification but from the Welsh and is upon or near the Sea with which the situation also agrees let a Cornish-man pass into Wales he will understand the Welsh and be understood of them A Welsh-man meeting with an Inhabitant of the Isle of Man that speaks the Manc-language both of them will understand one the others meaning An Inhabitant of this Isle a Menavian meets in Ireland among the Irish an agreeable Intelligence and the Irish with great facility communicate with the High-land Scots in their several Dialects intelligibly So that animadverting this Progression as I have linked them much may be inferred of Originals Customs and Manners among all of them having found the foot-steps of Gavel-kind by the Saxons deduced to the Normans and not altered by them Concerning which I have been larger before and in my next Chapter shew CHAP. XV. That in the Term Gavelkynd is not Partition Of free Socage and other Customs concerning Gavelkynd extra Cantium of the Antiquity of the Laws of Howel-dha THat in the Term viz. Gavel-kynd there is not any Partition is plain both by what Mr. S. apprehends of it thinking it to be derived from Rent and to signifie Genus Gabli vel redditus nor by what I have given in and exhited for my sentence that it signifies Tenura the â—enure per eminentiam of the Family or Genus Tenurae and so consequently may serve for an answer to one part of the question put by Mr. S. in his 42d. page where he saith Our next enquiry shall be whether Partition owe it self to Gavelkind either ex vi Termini or ratione rei and gives his opinion with me that ex vi Termini partition doth not owe it self to Gavel-kynd and in some considerable cases it is not enforced in the very use of it for in case a Father Dyes possessed or seised of such partible gavel-kynd-Gavel-kynd-land and leaves but one Son behind him this Land is not then to be parted which if it had been ex vi Termini it must have either ceased its use and force or else there must have been found out some other near Relations with whom the sole Heir had been constrained to a Partition the like whereof I could never read or hear was ever done This was very well understood by Littleton Lib. 3. Sect. 265. and explained by Sir Edward Coke in that Chapter of Parceners per le Custome for Sons saith Sir Edward are Parceners in respect of the Custom of the Fee or Inheritance and not in respect of their persons as Daughters and Sisters be c. And out of Bracton citeth this Et sunt participes quasi partem capientes c. ratione ipsius rei quae partibilis est non ratione personarum quae non sunt quasi unus haeres unum corpus sed diversi haeredes ubi tenementum partibile est inter plures cohaeredes petentes qui descendunt de eodem stipite semper solent dividi ab antiquo for such Lands belonging to a Family relate only to the Males in case of their existency but if not then to the Females So also we have it observed by Glanvil who denominates such as hold by this Tenure of Partition Liberi Sokemanni of whom he writeth quibus mortuis dividetur hereditas inter omnes filios si fuerit Socagium id antiquitùs divisum salvo tamen capitali messuagio primogenito pro dignitate Aesneciae suae ita tamen quod in aliis rebus satisfaciet aliis ad valentiam Si vero non fuerit antiquitùs divisum tunc primogenitus secundùm Quorundam consuetudinem totam haereditatem obtinebit secundùm autem quorundam consuetudinem postnatus filius heres est I shall not enforce any thing from the Custom of preference of Primogeniture to Socage Lands which were such as were non antiquitùs divisae and those to be but secundùm consuetudinem Quorundam which expression signifies a diminution both in respect of Age and Community nor of the Tenure which we call Burgh-English which whether brought in by the Saxons because of its name I cannot tell But concerning that which Glanvil setteth down as the most common Custom of the Kingdome and most antient as in his time it was received to be and the intent of his Paragraph which is to Counter-distinguish the Tenure of this partible Land from the Tenures of the Military fees where the eldest Son in England still Inherits of which sort there were not so many when William the Conquerour took his Survey of the Kingdome as after times did bring them unto when that no Land was permitted to be held free from the Military tenure not excepting the very Lands of the Church But he being so plain I shall not trouble you with a Comment and return to the subject of this Chapter which is that Partition ex vi Termini doth not owe it self to Gavelkind no rather Gavel-kind to Partition for I believe when at first this Partition was used and received into a common Custom those Users were enforced and obliged to find and invent a word by which their Custom might be intelligibly expressed rather than to make a Custom to the signification of the word but where the Custom of Dividing under the Title and Term of Gavel-kind was once received and setled with its appurtenances there it inferrs Partition and passeth as a common Law not only in Kent but in Christendome also To what Mr. S. saith by way of objection out of Bracton that he is express for a Partition ratione rei vel ratione Terrae if by it Relation
this in probability and policy may be to them and in particular to the most famous Plantation of Virginia the most fertil and most consonant to English bodies of any whatsoever and will â—ove of greatest use in time to the English Nation This kind of Partition Dr. Powel adds is very good to plant and settle any Nation in a large Country not Inhabited but in a populous Country already furnished with Inhabitants it is the very Decay of great Families and as I said before the cause of Strife and Debate The reading of this passage was it which many years since first set my thoughts at Enmity with the Saxon Parentage of Gavelkind I mean that of gip-eal-cynne give all Kyn This it was that gave me not only some examples of the use of it among the Welch but also an interpretation of half the name for I find the Doctor himself in these Additaments to this Welch History even in this passage I have made use of startled at the latter part of the Composition for he hath written Kind in small different Letters whereas Gavel is wrote in great But to return to the Pedegree by which you plainly perceive the use and the effects of this British Gavel and not only so but the partition as to descent also to the Legitimate Children for the Continuator of Lancarvan's History hath this note upon Owen Brogynton viz. his having such an Apportionment of his Father's Lands being a Bastard That base Sons were not basely esteemed but with the other had part of their Father's Inheritance and so had others through Wales especially if they were stout and of noble Courage I confess this passage did at first stumble me with some others of the like nature till seriously observing and comparing together the Laws of Howel-dha I had as to the British History a great deal of light administred which inforced me from my Incredulity to admire the Observer or Continuator I gather'd from this Law of Howel-dha Si villanus Regis filium vel optimatis ex licencia Regis alendum fusceperit filius ille particeps erit Haereditatis cum filiis Villani post mortem ejus That a Bastard may as probably receive a part in his Father's Estate by Law as that a Foster-child should have a right to a Division of his foster-Foster-father's Land But in these you see by what means the Prinoipality of Wales crumbled to nothing who gave as much opportunity to the Saxons and Normans by this division to Conquer them as by the like Fractions their Ancestors did give facility and occasion to the Romans But to return to our purpose This last division of Roderick the Great mentioned in our Discourse is said to be done According to the custom of Wales which being so then certainly Partition is according to the custom of Wales And this I further Collect that it was not altogether the Land which in former times was so much desired which I gather from that vast proportion of waste Land at this day in that Territory or was aequivalently considered with the Cattel and Stock wherewith that Land was to be managed for those Mulcts and Impositions of Fines and Amerciaments mentioned in the Laws of Howel-dha were very severe because then they were imposed and did proceed from such things as were their greatest Riches and was not only in Money but principally in Cattel of all sorts which was their Stocks and this leads me to examine whether and to shew that CHAP. 3. Neither the Romans nor the Saxons altered our antient Laws Of the antient honour and use of the Reguli Danelaege Merkenlaege and Westsaxonlaege what they were MR. S. saith p. 61. For my part I conceive it viz. Gavelkind may carry an Antiquity far greater than the time of the Norman Conquest c. If this be conceded I shall then go a little further with my Conceptions in this point and labour to make it probable that the Laws and Customs of the Britains were not altered at least so much as by the general current of Writters is commonly received by either the Conquests of the Romans or Saxons Not that I deny but that each of them made some sort of Impression upon them in relation to their Manners Laws and Customs though the main Body of them stood firm and unshaken and first for the Romans who in those times were much Diseased with that Itch of Conquest and too too great a desire of Glory by it being carried out sometimes to attempt divers great things upon the account of Fame that were even unprofitable yet was it not their Manner or Custom when they subdued any Country to alter the Customs or Laws thereof but rather to settle the Conquered upon a Foundation of enjoying their Liberties only being subject to the Title of Conquest so was it in Jury with the Jews to whom in Holy writ you find allowed many things according to their Customs both in permitting of the Ceremonies of their Religion and also in Judicial Affairs In the like manner dealt they with some of the Graecian Common-wealths The Roman Conqueror shewing to one of them a better Division of their Country in relation to the more orderly Existency of their Republick than ever they themselves had before taken notice of and not only so but told them being at that time assembled and expecting some severe Doom that if they would proceed in their antient way of Government they should have their Liberty provided they owned the Romans their Superiors in right of Conquest who only desired such a power over them by their Garrisons the burden and charge whereof should not be considerable to them that in case they Rebelled those they would keep as Doors and Inlets by which they would pour in such Forces as should reduce them to their peace But that such a Defection should be the occasion of the loss of their Freedome And after this manner was the common practice observed by the Romans in their Conquests But to return home I find not that either Caesar in his Commentaries Lucan or Tacitus mention or point out any Alteration in the Religion or in the Customs or so much as the Ceremonies of the Druids and though I must yield that from the Romans the Britains had most part of their Civility in the use of Habits manner of Warring Buildings Baths c. yet can I not Collect any innovation as to their Laws and can boldly affirm that in the midst of these Alterations as we had the Terms of Art and Appellations of things from them so again the Britains left some reliques of their Language among the Romans for what the Inhabitants of this Island had that to the Romans were reputed Rarities to them did they accept of British appellations smoothing them into their own Idiom The Britains at that time were famous for their Art in Contexture of Baskets being things very much by the Romans desired who hearing the Britains calling them in their Language
his Lord let the Lord seek by the award of his Court from three weeks to three weeks to find some distress upon the Tenements untill the fourth Court alwayes with witnesses and if within that time he can find no distress in that Tenement whereby he may have Justice of his Tenant then at the fourth Court let it be awarded that he shall take that Tenement into his hand in the name of a distress as if it were an Ox or a Cow and let him keep it a year and a day in his hand without manuring it within which term if the Tenant come and pay his arrearages and make reasonable amends for the withholding then let him have and enjoy his Tenement as his Ancestors and he before held it and if he do not come before the year and the day be past then let the Lord goe to the next County Court with his witnesses of his own Court and pronounce there this process to have further witnesses and by the award of his Court after the County Court holden he shall enter and manare in those Lands and Tenements as in his own and if the Tenant come afterwards and will re-have his Tenements and hold them as he aid before let him make agreement with the Lord according as it is antiently said Nighesith yeld and Nighesith geld i. e. Let him nine times pay and Nine times repay Hath he not since any thing given nor hath he not since any thing paid let him pay V. lib. for his errour before he become Tenant or Holder again See hereof 10 Hen. 3. Fitz. Cessavit 60. statute 10. Edw. 2. of Gavelet in London In the Collection of Statutes London 2. matter much tending to this purpose that by this word Gavelet the Lord shall have the Land for the Ceasing of the Tenant I have read much to this purpose in Mr. Lambards perambulation of Kent but the whole hereof relates to a Writ of Recovery for default or non-payment of Gafol or Gable or Rent the word Gavelet which is nothing but the let hindrance or with-holding of Gavel Gable or Rent which Writ runs in London as well as in Kent and all of it nothing to our Tenure in Question To the same purpose is that which Mr. S. urgeth in his 12th page where he gives a Learned exposition which serves for a fortification as well as an explanation upon the word Gafol which he describes varied in the Dialect Testament Saxonic being written gafol gavel gaful and gafel and shews how it passes in Matth. 17. Vers 24 2 and cap. 22. vers 17 19. to signifie Tribute which I think may prove an acceptation thereof naturally enough and in Matth. 25. vers 27. it serveth to express advantage or usury and in King Withreds Laws of Sr. Henry Spelmans Edition of his antient Councils it is expounded to us by what it is commonly received Redditus vel persio and Mr. Selden in his notes upon Eadmerus renders geÆ¿â—â—ic gaful to signifie Solitus census the wonted or usual Payment or Rent But Mr. S. concludes thus To be short saith he Gafol is a word which as Gablum in Domesdey book the skilfull in the Saxon tongue with Sir Henry Spelman else where turn by what Gabella is expounded abroad viz. vectigal portorium Tributum exactio census c. in Latine but in English with Verstegan Tribute Tax or Custome whereunto Mr. Lambard and Sir Edward Coke agree upon which and to all Mr. S. craves leave to add Rent which I shall not in any wise deny him provided as I said before he will be contented with that exposition to signifie Rent and not go about for the sound sake to impose it on the Tenure for in this I would begg an information or rather satisfaction whether Gavelkind-land may not be and is not held without Rent which if it be found to be as I know it is generally used in Urchenfield and perhaps in other places also then doth it destroy the very nature of the Etymologye But with this part upon the mistake of the word Gavel in those compounds mentioned I have spoken sufficiently and further I will not trouble the Readers patience about it In the next place here are CHAP. X. Several Deeds cited by Mr. S. that have their Tenenda's ad Gavilikendam examined and expounded I Am constrained to run over the Examination of several Deeds produced in Transcript by Mr. S. and having finished the Discourse of the word Single and in Composition I am come to experiment the Tryal of it in the Term proper with its affix of which Mr. S. saith pag. 38. Thus for example in a number of Deeds and Conveyances which I have seen recorded in the leiger-books of the Cathedral at Canterbury and St. Austins late Abbey there phrased all of them after this manner Tenendum ad or in Gavelikendam c. I presume he hath cited the principallest of them and if so then I assure you I am not stumbled at any of them and first Pag. 39. for that Deed of the Sons of Wibaldus who did grant Infirmis de Herbaldune unam acram dimidiam terrae scil Langenekre cum fratre suo Wiberto infirmo in perpetuam Eleemâ—synam and to Gavelkynd Reddendo sibi duos denarios c. Mr. S. rightly collects from the mold and cast of that Deed the binding of the Heirs in relation to their gift for these Sons of Wibaldus and their Sons and Heirs and their Daughters do all joyn in the alienation of this Acre and an half to Herbaldune Hospital I will not trouble my self about the Deed to Quarrel at their Scrivener who seldome found dimidiam written for dimidium or believe that he might in his intermixture of and to Gavel-kynd make an ignorant coherence we will grant it all right and straight and take along with us what Mr. S. saith pag. 51. that such an expression as Tenendum in or ad Gavel-kynd or the like was necessary to render the granted Land partible after the Custome of Gavelkind without the help of prescription requisite in partible Land else where out of Kent and hereupon referrs to the pleading of Burga the wife of Peter de Bending put down and published in the appendix to his book Script 5. But the first he would have to be a gift or grant in perpetuam but not in puram Eleemosynam there is no more than perpetuam which whether it be or not is nothing to our purpose but the Reddendum as well as the Tenendum in that Deed hath somewhat not familiar for it is said there Reddendo sibi duos denarios c. which Sibi hath relation to Wiberto infirmo the last immediately before mentioned rather than to any other in that Deed for all other persons therein comprehended are by doubles as Nos filios Wibaldi Herbwinum Eilwardum Heredes suos Thomam Paganum with this also Hoc concedunt filiae suae Basilia
properly called villein-services have been as they still are intermitted or rather quite ceased insomuch as all our Gavel-kynd-land in point of service now differs nothing from free Socage being such ubi fit servitium in denariis That there were changes out of Villenage Tenures into others more free and less servile is frequently to be found but by that to lay any force upon the in erpretation or Etymologye of the word or that upon the account of those citations brought in by Mr. S. it should signifie Genus gabli aut redditus because there was a tent fixed upon the change I cannot yield unto it To what he observes in his 59th page out of the Customal of Eastry Mannour in Kent of the changing Octo Cotarii pro Gavel-kende since that Gavel-kind in Kent is received as a Tenure far less servile than their ordinary Villenage this change I say was very considerable and did well deserve a sum of money in Gersum to the Lord for that these Cotarii before this change being by Tenure Villeins and so consequently their Lands not descendable to their Children their persons not scarce their own their acquisitions got by the sweat of their brows at the will of the Lord by this change these cotarii being invested into a propriety of this Land and this Land made to descend as in Gavelkind the mutation was very advantagious to the occupant But yet there appears somewhat further to me to confirm my affirmation and 't is thus to be considered Mutati sunt octo Cotarii Pro Gave-kende Medleferme tenet unum messuagium tres acras quae solent esse cotar modo reddit XL. den de Gablo These Cotarii had their Lands changed into Gavel-kend Medleferm tenet unum messuagium que solent esse Cotarii modo reddit XL. den de Gablo They are changed into the Tenure of Gavelkind and pay rent XL. den de Gablo this last notwithstanding the propinquity of sound cannot have any relation to Gavel-kende for then it had been a Tautologie but Gavel-kind and Gablum are set forth into different and distinct uses The Tenure was changed into Gavel-kind with the reservation of an annual Rent of XL. den de Gablo that is to say upon the account of that imposition made at the agreement by way of acknowledgement for creating this Land Gavel-kind-land The last hath relation to the rent reserved and the acknowledgement the other to the manner of holding in relation to the change and to the future descent So likewise is that other citation out of the Archbishops accompt-roll in the year 1230. where it is thus entred dâ— XIIIs. IVd. de fine Cotariorum ut Coteriae suae ponerentur adredditum that is to say that their Cotages may be fixed and certain in relation to their Gables or Reat for which they paid a fine whereas the first citation had relation both to Tenure and Rent I shall now take my progress northward and inform you that there is also as the remainder of the antient planters CHAP. XVII Gavel-kind in Scotland when the English tongue and the Customes were first planted in Scotland MR. S. in his 53d. page reports That the Tenure of Gavel-kynd in other Countreys besides Kent is a custome indeed but yet like to that in Scottish Socage Land to which he produceth as a Test. Skenaeus I find by Mr. S. that Gavel-kind shall be permitted in other Countreys to be like unto that in Wales like that in Ireland like to Scottish Socage-land rather than like to it self or to the same * Yet Mr. John Skene saith in his Chapter de linea recta descendentium thus Gif ony man deceasis leavis behind him maa Sons nor ane either he is Succomaanus haldis not his Lands be service of Ward and then his Heretage is divided amangst all his Sonns or he is miles la the quhilk case the eldest Sonne succeedis in the haâ— Lands quhilk heretably perteined to his father c. What the manner of the Scottish-Socageland is or hath been antiently in Scotland I am not certain but of this I am assured that there are sevcral Maâ—nours heretofore belonging to certain Bishops of Scotland where there is the same usage of partition of Lands as in Gavel-kind which shews that those Lands belonging in those antient times to the Church did not feel the severity of the War but enjoyed this Custome and Tenure from their most antient proprietors Which is also plainly to be perceived by the retention of this Tenure yet in force amongst the antient Britains of the Isles who by reason of their site were most free from the fury of the War I call them Brytains though now they are called High-landers because upon tryal of words and denominations of places I find that Language and the British so cohaerent as that there is not much difference between them to a serious observer as I have before treated consideration being had to such words as have suffered by the Saxon converse For this Island at its first plantation did certainly upon the increase of families who first setled in the Easternmost parts thereof remove their increase Westward and Northward till such time as by this means both Cornwall and the Orcades were also planted and then the Saxons in process of time inforced the Brytains to leave these their antient Seats in the Eastern parts of the Isle yet not all as I shewed before who retired by their force either into Cornwall Wales the Scottish Highlands or Base Britainy in France where they in their off-spring do occupye these places with Ireland also unto this day There lyes a large Island named Lewis belonging to the Earl of Seaforth between the Hebrides and the Orcadâ—s which wholy holds by this Tenure of partition by what name there called I could not understand for their Language there is Irish-British but if according to Mr. S. the name were Saxon in its original what hinders but that all Countreys where the Saxon Language is in use should have the knowledge of the word and upon this ground it is that I may with moroprobability è contra inferr that because it is not so universally known in those places where the Saxon tongue is spoken it administers more reason to believe and conceive it should have another origine than to be so easily lost among the very users of the Language and in no such place to be found as Mr. S. would have us believe but within the Septs of Kent The time of planting the Saxon Customes in Scotland is difficult to be known but if the planting the Language argues any probability of the planting of Customes then we had best make the time of the planting the Saxon tongue the matter of our enquiry thence being able probably to deduce that at that time the Customes were received for it was far otherwise in the Saxon settlement in Scotland than in England For here they planted and setled with the