in the Kentish Custumal And because this of Partition amongst the rest properly depends of Custome as thwarting the course of the Common Law in like case hence the Quaere grew at first whether Gavelkynd were a Custome or a Tenure Indeed a very improper and incongruous Quaere and occasioned by the want of that distinction of the Genus from the Species which through inadvertencie are here confounded Gavelkynd being the Genus Partition the Species So that if we shall but reddere singula singulis this doubt will quickly have an end Gavelkynd generally spoken of and in grosse is the Tenure particularly and with reference to this Partition it is a Custome accompanying the land of that Tenure Or if you rather will Gavelkynd is the Tenure Partition and the other properties the Nature Which Solution gives occasion of another Quaere and that indeed a main one Whether namely this Custome of Partition in Gavelkynd-land be so inherent in the land and so inseparable from it that notwithstanding the Tenure of the land be altered yet the land shall stâ—â—l retein this property No more I take it than the rest of the fellow-properties as much depending upon Custome as that and for which the land may deserve the name of Gavelkynd as well as for that and therefore some perhaps will say it shall retein them all indifferently I shall not here ingage as an opponent onely invited by this fair occasion crave leave to propound Academically what in like case I find delivered by others conducing in my judgement to facilitate the resolution leaving it to such as have more will to debate and better skill to decide the question than my self to give a fuller and more peremptory resolution in the point I may I take it not improperly state the question thus Whether the person in this case shall follow the condition of the land or on the contrary the land that of the person The former it seems takes place in Paris the French Metropolis by the custome of the place whence that of Choppinus treating of those Customes pag. 316. Parisiensi iâ—â—em municâ—piâ— saith he quod gentilitiâ pariter sulget Nobilitate clarorum virorum usus familiae herciscundae minus est obnoxius invidiae Ubi scilicet non persunarum sed fundorum conditio nobilis plebeiave partes assignat To which he adds a little after Hâ—â—d ideâ— tamen dividundarum haereditatum ratiâ— immutata est Parisiis cum nobiles fundos plebeii nobiliter ignobiles aequojure generosi invitem partiantur To the same purpose our Authour elswhere â—els us that priseo quodem Gâ—llici fori usu plebeius fundus haud ideo pristinam exuebat conditionem quòd à recto ipsius Domino aere comparatus esset Ni ejus nomine comparator in clientelam se unà cum superiore fundo suo ad patronum contulisset which his margin elswhere records thus Anciennement les rotures aâ—quises par le scigneur direct se partageoient returierement si non que le dit acquereur les comprint en l'adveu de son fief le rendant au superieur Thus went it seems the more ancient Custome in those parts But tempora mutantur The case of latter times is altered there as the same Authour gives us to understand in both the last fore cited places At postâ—rioris aevi Jurisprudentia mutatis calculis novam invexit servientis fundi unionem tacitam consolidationem cum altero dominante ac parem adeo utriusque qualitatem praenobilem Ni si illius emptor subinde contestationem interposuisset contrariae voluntatis Thus in the former place In the latter thus Nostrae tamen aetatis moribus diversum obtinuit censuales nempe obnoxios agros solâ per rectum Dominum acquisitione prorsus uniri in unúmque redigi cum praedio dominante nisi protinus emptor contrariae voluntatis testationem interposuisset The effect of both is this that Censual lands by purchase coming unto the direct Lord the Lord of the Fee or Over Lord aâ—e ipso jure Feudal and shall accordingly descend as thereby re-united to the Fee unlesse the buyer at the time of purchase do protest to the contrary Will you please to hear his reasons Unionis nempe vis illa eò producitur ut ignobile praedium militari junctum nobilitetur eque plebeio as soâ—â— vectigalibus obnoxio transeat in feudâ—lis clientelae sortem liberiorem Thus he De moribus Parisior pag. 58. Much what one with that in the other place De Domanio Franciae pag. 41. Quoniam tacita praediorum unione confusa erant jura servitutum census solarii vectigalis Cum rei propriae nulla superforet servitus exâ—ndéque vectigalis sundi qualitas esset immutata Thus he whom see also if you please De Domanio Gallicâ— pag. 168. num 2. Also pag. 284. num 1. To whom add Hotoman De Feudis lib 1. tit 5. parag 2. in fine You see by this how the present case stands in some parts abroad Here at home as it seems by the very Custumal of Kent in two several cases therein specified the descent of gavelkynd-Gavelkynd-land is changeable and the land becomes unpartible first namely when by escheat happening either by Death or Cessavit next when by the tenants voluntary surrender it comes into his Lords hands who holds by Fee of Haubert or by Grand Sergeanty both which Mr. Lambard takes to be Knight-service To which may be added two other cases which occur in an ancient Kentish Eire in the Exchequer ann 29. Edw. 1. where enquiry being made and the question propounded to the Kentish men how many ways Gavelkynd-land might be altered and delivered from the ordinary and custumary descent answer was given by four instancing in the two former and to them adding those other two namely 1 Per licentiam Regis by the Kings licence and 2. Per chartam Archiepiscopi by the Archbishops Charter Against this and on the other side inter alia may be opposed what is pleaded in the fore-remembred controversie between Burgade Bendings and the Prior and Covent of Christchurch Canterbury wherein the Prior in barr of Burga's claim to the moyety of his and the Monks manour in Franc bank pleads Quod Dominus Rex qui manerium illud deait praedecessoribus suis non tenuit illud nomine Gavelkinde Whence admitting the plea for Law naturally seemeth to result this double consectary 1. That the King may hold land in Gavelkynd 2. That the King holding land in Gavelkynd in case he shall grant it away to any religious house in puram perpetuam eleêmosynam in Frankalmoigne it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the religious men shall infeoffe with it Much more doubtlesse might be said in the point as well pro as contra but I shall leave it to be further argued by Lawyers adding onely in a word what upon the whole
a retrograde course in this re-search I shall begin with one of the latest Sir Edward Coke who in his Notes or Illustrations upon Littleton tit Villenage Sect. 210. verb. en Gavelkinde glosseth the text thus Gave all kynd for saith he this Custome giveth to all the sons alike Not long before him another learned Knight and famous Antiquary taking the word to expound in his Glossary of antiquated words saith that it is termed Gavelkynd either Quasi debitum vel tributum soboli pueris generi i. e. as it were of right belonging and given intimated in the two first syllables 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the issue children or kynd signified by the last 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or else secondly saith he from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. given to all the next in kindred Verstegan to ascend in our gâ—adation one step higher câ—nsureth the word of corruption saying that it is corruptly termed Gavelkynd for Give all kynd which after him is as much to say as Give each child his part From whom Mr. Cambden differs as little in time as in opinion when he saith it is called Gavelkynd that is saith he give all kynne Before all these Mr. Lambard the first that undertook the etymologie and whom beside the former Judge Dodderidge Dr. Cowell the Authour of the New Terms of Law and many more longo agmine aâ—e known to follow in his explication of Saxon words prefixed to his Archaion verb. Terra ex scripto is clear for the derivation of the word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Credo saith he ut terra illa Gavelkyn quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 idest omnibus cognatione proximis data dicatur But afterwards as if upon second thoughts altered in his opinion he coupleth this derivation with a second and so at length is found to share his opinion of the words original between two conjectures grounded both upon the nature of the land the one in point of Descent the other of Rent and Services In reference to the former of which he saith that Therefore the land was called either Gavelkyn in meaning give all kyn because it was given to all the next in one line of kinred or give all kynd that is to all the male children for kind saith he in Dutch signifieth yet a male child And in relation to the latter he saith that It is well known that as Knights-Service land required the presence of the Tenant in warfare and battell abroad so this land being of Socage tenure commanded his attendance at the plough and other the Lords affairs of husbandry at home the one by manhood defending the Lords life and person the other by industry maintaining with rent corn and victual his estate and family This rent as there he adds ni a customary payment of works the Saxons called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and thereof as I think they named the land that yeeldod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to say Land letten for rent or of the kind to yeild rent c. The Authour I confesse modestly leaves it free to the Reader to receive either of these conjectures or to refuse both as it shall best like him but the former of the two being primâ facie of a more plausible sound and allusion than the other an advantage very considerable with most men whose guidance notwithstanding is not alwayes to be followed and that having gotten the start of her fellow in time hath not fail'd to keep it ever since having proved the more acceptable of the twain and by this time found so many followers and those like the first Authour of so great credit as that whosoever shall contradict the one or dispute the other can do neither without exceeding prejudice so difficult a lesson it is with some to unlearn whose minds are as hardly weaned from an opinion which their fancie hath once approved as others are from an habit or a custome which if inveterate and long setled though corrupt and vicious is very hardly left off and laid aside Yet as the Common Law determines of a Custome that if the rise the original thereof can so be traced as it can appear that it first began within time of memory it is no Custome nor shall obtain or prevail as a Custome so in case by tracing the present derivation to the well-head I shall shew together with the time the errour of its first original not to be salv'd by long tract of time for Quod ab initio non valuit tractu temporis non convalescit I trust I shall not fail nor fall short of what mine endeavours drive at in this matter the weaning I mean of sober and judicious minds from an opinion so erroneous and ungrounded as this I doubt not upon trial shall appear to be though thus long continued and in it self specious and plausible enough However being convinced in mine own judgement of the errour that I may not seem to swallow it for company to the prejudice of truth for that I say if for no other reason I have resolved to protest against it and yet not to seem singularly affected without a cause I shall not do it by a bare denial or dissent as he that thought it sufficient for Bellarmines confutation to give him the lie but by representing withall my inducements thereunto I hope to put the matter out of doubt that I have studied the Readers satisfaction herein as well â—s my own by a learned mans example whoâ—e words in a like case as very apposite in this I shall here borrow for the close of my Apologie Etsi mâ— non lateat saith he quà m lubrica plenaque discrimâ—nis res sit quae per tot secula tot homines eruditi uno consensâ— probaâ—unt rejicere velle rationes tamen eas in medium adducere visum est quibus adductis hanc interpretationem damnare ausus sum Nor is this I take it magno conatu nugas agere the discovery and refutation of popular errours having been a task for many worthy pens in cases of as small concerment as this perhaps may seem to be To the matter then Whether the name of Gavelkynd was at first imposed with or in respect to the nature of the land in point of descent or not is indeed the matter in question The common opinion I confesse affirms it wherewith joyning issue in the negative I shall endeavour to refute it by a double proposition one negative shewing that this is a wrong and mistaken the other positive or affirmative declaring what is the right and genuine construction of the term As for the former though it carry with it a seeming allusion to Gavelkynd in sound yet if we look advisedly into the true nature of it we may and peradventure must conclude the etymologie from Giveall cyn Give-all-kynd
Frank Fee then being opposed to Ancient Demesne which is Socage cannot it self be Socage Nor will Bractons distinction of Socage into liberum and villanum applied to that difference in Mr. Lambard of free and base Socage by which the one should consist of money and the other of base services be warranted as himself there observes from the ensuing Inquisition some lands being therein denoted to be of Gavelkynd-nature which neverthelesse do yeild none other but money alone and none there of that nature charged with works besides that of Suit of Court improperly called Works as not coming under the notion either of Manuopera or Carropera to which double head all works of this kind are wont to be referred Hence let none perswade themselves that Gavelkynd-land was not or by its nature is not liable to Works for albeit that 66. of King Ina's Laws in the Archaion seemeth to counter-distinguish Gafâ—l and Wâ—rk and though moreover Gafolland and Werkland occurr in some manours out of Kent as of a distinct and different nature yet both servile and opposed to what there is called terra libera denoting I suppose Free Socage yet most certain it is that both Gablum and Opera do often meet and are found in gavelkynd-Gavelkynd-land Witnesse the old Custumal of Monkton manour in Thanet belonging to the Church of Canterbury mentioning the particulars of what servile works the Tenants there stood charged with for the 18 Swolings so many plough-lands I take it holden of the Monks in Gavelkynd Witnesse also this passage in King Johns Charter made to Hubert the Archbishop for the changing Gavelkynd-land into Knights-Fee at large exemplified by Mr. Lambard Peramb pag. 531. Xenia Averagia alia opera quae fiebant de terris iisdem convertantur in redditum denariorum aequivalentur Witnesse in the third and last place not to multiply instances in a case so cleer an Inquisition found after the death of Isabella de monte alto widow sometime of Orpington recorded in a Lieger of that Cathedral whereof expect a copy in the Appendix Scriptura 10. 'T is true indeed at this day and time out of mind haply from Richard the seconds time such servile works properly called Villein-services have been as they still are intermitted or rather quite ceased insomuch as all our gavelkynd-Gavelkynd-land in point of service now differs nothing from Free Socage as it stands described and defined of Bracton being such ubi fit servitium in denariis to use his own words all the Tenants burthen his whole service being onely servitium crumenae pecuniary such as payment of money for rent suit of Court and such like nay in many grants of land in Gavelkynd that I have seen I find no tie at all upon the Tenant no covenant or contract between his Lord and him to require of him any such base services there being ut communiter and regularly a reservation onely of rent in money suit to his Court or the like yet I must tell you as a reason hereof in my judgement that though Gavelkynd in the genuine sence sound land letten for gable cens or rent consisting chiefly in denariis whence in an old Custumal of Eastry manour in Kent I read In eodem manerio mutati sunt octo Cotarii pro Gavelkende Medlefâ—rm tenet unum messuagium tres acras quae solent esse Cotar modo reddit xl d. de gablo and so divers more which haply will be better understood if I add what occurrs in an old Accompt-roll of the Archbishops manours for the year 1230. in Charing Bailives receipt Et de xiij s. iiij d. de fine Cotariorum ut Coteriae suae ponerentur ad redditum yet commonly upon such grants in Gavelkynd the Tenant pareâ—d with such a sum of money to his Lord in gersumam i. e. in consideration of that grant and by way of Fine as may seem equivalent to the base services otherwise imposeable and to have been charged upon that land and upon the Tenant in respect thereof or if not probably as in Gavelkynd-land by vertue of King Johns fore-mentioned Charter turned into Knights-fee he had his rent inhanced and augmented to an equivalent value of his services to be redeemed the cause in chief of the excuse of Gavelkynd-men from base services of latter times and at this day being I conceive no other than the Tenants buying them out and consequently the change of the same as Littleton hath it of Socage in general into money by the mutual consent of Lord and Tenant whereof expect some examples to be presented in the Appendix Scriptur 11 and 12. In the mean time have here an instance or two taken from some old Accompt-rolls of the Archbishops manours of this and that summe paid received for enfranchising the land from customes and services and changing it into Knights-fee whereof in the last-remembred Accompt-roll and in the receipt of Ceâ—ring now called Charing manour there Et de ij s. ix d. ob de incremento redditus Thomae de Bernfeuld de termino Sancti Johannis ut terra sua de caetero sit libera de consuetudinibus per feodum militis Et de xiiij d. quad de incremento redditus Thomae de Bending ut terra sua sit libera per feodum militis de termino S. Johannis And so some others there as also in Maidstone and other Archiepiscopal manours and such may well be reckoned among lands of that sort which in a copy of the book of Aid cited by Mr Lambard are noted to be holden in Knights-service per novam licentiam Archiepiscopi But to return to our Gavelkynd which if not extensive to Free Socage they may seem to stand in need at this day of some other character to keep them unconfounded than Bracton in the definition and description of the latter doth propose in regard the service of both equally consisteth in money To recapitulate now what hath been delivered concerning partition in Kentish Gavelkynd-land It is as hath been shewed neither from the name nor from the nature of the land alone nor from prescription nor yet from any particular custome that this property there proceedeth but partly from the nature of the land and partly from custome not I say a particular one but a general custome extended throughout the whole County in censual land or land letten for Cens or what is all one with it Gavel or Gafol to say holden in Fâ—ef or Inheritance Roturier as called in Normandy and other parts of France the Antiquity whereof and how beginning in Kent and why more general there than elswhere shall be the argument of our next Discourse PROPOSITION III. The Antiquity of Gavelkynd-custome in point especially of Partition and why more general in Kent than elswhere MAster Lambard inclines in his opinion to conceive this custome brought hither out of Normandy by Odo Earl of Kent and bastard brother to King William the Conquerour and that we
is turned haereditas Si quis Tainus in haereditate sua terram it should be Ecclesiam habeat c. in another like old version in the book of Rochester called Textus Roffensis is rendred Allodium Si liberalis homo quem Angli Thegen vocant habet in Alodio suo Ecclesiam c. By Allodium also is turned in the same Record Textus Roffensis what occurrs in the Saxon fragment exhibited by Mr. Lambard Perambulat in Mepham pag. 500. under the term of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Et si villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio Alodio c. Allodium it seems thence being properly such land as is fully a mans own Shortly then Feudum Fee or land holden in Fee is no more considered in its first and primary acception to which they must have regard that will hope to judge aright of the ground for the first imposition of the name than what was holden in Fee-hode by contraction Feud or Feod i. e in a stipendiary conditional mercenary mediate way and nature and with the acknowledgement of a superiour Lord and a condition of returning him some service for it upon the withdrawing whereof the land was revertible unto the Lord in which respect as the grant thereof is improperly called a Donation being but Feodalis dimissio i. e. a Demise in Fee so the Deed or Conveyance by which it was demised is as improperly termed a Charter of Donation being no more than a Charter or Deed of Feoffment Such I say is Feudum Allodium is contrarywise what is holden in All-hode in totality in a totall full absolute immediate manner and condition without acknowledgement of any superiour Lord and free from any tie or compact for the returning any service at all for it unto any Thus far and I hope not too far nor impertinently for cleering the etymon of Feudum and Allodium as the argument so the torture of many learned pens amongst whose derivations of one and t'other I humbly crave this of mine such as it is may be admitted for future Indagatours and all others of unforestalled judgements freely to consider of And now to spin on our former thred and to reassume our argument of the Introduction of our Fees or Tenures by the Conquerour which that etymon coming in the way caused me a while to set aside I here professe to concurr with them who upon the question put resolve it in the affirmative whereof our learned Glossarist for one thus Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior Conquestor nuncupatus c. and a little after Deinceps vero resonarunt omnia feodorum gravaminibus Saxonum aevâ— ne auditis quidem no other Tenures or in the Scottish expression Haldings of land being formerly here in use but these two Bocland and Folcland The one saith my Authour a possession by writing the other without That by writing so he adds was a freehold and by charter hereditary with all immunities and for the free and nobler sort That without writing was to hold at the will of the Lord bound to rents and services and was for the rurall people It may be added that the former took name from the lands booking or entring with the limits of it in a Codicil as then called a little book or as we since call it a Charter which if the land were given to a Lay-man was in way of Seizin delivered to the party that was to have the land hence haply that ceremony we retain of delivering a Conveyance as the parties Act and Deed or if to a Monastery laid and left most commonly upon the Altar Ego autem licentiâ consensu illius testimonioque Episcoporum Optimatum suorum omnes terras meas libros terrarum propria manu mea posui super altare Christi in Dorobernia c. as it is in the close of a Memorial of the gift of Monkton and other manours to the Church of Canterbury in the year 961 by Queen Edive or Edith whose picture in thankful remembrance was until of late reserved in that Churches Treasury Hence was such a Charter vulgarly known in those times by the name of a Landboc in the Latine of the times Telligraphum sometime Codicillus and the like Observe yet further terram haereditario jure conscribere liberam proclamare the Latine phrase for creating Bocland was a prerogative royal or a Royalty and out of the power of any Subject whence that passage often occurring in Subjects grants of lands in perpetuity to the forenamed Cathedral and other places viz. and such a one King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. haereditario jure conscripsit as also that liberam omninò proclamavit and such like King Ethelreds priviledge as called confirming to that Cathedral amongst other things their whole possessions is hence by one of the Subscribents called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But notwithstanding this Enfranchisement the land was very seldome alienated by the possessour in Frankalmoigne without what the Law of Mortmaine afterward required a concurrent or at least a subsequent confirmation from the King whereof examples are obvious in the List of that Churches lands and benefactours published in the Antiquities of Canterbury pag. 210. as also of the concurrence of the Magnates or Nobles in such Bocland-grants principally in that of Mallings You shall have the very words because remaâ—kable Anno Domini DCCCxxxviij Ecgbertus Athelwlfus Rex filius ejus dederunt Ecclesiae Christi in Dorobernia Mallings in Suthsexan quod viz. manerium prius eidem Ecclesiae dedit Baldredus Rex sed quia mark this non fuit de consensu magnatum regni donum id non potuit valere Et ideo c. Bocland thus flowing originally from the Crown upon all forfeictures and particularly that of the estate of the possessour for deserting the warrs as if there were no mean between the King and him the King alone was to take the forfeict But of Bocland more anon Some other kinds of land 't is true there were in those dayes but all I take it reducible to the precedent Diehotomy such as 1 Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as it is in the truce or agreement between Alfred and Guthrun KK in the Archaion cap. 2. 2 Neatland 3 Inland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so runs the first chapter of King Edgars Laws there 4 Utland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we have it in the will of Byrhtric in our Kentish Perambulation pag. 495. Of which four the two former I conceive were but the same with Folcland both one and t'other importing land letten or demised as Folâ—land was to rural people more Emphitâ—utico for profit the one from Gable or Gafol i. â— Cens or Rent being termed Gafolland the other called Neatland either from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to improve fructifie whence 〈◊〉
〈◊〉 〈◊〉 〈◊〉 〈◊〉 for a Foenerator a Usurer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 profit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 profitable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unprofitable unthrifty or else which I rather think from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Villanus Colonus as the old Version of the 19th 21th of K. Ina's Laws renders the word which comes all to one with Ceorliscus spoken of in that second Chapter of the Foedus Aluredi Guthruni Regum and there described by his quality to be oâ—e that occupieth Gafolland As for the remaining two Inland Utland the former was terra dominicalis land holden in Demesne in the owners own hands and for the most part designed in mensam Domini whence otherwise stilâ—d in succeeding times Bord-land like the Civilians and Canonists bona ad mensâ—m and in this respect may not unfitly be referred to Bocland regularly of like property The latter contrariwise like Gafolland and Neatland was land letten out and in opposition to Demesne land termed in servitio or tenementâ—lis that is granted out in service by the Lord to his Tenants to be holden of himself and so we may parallel it as with Gafolland and Neatland so with Folcland being of the same nature like the Frenchmans Fief sâ—rvant i. terra serviens in respect whereof the Tenants were bound to be Retainers Attendants and Followers to their Lords Suiâ—ors to their Courts and were thence called in the term of Hen. 1. Laws taken up afterwards of Bracton Folgarii concerning which see further in Sir Hen. Spelmans Glossary verb. Folgare Folgarii as also in the Laws of King Knute par 2. cap. 19. Besides these sorts of land after ages since the Conquest produced many other such as Work-land Cot-land Aver-land Drof-land Swilling-land Molland Ber-land Smiths-land Ware land Terra Susanna For-land Bord-land and such like Of each of which for some satisfaction to the inquisitive in a word or two The first Work-land is land of a servile nature and condition terra servilis as I find it called as also what indeed the word soundeth terra operaria because haply at the creation of the manour and distribution of it into parcels charged with servile works such as plowing and harrowing the Lords aâ—able ground mowing tassing and carrying in his hay sowing weeding reaping and inning his corn making and mending his fences thatching his barns and such like charged I say with servile works and not with Cens or Rent or if also with rent yet of the twain more especially with works and therefore contradistinct and opposite to Gavelland which was land liable to Cens or Rent or if also to works yet chiefly to rent both one and t'other being denominated from what was the more eminent service arising from them Hereof some footsteps visible in the 66. of King Ina's Laws The second cot-Cot-land that belonging unto and occupied cot- by the Cotarii Cotsetâ— or Cotmanni a sort of base Tenants so called from certain Cotes or Cottages small sheds like sheep-cotes with some little modicum or parcel of land adjoyning originally assigned out unto them in respect and recompence of their undergoing such like servile works or baser services for their Lords as before expressed The third Aver-land much the same with that before called Work-land coming of the French Ouvrer to work or labour but chiefly differing from that in this particular that the services thereof consisted especially in carriages as of the Lords corn into the Barn to Markets Fairs and elswhere or of his domestick utensils or houshold-provision from one place to another which service was of diverse kinds sometimes by horse thence called Horse-average otherwhile by foot thence termed Foot-average one while within the precinct of the manour thence named In-average another while without and then called Out-average the Tenant in the mean while being known by the name of Avermannus The fourth Drof-land that holden by the service of driving as well of Distresses taken for the Lords use as of the Lords cattel from place to place as to and from Markets Fairs and the like more particularly here in Kent of driving the Lords hogs or swine to and from the Weald of Kent and the Denns there thence called of old Drofdens namely from the droves of hogs sent thither and there fed and fatted with mast or pawnage the Driver whereof was vulgarly called Drofmannâ—u The fifth Swilling-land that let out or occupied by Swillings Swollings or Sullings that is Plough-lands coming of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Plough in which notion the word may extend to all arable land the quantity whereof was various and uncertain conteining more or lesse according to the nature of the land a Plough being able to master a greater or lesser quantity thereafter as it is in quality This of Swillings I find to be a word proper to the Kentish even from the Conquerours time to look no higher whose Survey commonly called Domesday-book shews Suling and the like to have been a term in those dayes peculiar to this County whereby to expresse the quantity of their land whilest Hide and the like was of like use elswhere To this head may be referred Hide-land Yoke-land Aker-land Rod-land and the like being quantities or portions of land let out and occupied by the Hide Yoke Aker Rod c. and denominated accordingly The sixth mol-Mol-land was the same with Up-land mol- of the Saxons called Dunland standing in opposition to meadow-Meadow-land Mershland or low-Low-land the Tenant whereof was wont to be called Molmannus the word as I conceive being derivable from the Latine Moles a heap of which see further in the Surveyours Dialogue Hence probably the name of that place in Ash the seat and patrimony aâ— this day and from good antiquity of the Harflets formerly of the Septvans families both in their time adoâ—ned with Knight-hood called Molland being of an advantagious situation for the overlooking of a large level of a rich Mershland The seventh ber-Ber-land that which was held by the ber- service of bearing or carrying the Lords or his Stewards provisions of victual or the like in their remove from place to place such Tenant being thence called â—ermâ—nnus The eighth smiths-Smiths-land that in respect whereof smiths- the Tenant was bound as to undergo the Smiths or Farriers office and work in and about shooing his Lords horses and carriages so also to find and furnish him with materials of iron for that purpose The ninth Ware-land the same that otherwise called in the Latine of the times Terra warectata or Terrajacens ad warectam that is land lying or suffered to lie â—allow coming from the French Garé their g here as in many other words being turned into our w whence with them Terre garée for old fallow-ground The tenth Terra susanna land not much unlike unto if not the same with the former being superannated land or land with over much tillage
found that Socage-service was not so to be restrained it being ordinary with Tenants in Socage to do service extra or foris Socam as to ride with their Lord from manour to manour like the Rod-Knights in Bracton to carry and pay rent to the Lord and to deliver him corn and other provisions at his Granary or elswhere out of the Tenants proper Soke and the like in which respect also with what incongruity are pure Villeins called Sokemen since they are so far from being tied to the Soke that they may be commanded out and imployed abroad wheresoever the Lord shall please as well without as within the Soke Changing therefore my opinion as to that derivation and looking further back to that other the former sence of Soke a Liberty Priviledge Immunity Franchise c. I resolved finally to derive and fetch it thence and thus I make it good Amongst other sorts of land our books are full of that called Terra servilis Villein-land land holden in Villenage servile land such namely for fuller explanation of it as that holden at the Lords will both for time and services in both respects uncertainly for time it being in the Lords power of old at least it was so tempestivè or intempestivè to revoke and resume the same out of the Villeins hands into his own and for services the tenant being altogether ignorant and not knowing over night what service may be required of him the next morning He might also have greater or lesser taxations laid upon him at his Lords will nor might he marry his daughter without a Fine to his Lord for his leave and licence ita semper tenebitur ad incerta saith my Authour Now to defend land against the Lord from Villenage and to come off acquitted of this servitude and servile condition it was and is necessary of the tenants part to shew a tenure of his land by opposite and contrary services to those in Villenage that is per certa servitia by certain expresse definite services and as otherwise it may be concluded that his tenure is Villenage so hereby if the service be not Regal or Military it is as cleerly Socage For that certa servitia are a Supersedeas to Villenage and do make it to become Socage proofs are obvious To this purpose consult we Bracton lib. 2. cap. 16. num 9. as also â—od cap. num 6. where he is expresse for the tenants acquital from all other services some being expressed in the Charter made him by his Lord than what are specified therein Alia omnia servitia consuetudines quae expressa non sunt tacitè videntur esse remissa and satis acquietat ex quo specialiter non onerat See him again cod lib. cap. 36. num 8. at these words Cum teneatur Sockmannus defendere tenementum sâ—um erga Dominum suum per cerium redditum in pecunia numerata vel per quid tale quod tantundem valeat quae consistunt in pondere numero vel mensura in solido vel in liquido sicut frumento vino oleo secundùm quod redditus diversimode accipiuntur c. Have recourse also to the same Authour lib. 4. tract 1 cap. 23. num 5. at these words Dum tamen servitia certa sunt si autem incerta fuerint qualecunque fuerit tenementum tunc erit Villenagium c. Add as agreeable hereunto that of Sir Edw. Coke in his Commentary upon Littleton Sect. 120. To Tenure in Socage saith he câ—rta servitia do ever belong Hence it is that the Authour of the Terms of Law expounding Socage or tenure in Socage much after the same manner with Bracton ubi supra to wit lib. 2. cap. 1â— num 9. saith that to hold in Socage is to hold of any Lord lands or tenements yeilding to him a certain rent by the year for all manner of services You see it proved then that certa servitia certain services so they be not military make a Socage tenure The ground whereof is obvious viz. that by such tenure per certâ— servitia the tenant hath a Soke a priviledge an immunity a Quietus est as from Villenage in general so from all villein military or other services than those by contract or custome charged upon him a Soke I say whereunto â—gium being added signifying the service or duty to be returned for that priviledge it comes forth Socagium in Latine Socage in English as by putting man to Soke the Tenant is signified and called Sokeman But if Soke here carry with it such a sence of Immunity Discharge Priviledge c. how comes it then to passe may some perchance demand that liberum is often found to accompany Socagium as liber also doth Socmannus For answer I conceive to distinguish Free Socage from Base Not but that Base Socage had its priviledge as well as the other as being holden by services set and certain or determinate but in regard those services regularly consisted in servile works incident to Villenage the tenure gat the name of Villanum Socagium to distinguish it from Liberum Socagium acquitted of those servile works and consisting in denariis From hence also such a Soke such a Priviledge it is that the Villanum Socagium in the Kings Demesne is turned of Bracton and others by Villenagium privilegiatum By the way hence judge whether I am not right in my derivation of Socage from Soc Soke c. a Priviledge c. when here you see Villanum Socagium of Bracton and others rendred by Villenagium privilegiatum i. e. priviledged Villenage 'T is time now that we inquire how this derivation will suit with those before remembred tenures By divine service in Frankalmoigne Fee-Ferme Petite Sergeanty Escuage certain Burgage and the like Whereto I answer Very well For as they were all through a tacite discharge from corporal service in warfare excused from military Fee or Tenure so on the other side by reason of an expresse tenure per certa servitia or per certum redditum common to them all but Frankalmoigne they were rendred quit and free of Villenage and consequently became of Socage tenure As for Frankalmoigne as it may challenge an interest in the composition of Socage from Soc or Soke and agium to wit in the former syllable so on the contrary side hath it as little to do with the latter because such tenure is quit of all service whatsoever as well spiritual unlesse uncertain as temporal But because as it hath not to do with military service on the one hand so neither with Villenage on the other and hath its priviledge expressed in that epithete of Libera it is referred to Socage as in some sort such This then is that this tenure per certa servitia that makes tenure By divine service of no relation to the plough to become Socage This makes also Fee-ferme a meer censual service much in the nature of that which among
matter I conceive of the case I would ask then if our Kentish Gavelkynd-land be partible quatenus Gavelkynd I expect no other than an affirmative answer If so and admitting withall that such property in Gavelkynd-land owes it self to a custome accompanying land of that nature yet I suppose it shall enjoy that property no longer than the land it self continues to be Gavelkynd which some hold it is not being once returned and come back again into the Lords hands the King especially being Lord that granted it out in Gavelkynd or of whom it formerly held in Gavelkynd because then as cessante causâ sollitur effectus so by reason of the unity of possession the Usu fructus I cannot well English it being consolidated and made one with the property that property of being censual land which Gavelkynd denotes and which cannot be intended of any land holden in Demesne and not in service ceaseth and is quite extinguished there being required to make the land censual a censual Tenant one that holdeth by censual services such as here is none especially in the Kings case when once the land is come home again reduced to its first principles and re-united to what like Fief is opposed to service-service-land the Lords In-land or Demesne-land as in the case of a common Lord or to the Crown à quo omnia feudamoventur â—riuntur the Fountain whence all Tenures are derived as in the Kings case from whence by the letting it out in Gavelkynd it was formerly severed To this purpose see Petri Gregorii Tholosani Syntag. Jur. univers lib. 6. cap. 5. num 11. But of this also hitherto for I hasten to an end PROPOSITION V. Whether before the Statute of Wills 32. and 34. H. 8. Gavelkynd-land in Kent were deviseable or not IN answer whereof holding with those which resolve it in the negative howbeit for my part not studio partium but veritatis amore I shall oppose to such as hold the contrary what arguments are brought against them and their opinion in a case of Mr. Halls of Kent verbatim as I find them published in print which here follow with their title Reasons and authorities to prove that Gavelkind-lands in Kent are not nor were anciently deviseable by Custome FIrst it is a rule in Law that an Assise of Mortdancester doth not lie of lands which are deviseable by Testament c. and this appears by divers books as namely 4. Edw. 2. Mortdanc 39. 22. Assiz 78. and Fitz. Nat. Brevium 196. 1. But it appears by Bracton fol. 276. b. that an Assize of Mortdancester will lie of Gavelkind lands in Kent and so it appears by divers ancient Records quod vide in Itinere Johannis de Berewicke c. Anno 21. Edw. 1. Copia fol. 1 7 22 24. in Itinere H. de Stanton Anno 6. Edw. 2. Copia fol. 1 8 9 10 13. By which it appears plainly that an Assize of Mortdancester lies of Gavelkind lands in Kent But an Assise of Mortdancester doth not lie of lands within the city of Canterbury because lands are there deviseable by Custome as it appears in dicto Itinere H. de Stanton fol. 3 4 6. And it is evident that in the city of Canterbury which was anciently part of the county of Kent there was a special custome used to devise lands lying within the liberties of the city and to prove their wils in the Court of Burgmote in the same city But there needed no such Custome if all the Gavelkind lands in Kent had been deviseable c. Also the most part of the ancient Wills of Gavelkind lands in Kent before the Statute of Uses did mention Feoffees of the lands devised c. as appears by the Register-books of Wills at Canterbury and at Rochester whereby it doth appear that the Devisors were Cestâ—y que uses and not owners of the land devised and although some wills of land make no mention of Feoffees yet there were Feoffees of the same land as will appear by the deeds of Feoffment thereof and twenty to one do mention Feoffees c. Also Sir John Fineux chief Justice de R. B. Sir Robert Read chief Justice de C. B. and Sir John Butler Justice c. devise their lands in Kent before the Statute of Uses and make mention of Feoffees c. which had there been a Custome to devise no question they had taken of it c. Also many ancient deeds of Feoffment of lands in Kent referr to Wills sc Dedi concessi c. A. B. omnia terras tenementa c. ad opus usum perimplendi ultimam voluntatem meam c. Also there are wills to be found of lands in diverse other Counties of this Realm whereby lands were devised before the Statute of Uses and no mention made of any Feoffees as appears in the Register-books of the Prerogative Court and in diverse other places and yet without doubt they bad Feoffees seised to their uses c. or else they could noâ— there devise the same Also the houses and lands in Cities and Burroughs which were deviseable by Custome were reckoned inter catalla sua but it were strange that all the Socage Lands in Kent which are conceived to be Gavelkind should be reckoned inter catalla c. And in the Register fol. 244. there are fourteen several Writs of Ex gravi querela and none of them make mention of any County c. nor of Gavelkind but secundum consuetudinem Civitatis or secundùm consuetudinem Burgi c. And if Gavelkind Lands be deviseable by Custome c. the Devisee can have no Writ of Ex gravi querela because there is none before whom the Action or writ should be brought c. Also Mr. Lambard in his Perambulation writing of the Customes of Kent maketh no mention of any Custome to devise lands nor the Treatise called Consuetudines Cantiae in the old Mag. Charta fol. 147. which without doubt they would not have omitted if there had been any such Custome c. Also between the Statutes of 27. H. 8. of Uses and the Statutes of 32. of H. 8. of Wills there were very few Wills made of lands as appeareth by the Register-books before mentioned and the most of such Wills as were then made being but few in number do make mention of Feoffees Also the common practice ever since the Statutes of Wills hath been such that if a Will be made void for a third part by a Tenure in Capite of part of the land c. that third part shall descend to the Heir and the Devisee shall not have it and this appears by special Liveries in the Court of Wards proving the same and by diverse witnesses that can prove the same to be so c. And in Sanders case of Maidstone in Anno 9. Jacobi Regis all the lands were devised by Will and after the Will was avoided for a third part by reason of a Tenure in capite of a small
rent or service paid or done for such land 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was by a transposition of the syllables called and known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Except the Churle or Countrey-man that occupieth censual land as one would say now Except the Country Fermor or the like He seems by this to be properly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. one that had no land of his own such a one as had being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. terrae proprietâ—rius a landed man as the word is I take it to be rendred not Viator a way-faring man or the like as some have guessed But to keep us to our Gafol within and under which term and notion not onely the generality of rent and customary whether payments or services was comprehended and comprised simply but what we at this day call Rent-corn Rent-honey Rent-barley and the like the special and particular rents and services I mean by the custome of some manors yeilded by the Tenants to the Lords thereof though now for the most part turned into moneys were in elder times in composition called Corn-gavel Hunig-gavel Bere-gafol c. Without impertinencie I hope I shall here present the Reader with a list of as many of them as with much content to my self I have ransacked old Records to find out for this purpose with an assay of mine own at their several expositions and they are divisible into two sorts the one beginning the other ending with Gavel Both of them follow Gavel-corne Gavel-erth Gavel-rip Gavel-med Gavel-ote Gavel-dung Gavel-rod Gavel-tymber Gavel-refter Gavel-bord Gavel-swine Gavel-wood Gavel-sester Gavel-werk Gavel-noht Gavel-fother Gavel-bred Wood Gavel Work Gavel Swine Gavel Corne Gavel Peny Gavel Malt Gavel Les Gavel Leaf Gavel Hunig Gavel Were Gavel Twy Gavel Bere Gavel For Gavel In the list of the Rents and Services reckoned up in a Lieger-book of the Church of Canterbury as charged upon that Churches manour of Adesham in Kent this in particular thus occurrs Item de Gavel-corn 66. sum Doubtlesse it is the same with that in a composition made between the Abbot and Covent of St. Augustines at Canterbury and their Tenants of Minster and Hengrove in Thanet anno 19. Hen. 6. called Corn-gavel and there thus described Et quod quatuor Swillingae dimidia quarta pars unius Swillingae residuae tenebantur tenentur de praedictis Abbate Conventu per fidelitatem relevium per redditum servitium vocatum Corn-gavel viz. reddendo eisdem Abbati Conventuâ— successoribus suis annuatim in festo S. Michaelis Archangeli de qualibet Swillinga earundem 4. Swillingar Quindecim quarteria quinque buschellos ordei palmalis 15 quarteria 5 buschellos avenarum de praedicta medietate quarta parte unius swillingae secundum ratam portionis ordei avenarum illas medietatem quartam partem contingentis defeernd cariand ad costas expensas praedictorum tenentium usque ad granarium dictorum Abbatis conventus infra monasterium S. Augustini praedictum vel per servitium reddendi pro qualibet acra dictarum quatuor swillingarum in â—od festo S. Michaelis octo denarios pro dictis medietate quarta parte unius swillingâ— secundum ratam portionis illas medietatem quartam partem unius swillingae de praedictis ordeo avena contingentis in casu quo praedicti tenentes praedictum or deum avenam in eodâ—m festo in formâ praedictâ non solverint Thus the composition whereby it is apparent what Gavel-corn signifies namely as before was intimated Rent-corn In an Accompt-roll of the Arch-Bishop of Canterburies manour of Reculver in Kent anno 29. Edw. 1. this service under the title of Arura occurrs thus Item respondet de xxxv acris de consuetudine arandi Gavelherthe In an old Customal of Gillingham manour in Kent of about that age I read thus Item sunt ibi quinque juga quodlibet arabit unam dimidiam acram ad semen frumenti seminabit herciabit dimidiam acram ad semen ordei herciabit unam virgatam ad avenam herciabit warectabit dimidiam acram ad ordeum nihil recipient vocatur istud opus Gavelerth This then it seems is a certain Tillage-service like the arura in Bracton fol. 35. b. due by the Tenant holding his land upon terms of plowing c. a certain quantity more or lesse of his Lords Demesnes not alwayes performed in kind but bought out and redeemed sometimes with money Et de 10. sol de 10. acris de Gavelerth relaxato hoc anno quoth an old Rental sans date of the Arch-Bishops foresaid manour of Reculver It was of some affinity as with the French Poictovines Biaus so also with that which Mr. Lambard calling Benerth expoundeth by service which the Tenant doth with his cart and plough With his plough indeed and also with his harrow but not that I find with his cart it being a meer tillageservice as Gavelerth is alwayes performed precariò as the Frenchman saith precairement upon request and summons in aid and for the help and ease when need was of other Tenants bound to do the like de gablo i. e. as I conceive ex debito and without summons and with allowance of more than regularly was afforded in the other service a coredy i. e. diet or victual fometime called Benebred during the employment Glanvils precarias carucarum forinsecarum lib. 8. cap. 3. may hence be understood Matthew Paris in his History of England pag. 895. of the last Edition making mention of a Breve inauditum as he there cals it i. e. an unheard of Writ issued by Hen. 3. recites this as a part of it Similiter inquiratur de carucis precariis which by the learned Authour of the Glossary at the end of the work is thus illustrated Erant precariae saith he speaking of several sorts of Ploughs quas scilicet in necessitate aliqua eminentiori colonus uaus à proximo precario mutuabatur Hence the phrase in many old Custumals and Rentals of plowing this or that quantity of the Lords land by his Tenant de prece de precaria ad precariam and the like In precariis carucacum in auxilio herciandi vj. sol viij den saith an old Accompt-roll of Saltwood manour The meaning of such passages in records of that kind as this arant preces semel ad conredium Curiae c. and the like may hence be pick'd out It took name this of Benerth I conceive of the Saxon bene postulatio as Mr. Lambard and before him Jornadensis translating the Saxon Laws turn the word occurring in the title of the eighth of King Ina's Laws as Sir Hen. Spelman doth by Rogatis Concil tom 1. pag. 583.
as it is used besides in composition in each importing Cens i. e. Rent either in money provision or works And being thus far advanced in the dispatch of our positive Proposition what is the true sence of Gavelkynd I must now desire the Reader in the next place to observe and consider with me that as there are divers sorts of land to be found both in this County and elswhere by the nature of their Tenure not Censive or Censual nor of the kind to pay or yeild Gavel that is such Rent or Rent-service whether in money provision or works as ariseth from ignoble base and plebeian Tenures in which onely Gavel is conversant to those of whom such lands are holden those namely holden in Alodio in Frankalmoigne or Mortmaine as called also abroad because yeilding the Lord no profit as being in a dead hand in Knights-service in Frank fee and the like so is there also such as that holden in Socage or Burgage Tenures or the like though free which contrariwise is Censual liable to Rent in some one or more of the kinds premised To distinguish therefore if not generally what land is from what is not of Gafol gilden nature or of the kind to yeild or pay Cens yet specially to put a difference between what alone is properly and anciently called Fee Knight-service land and it under which double head is comprised the generality of our whole Countries lands answering as to that dichotomy of Chivalry and Socage Tenures whereunto all the land in England in the hands of common persons is referred so also to that known distinction of their lands in Normandy from whence as some surmise we received our Gavelkynd whereof more hereafter unto Fief de Haubert and Fief de Roturier that is the Noblemans Fee and the Husbandman or Ploughmans Fee for distinction sake I say of Censual or rented land or Rent-service land from what like Fee properly so called being holden per liberum servitium armorum yeilded no Cens Rent or Service whether in money provision or works the former of the twain was called Gavelkynd that is as Mr. Lambard rightly in the second of his fore-mentioned conjectures of the kind or nature to pay or yeild rent or land holden not properly in Fee but as the Feudists are wont in this case to distinguish contractu censuali as being letten out with or under condition to pay Cens or Rent or with a reservation of Cens or Rent like unto those in the charters of the Conquerour and his son Hen. 1. the one to Battell the other to Reading Abbeys expresly called Terrae censuales and there opposed to Fee witnesse this provision occurring in each charter Terras censuales nec ad feudum donet nec milites nisi in sacra veste Christi faciat nec de possessionibus Ecclesiae quisquam teneat aliquid feudaliter absolutum sed ad censum annuum servitium Abbati monachis debitum See Clement Reyners Apostolatus Benedictinor in Anglia tract 2. pag. 137 154. It is no simple word Gavelkynd but a compound of Gavel and kynd the latter syllable whereof to proceed on to that cometh and is contracted of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a word frequently occurring in the Saxon Sermon set forth and published by Mr. Fox in his Acts and Monuments and again of late by Mr. Lisle as an Appendix to another Saxon piece a Treatise of the old and new Testament in the version or translation of the word they both concur rendring it in our modern English Nature To give an instance or two 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after true nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. it is naturally and the like Iâ— will peradventure be objected that Mr. Lambard in his Perambulation pag. 495. meeting with the word several times in the Saxon will of Byrhtric of Mepham in this often repeated passage there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alwayes translates it after the old Latine version in Textus Roffensis within that kinred and in a marginal note against it calleth it a kynd of gift in tayle But for reply if I may have leave freely to deliver my sence that version is not good for under favour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there importeth not as that Translation would kinred but rather kynd nature sort quality or condition and consequently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there if rightly is thus I take it and not otherwise to be Englished viz in that kind or after that nature or upon the same terms or with the same condition having relation if you mark it to the tie upon the next precedent legacies gifts or devises of other land charged either with alms or with rent in way of alms payable thereout by the Legataries or Devisees for the Devisor or Testator his souls health Had it been otherwise ted books the following passage in a Charter recorded in a Lieger of the often alleaged Cathedral at Canterbury of certain land all which the party had in Southweâ—k given to that Church by Norman le Wautier in the year of Christ 1204 which thus speaketh Et quia praedicta terra de libero catallo proprio perquisito meo fuit non de aliqua hereditate parentum meorum ideo Deâ—minde S. Thomam Martyrem Sanctos Cantuariensis Ecclesiae conventum monachorum ejusdem heredem meum legitimum inscribo hac mea carta in perpetuum constituo To which many more such like might easily be added from the same Promptuarium The Fâ—udists in this case distinguish between Feudum novum antiquum as may be seen in Vulteius de Feudis lib. 1. cap. 10. num 73. In the next place the Reader may please to observe with me that as Britton distinguisheth of a double tenure in Mortmaine the one called Almoigne or Aumone simply the other Frankalmoigne describing the former to be a gift in alms but not free alms because saith he a certain service is reteined or reserved to the Feoffor cap. 66. fol. 164. â— so this in hand is no alienation in Frankalmoigne the Fâ—offers it seems not intending to give the land in that absolute manner but in token of Seigniory to reserve something of service to themselves phrase their gift not in puram eleemosynam or in liberam eleemosynam one of which words viz. either pura or libera is some say others say both essential to the making it a tenure in Frankalmoigne and to the excusing it from service with which the next following words and to Gavelkynd could not have consisted pure alms or Frankalmoigne excluding the return of all but divine services and burthens they phrase it not therefore I say in puram or liberam eleâ—mosynam but onely in perpetuam eleâ—mosynam and to Gavelkynd by the former of these words investing the Hospital with an estate in perpetuity by the latter and the Reddendo following saving and reserving
Custome to be of an unknown rise But be it so that Custome carries such a stroke here what kind of Custome is it or how shall we find such a Custome for it as may consist with Gavelkynd-land of novel Tenure whereof before so often Hic laâ—or hoc opus est here 's the point indeed Why in short it is no other than a custome generally spreading it self throughout the whole Countrey in land of that nature What elswhere I mean in other Shires and Counties they properly call by the name of Socage whether free or base we here in Kent are wont to call by the name of Gavelkynd or if you please in Mr. Lambards expression all Socage service here properly so called is clothed with the apparel of Gavelkynd and under it in a large acception is understood all such land within the County as is not knights-Knights-fee or Knights-service land the term serving here as that of Socage elswhere to contradistinguish iâ— from Knight-service land as Fief Roturier or rather â—nheritence Roturier all other being improperly and corruptly called Fief or Fee that is not holden militiae gratiâ the ground of all Fees is used in Normandy to difference that from Fief de Haubert or Noble Fief Now into all land of this kind by a general or universal custome of the whole County hath this property of partition been introduced insomuch as what land was granted out in Gavelkynd by such as before held it in Dâ—mesne or the like as for want of time and usage it had no particular custome introductive of that property of partition so neither did it want the same the generality of the Custome extending it self to all Censual land or land letten out for Cens and sufficing to render it partible as occasion should be offered though but newly dimised To this purpose Mr. Lambard Although saith he iâ— were so that the land were never departed in deed yet if it remain partible in nature it may be departed whensoever occasion shall be ministred Granted out I say and holden in terms for Cens conceiving a necessity of that or the like expression in the Habendâ—m or other part of the grant to make it capable of this and the other properties incident to Gavelkynd not intending here the very numerical word or term Gavelkynd but that or some other of equivalent sence and signification with it for example Reddendo such or such a sum de gablo de censu and the like whereof for illustration sake expect some copies of old grants in the Appendix to this Discourse These indeed such as these were the more usual expressions in elder grants that of Tenendum in Gavelkynd the like being sought of me in vain before H. 2. dayes nor afore-time doth the term occurr in any writing or monument whatsoever save onely in this passage in Spot St. Austins Monk and Chronicler at Canterbury who â—aith that anno 1063. Abbas tradidit terram de Dene in Gavelkende Blakemanno Athelredo â—iliis Brithmâ—â—i But from Hen. 2. dayes downwards it is obvious in many grants of land recorded and extant in the Liegers of Christ-church Canterbury the laâ—e Abbey of St. Austins there and many other of the Kentish religious houses until about the time of that Sâ—atâ—te Quia emptores terrarum which forbidding the letting out of land by any man to be holden of himself and consequently cutting off all new Tenures and the creation thereof stopped the current of all such grants of land in Gavelkynd for the future That such an expression as Tenendum in or ad Gavelkynd or the like was necessary to render the granted land partible after the custome of Gavelkynd without the help of Prescription requisite in partible land elswhere out of Kent may in part appear by a Record of a controversie happening now full 400 years agone between one Burga sometime the wife of Peter de Bending Plaintiffe and the Prior and Covent of Christ-Church Canterbury Deforciant or Defendant touching the moiety of the manor of Well by them granted to her said husband ad feodi firmam challenged by her tanquam francus bancus suus which controversie was debated and decided in Eire and is recorded in the Liegers of that Church from whence I shall present the Reader with a copy of it not unworthy his perusal in the fore-remembred Appendix Scriptura 5. Neverthelesse it will here I think be necessary that we distinguish times for what at first in Kent was only partible because of the Tenure in Gavelkynd I perswade my self was afterwards in tract of time partible and did communicate with Gavelkynd-land in that property by being Socage land though not expressely holden in Gavelkynd it sufficing at length to shew as Mr. Lambard hath it the Custome at large and to say that the land lieth in Kent and that all the lands there be of the nature of Gavelkynd By what means this was wrought or by what degrees our Socage land arrived at this universality of partiblenesse is not so easily discovered That the sundry favours of Gavelkynd custome should iutice many to creep into it and by one and one upon occasion of the intestine troubles that ensued the deprivation of King Richard the second to shroud and cover themselves under the safety and shadow of the priviledges that do wait upon it is an opinion of some whereunto I cannot subscribe as conceiving no Tenures in Gavelkynd to be so late as Rich 2. dayes which this opinion would infer with what consistencie with the Statute of Quia emptores terrarum made so long before and prohibiting the creation of new Tenures I cannot see But to let the manner passe the thing the over-spreading the Countrey in processe of time with this Tenure is very obvious and apparent witnesse an ancient Statute made anno 18. Hen. 6. cap. 2 taking knowledge that There were not at that day within the Shire above xl persons which had lands to the yearly value of xx pounds without the Tenure of Gavelkynde and the greater part of this County or well nigh all was then within this Tenure To proceed ascribing this property of partition in Gavelkynd-land to the custome of the Countrey what shall be said then to the partible land more or lesse abroad in other Counties â— is such Gavelkynd-land and so to be called or not or is it from Gavelkynd that such partition there obteins I conceive not For first our Kentish Gavelkynd Custome considered collectively with respect to all its branches is not to be restrained to this one particular property but as before is intimated consists of many other as singular properties besides and which may as well challenge a share and right in the Customes name as may that of Partition such as is Dower of the Moyety not to forfeit lands for Felony and the like and though in point of Partition it may be like ours in Kent yet in other
properties incident to our Gavelkynd it might and no doubt but doth differ from it Besides that such partible land elswhere should be called Gavelkynd will not stand with out premised grounds excluding Prescription in Gavelkynd land whereas in such places abroad though haply not in whole Counties yet in particular Manours I conceive it 's necessary even in their Gavellonds whereof I find mention made in several manours out of Kent as some in Kent to shew quod terra illa à toto tempore c. partibilis fuit partita the accustomable actual partition of it being there as necessary to be pleaded and proved as its capability of such a property Add hereunto that if all partible land were Gavelkynd rendred such by partition alone then were Bractons Sicut de Gavelkynd vel alibi ubi terra est partibilis ratione terrae an improper expression We are told that this Custome of Gavelkynd partition takes place hath done at least in other countries or counties besides Kent and Littleton instanceth in North-Wales But what custome I pray a custome indeed like to that in the Scottish Socage land of partition that 's true and testimonies of it are obvious such as besides that of Littleton Statutum Walliae the Welch History and some Acts of Parliament But still I say no Gavelkynd-custome taken in its true plenary and compleat acception comprising all the properties of it obvious in the Custumal As then for other Countrey-mens communicating with us of Kent in the Tenure I conceive it first came up by way of imitation of our example in Ireland especially and amongst the Welch-men in whose Vocabulary or Dictionary the word is sought in vain as it is also in that old Statute which concerns them Statutum Walliae where though mention may be found of a custome there obteining of partition of their lands like to that of our Kentish Gavelkynd yet without any one word of Gavelkynd And if perhaps it may be found in their deeds charters or other records yet as one saith in a case not much unlike conditioned to this of ours whose words with very little variation I shall therefore take up here Suspicari licet hanc voâ—em pluribus illorum chartis actisque publicis nâ—n tam illorum quà m pragmaticorum usu ac instituto invectam i. e. 't is to be suspected that it had its imposition and was first transmitted hither by our Lawyers who borrowed the term to make use of it for illustration sake like as of late I am perswaded the Parliament did in that Stat. 34. Hen. 8 cap. 26. where the term of Gavelkynd haply is but borrowed to help describe and illustrate that partible quality there mentioned of the lands in Wales which I am the more induced to conceive because in a former Statute concerning Wales namely that of the 27th of the same King cap. 26. making mention of this partition Gavelkynd is not at all remembred In imitation then as I conceive of the Kentish-men the generality of whose partible land of long time hath notoriously been known by that title and whose lands alone of all the Counties of England at this day be of the nature of Gavelkynd of common right this name or term of Gavelkynd in lands elswhere of like condition in matter of descent hath been taken up and is reteined By that which hath been said I may be thought to incline to their opinion who hold that Socage and Gavelkynd are Synonyma terms identical and of one and the same signification here in Kent and that consequently what land here is of Gavelkynd-nature is of Socage-tenure as on the other side what land is of Socage-tenure is of Gavelkynd-nature I answer No for I require in this case I mean to make Socage land here in Kent ipso facto partible after the custome of Gavelkynd that it be granted out and holden in Gavelkynd expressely or in terms equivalent as I said before yet with that distinction oftimes wherewith I there qualified it Notwithstanding I am not of their mind who distinguishing between free and base Socage in Kent make the natures of their descents divers the free Socage say they descending to the eldest alone the base falling in division between him and all his brethren Thus Mr. Lambard in the person of others to help justifie whose distinction with the inference upon it he there exhibits an Inquisition taken after the death of one Walter Culpepper making mention of divers parcels of land and annual rents holden by the deceased at his death some in liberum feodum others in Gavelkynd the former of which by the verdict of the Jury was to go to the deceaseds eldest son alone the latter in common amongst him and the rest of his brethren Thus the Inquisition which as Mr. Lambard there follows it cleerly distinguisheth free Socage from the Gavelkynd interpreting it seems liberum feodum there by Free Socage and it may be rightly however I crave leave of dissent and as it is but fit shall give my reasons For my part I never found Free Socage any where expressed by that term or in Latine rendred Liberum feodum nor perhaps to those of more diligence and more conversant with our Law-records than my self hath it ever occurred under that notion Nor have I met with any Free Socage as this here not subject to the rendring of some kind of service either in denariâ—s or otherwise By Liberum feodum I understand sometime Feodum militare which is often in old Records called Liberum feodum In a very ancient Rental of Southmalling manour in Sussex we have this title Liberi feodi and under it Godefridus Walensis tenet 111 feodos milit in tenemento de Malling quartam partem unius feodi apud Terring per liberum servitium armorum suorum Willmus de Bransa tenuit apud Adburton unum feodum militis per liberum servitium armorum suorum And so some others Apposite here is that of Bracton Notandum saith he quod in servitio militari non dicitur per liberum servitium ideo quiaconstat quod feodum tale liberum est c. Sometime also by Liberum feodum I understand what I conceive it doth principally denote unto us Frank Fee that is by the Feudists definition such prâ— quâ— nullum omninâ— servitium praestatur and therefore is of them reckoned inter Feudastra or Feuda impropria And such as this seemeth to be meant by Liberum feâ—dum in that Inquisition because it is there in terminis expressed to be holden just after the manner of Frank Fee by the precedent definition of it absque aliquo servitio inde faciendo And if Frank Fee then in probability not Socage for as all the land in the Realm say our Books is either Ancient Demesne or Frank Fee so none say they is to be accounted Ancient Demesne but such as is holden in Socage
but because it was land which by the nature of it apperteined not to the Gentry but to the Yeomanry whose name or house they cared not so much to uphold by keeping the Inheritance to the elder brother And thus at length though 't is like enough from small beginnings as many times great streams have but narrow fountains it became so spred and diffused over all the County that what was not Knight-service but Socage-land or of Socage Tenure was in time in Mr. Lambards phrase apparrelled with the name and as may be added qualified with the properties of Gavelkynd And hence also it comes to passe both that we very rarely or never meet with any land there at this day other than Knight-service land that is not of Gavelkynd nature and of a partible descent and that withall both our printed and manuscript Custumals whether general or particular use never a word of Socage Tenure but of Gavelkynders Tenants in Gavelkynd Tenements of Gavelkynd and such like as Mr. Lambard observeth pag. 544. And notwithstanding the ancient printed Custumal in Tottell claimeth freedome onely to the bodies of the Gavelkynders which may be the truer reading yet Mr. Lambards may especially at this day passe well enough by whose copy it is claimed as due to all the Kentish men in general as for the generality of the Commons by common intendment such at this day But of these things hitherto Yet ere I proceed to the next Proposition let me discharge my self of a late promise for inquiry into the following Emergent Whether the Writ De Rationabili parte bonorum lie at the Common Law or by Custome THis Writ is grounded and dependeth on a tripartite division of a mans personal estate whether dying testate or intestate and leaving behind him wife and children as in case he leave onely a wife and no children or children onely and no wife upon a bipartite In the former of which cases one third part of the goods belongeth to the widow another to the children and the third called the Deaths-part to the use of the Defunct to be disposed either by himself as he shall see good by his will or for him if he die intestate by the Ordinary in pios usus In the latter case one moyety falleth to the widow or to the children as the case shall be and the other to the use of the dead as before In both cases to the children of the deceased each of them a rateable part provided that such child be not his fathers heir or were not otherwise advanced by him in his life time unlesse haply for hereof there is some question waving that his former portion he shall choose rather as in the case of lands to take the benefit of this partition by the way of Hotchpot which is all one with the Civilians Collatio bonorum or the Lumbards Missio in confusum See Dr. Cowell and Sir Henry Spelman in Hotchpot Now that there was any certain or definite part or portion of the deceaseds goods or estate whether real or personal any Quota pars or Legitima as the Civilians term it by any custome here nationally observed due to the widow or children in the Saxon times doth not that I can find appear by any Law or other monument of theirs now extant The plainest and most visible footsteps of that tripartite division or partition by this Writ intended appear in that remarkable place of venerable Bedes Ecclesiastical History lib. 5. cap. 13. where we read of one who Testatorlike disposing of his substance or estate Omnem quam possederat substantiam in tres divisit portiones Eâ—quibus unam conjugi alteram filiis tradidit tertiam sibiipsi retentans statim pauperibus distribuit The Saxon reading hath it more for our purpose thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Where mark the third part is there said to belong to himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. plainly insinuating that the other two as rightly apperteined to his wife and children each of them a third But withall observe that this is the act of an house-keeper in the Province or Region as there called of Northumberland Paterfamilias in regione Northanâ—ymbrorum c. so is he described and such a testimony indeed it is as makes much I confesse for the antiquity of that Custome of a tripartite division yet surviving and currant in those Northern quarters of the Kingdome but whether in right construction extensive any further or concluding for a national custome in that particular especially since traceable in few other parts or counties of the Realme by any later or elder footsteps I think may well be doubted To proceed then for I intend to state and handle the point rather as an Historian relating the matter of fact than as a Disputant arguing the case as for that Law or constitution of King Edmund which some insist upon for the widows right to a moyety of the estate if she have no issue otherwise in case of issue and remaining sole to the whole that cleerly takes place onely vigore contractus or by force of a precedent contract the Law in that particular being ushered in with this ground or supposition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. if it shall be so mutually agreed or covenanted before or upon the marriage Nor doth that Law of King Canutus par 2. cap. 68. conclude for more than this namely a partition of the estate amongst the wife children and nighest kinred to be made judicio Domini by the Lord of the Soils discretion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. rightly or according to right and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after the measure raâ—e or proportion that to them belongeth not determining or making any mention what that right that measure or proportion is in certain not the widow and children each of them a third for then where were the kinsfolks share but leaving it indâ—â—â—niâ—o and undetermined as what haply being ordered by the Lords discretion and that swayed and regulated by that optima legum interprete Custome might vary with the place Nor was any such partition currant here in case there were a will for what saith the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. i. e. If any one depart this life intestate c. implying liberam testandi facultatem a free liberty to dispose otherwise by will as doth also that Law of his Successour the Confessour ratified and re-inforced by his Successour the Conquerour providing that the children of persons intestate shall equally divide the heritage In which respect and because by taking no notice of the widow as neither doth that other Law of Canutus par 2. cap. 75. it tacitely seemeth to exclude her I know not well what much pertinent to the point in hand can be concluded from that Law And as not from this so neither I conceive from that Law of King Hen. 1. cap. 1. because it concerns
place occurrs Feudum For example in the Charter of Witlaf the Mercian King dated anno 833. we have it thus xl acras de eodem feodo in campo de Deping The like in a Charter of Bertulph another Mercian King also dated anno 860. and in some other of later date from succeeding Kings we have de eodem feodo de Gerunthorpe and the like whereas it may very justly be doubted whether either the Laws Stories or other either written or printed monuments of credit of any Nation or Countrey can shew the word Feodum or Feudum in use amongst them but in stead thereof Beneficium Feudum's elder brother or the like until about that age until I mean after the beginning of the tenth Century from our Saviours incarnation And hence give me leave with Buchelius in his Illustrations upon Heda's History of the Bishops of Utrecht to suspect that list or memorial De vassis sive fide addictis Ecclesiae Episcopo Trajectensi as there it stands intituled of Heda ascribed to Adelboldus the 19th Bishop of that See who after he had sate 18 years died in the year 1028. as indeed a piece unadvisedly referred to that time and place and in all probability belonging to some Successour of his But be that as it will I see nothing however that may render us unsatisfied of the truth of their assertion who say that the Conquerour brought or introduced first into this Kingdome Feudum Feodum or as in English Fee taken as it signifies Feudal services especially military praedium militare the sence in which as it regularly occurrs in the Feudal books abroad so constantly in Domesday-book here at home for distinguishing the land from other there said to be holden per gablum ad â—irmam in Alodio and other like Tenures there occurring the Introducer borrowing saith one of my Authours the term he might have added the Customes from his own native countrey Normandy which he concludes from a passage of himself there quoted out of Domesday-book thus speaking In eodem feudo de W. Comite Radulfo de Limes ' 50. carucat terrae sicut fit in Normannia thus subjoyning Feudum Nomanniam jungit ac si rei novae notitia è Normannia disquirenda esset But with submission to better judgements I question whether those words sicut sit in Normannia may not relate to Carucatae terrae being an expression not used of the Saxons for a Plough-land but Aratrum Sulinga Hida Familia Mansio Mansa Manens Casata and the like terms of quantity rather than to Feudum from which too it is further distanced in the quotation than from the other But to let that passe to the Conquerour it seems it is that the name and customes of our English Fees or as we now vulgarly call them Tenures such at least as are military ow their introduction whatsoever the Mirroir a book whose antiquity is too much cried up of some hath to the contrary as if in terminis known here in England in King Alfreds dayes by whom as the Authour there pretends iâ— was ordained that Knights Fee should descend and fall to the eldest and Socage among all the sons whereas in very deed we knew neither one nor t'other in those dayes they with the rest since and at this day called Fee-simple Fee-taile Fee-ferme Frank-fee as also Grand and Petite Serjeanty Escuage Burgage Villenage and the rest in the book of Tenures and elswhere obvious being all of the Norman plantation and we by them at least since their Conquest of us brought acquainted with them not knowing what Fee in that notion meant before nor being to this day agreed among our selves as neither are the Feudists and other writers on that argument in other parts upon the etymologie and derivation either of that oâ— the word whereunto it is opposed Allodium wherein indeed Authours of several sorts Lawyers I mean Etymologiâ—ts and Antiquaries so much differ and disagree as that the further we wade in the research of their opinions in that kind the more uncertain still we come off and the further we are from the end of our inquiry satisfaction However I will on this occasion adventure to offer my sence which if well considered may perhaps help to end the difference Not to repeat that variety of other mens opinions in the point of which some and those the most and with most general applause and acceptation fetch the former Feudum from Fides others from Faida or Feida bellum a third from Foedus a fourth from the German Fueden quaâ—i a fungendo i. pascendo or as Gryphiander hath it from the Saxon Foden i. e. nutrire to let these derivations all passe without any further repetition as obvious enough in the writings of the Feudists and elswhere especially with some additions of his own in Martinius Lexicon Philologicum as likewise not to repeat the like variety amongst them as obvious as the other concerning the latter Allodium which some will have to be a derivative from à the privative particle and Laudium or Laudatio as a possession acknowledging no Authour no Lord of the Soil but God alone others from that privative particle and Lodes quasi sine Lode that is â—ine vassallo as a mad man is called amens to say â—ine mente as whose possessour is no Vassal whilest a third sort fetch it from Alsleud as we should say possessions common i. e. such as may freely be given or sold to all or any of the people the many like in this say some to what of old we here in England called Folcland by which but how properly since Folcland is parallel'd with what sithence we call Copy hold may well be doubted they are found to illustrate it contrary to a fourth derivation of others who hold it inseparable from the family and thence of the Germans called Ein Anlod A fifth sort there is that draw it from the foresaid privative particle à and Lâ—od in French Lâ—ud a Vassal as it were without vassallage or without burthen which we English men saith my Authour rightly at this day call Loade not further I say to trouble the Reader with either any longer repeâ—ition of these and the like for there are some other various opinions of this kind or any Catalogue of the several Authours of them I will as I promised offer my conjecture at each words etymologie with submission of it to better judgements In short then I say that each of the two words in its original which is German is a compound consisting of two syllables of which two the latter to begin with that I conceive to be the same in both and is no other than what is borrowed towards the composition of many several words of the same original used and continued both in those especially the Teutonic parts and also here in this Iland from the time of the Saxons setling here down unto this day
though with some little variation of the Dialect occasioned by tract of time bringing its corruptions and the intermixture of other languages and that is with us hade head hode with the Teutonics heyd and heit sometime hat betokening in each place as dome and ship anciently written scip in the terminations of many of our words a quality kind condition state sort nature property and the like Hence the military masculine feminine childish paternal maternal fraternal sisterly desolate presbyterial neighbourly quality nature kind condition c. of a Knight a Man a Woman a Child a Father a Mother a Brother a Sister a Widow a Priest a Neighbour c. is termed Knight-hode Manhode Womanhode Childhode Fatherhode Motherhode Brotherhode Sisterhode Widowhode Priesthode Neighbourhode c. The quality nature existence of the Deity is stiled Godhead with us with our Ancestours the English Saxons who wrote and had that hade which we since write and have hode and hood Godhade Head in Maidenhead ows it self to the same original denoting out the virgin-condition or maiden-quality of the party Hood in Livelyhood is also sprung from the same root whereby a mans state of subsistence is signified and the like may be said of hood in Falshood Likelyhood and a many words more of like termination as expressing and setting forth in the one the false in the other the probable likely condition of the thing predicated This may also help us in the etymologie of what we use to call Feud or deadly feud our Ancestours the Saxons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Germans Fhede Feide and Faide which in truth is but a compound of their Fâ—h i. e. Hostis Inimicus as we say at this day a Foe and hode hade head heyt c. â—i conditio status qualitas c. together importing the condition of enmity in the person who bears it I could here enlarge with instances of very many Teutonic words thus terminating I mean in their Dialect with heyd heit and the like and by such their terminations predicating as is said before a quality condition c. such as Allenheyd Felheyd Fijnigheyd Hebbelickheyd Heyligheyd Maeghdelickheyd and numbers more obvious in every page of Kilianus Dictionarium Teutonico-Latinum and elswhere but I fear to be tedious Seeing now what the latter syllable in Feudum and Allodium in their several originals signifieth and having taken the words thus asunder let us next consider of the other part of the composition their former syllables which in Feudum the former is Feh Feo or Feoh signifying as Pecunia in the general so more peculiarly a Salary Stipend Wages intended of us when we say Officers live by their Fees whilest in the other Allodium the former syllable rightly written is All Al or as with the Saxons eal Put we now the syllables together again and then the former will come forth Feo-hode Feh-hode or the like the latter All-hode and that most appositely if applied to the Feudists Feudum and Allodium considered in their originations and primitive acceptions The former of which when first instituted was but personal not as afterward perpetual patrimonial hereditary or holden in Glanvill and Bractons phrase ad remanentiam but as a Clergy-man holds his Benefice hence in some ancient Charters called Feodum onely for life the Tenant being but a meer Stipendiary a Termer at best but a Freeholder for life Usufructuarius and indeed some were not so much but held only as our learned Glossarist hath it ad voluntatem Domini as others precariò not unlike our Tenants at will since and at this day the land was onely lent as the German term for it Lehen seems to intimate In processe of time degenerating and receding from their first institution they became perpetual and hereditary yet holden as formerly with a condition of service on the Tenants part and stipendii loco nomine on the Lords by way as it were of Salary Pension or Stipend from the Lord to gratifie and recompence his man withall for such his service to which he was obliged under peril of forfeicture by the withdrawing thereof I dare not add in consideration of Fealty or Homage in those times since though that acknowledgement in the Feudal Law of some Fee tenable without an oath of Fealty be indeed justly taxed for a paradox of such who will have Fee to come of Fides whence haply our legal maxime that all Tenures regularly are liable to Fealty yet might Fee by this derivation of it stand with Fealty and the Tenants of it be called Fideles feudales without a soloecisme a good argument for the derivation of it thus rather than from Fides as of more scope and more consistent with Fee of all sorts than that other derivation doth allow Fees I say were holden but in service nomine quasi alieno the Dominium that at least of Lawyers called directum though the utile were transferred on the Tenant the propriety I mean remaining and abiding still in the Lord together with a power of restraining his Tenant from alienation and consequently such land was but partially conditionally not totally and absolutely granted out Contrariwise that which was termed in opposition to it Allodium as it was hereditary perpetual and patrimonial so was it â—ans all condition free and in the power of the possessour to dispose of it ad libitum how he pleased either by gift or sale without asking any man leave and as it was hereditary perpetual patrimonial and free land so was it withall possessed totally and wholly not as our land generally in this Kingdome in Subjects hands at this day said to be holden in Dominico suo ut de feodo as our Lawyers phrase it but rather in Dominico suo ut de jure the owner having Dominium both directum and utile or in the Feudists phrase and after their unanimous harmonious definition of it pleno jure integrè ex toto or ex solido as Malmesbury hath that which Eadmerus expresseth by in Alodium quit of all services like Frankalmoigne whereunto Mr. Selden there in that respect resembles it I may call it absolutely immediately or if you will independently without acknowledgement of any superiour Lord not unlike the Prince of Haynault holding onely saith my Authour de Deo Sole or as other absolute Princes Gratiâ Dei in a word in totality whence the terms of praedia immunia terra propria fundus proprii juris patrimonium in Charters and elswhere given to such possessions Probably land of this nature was the same with our Bocland which I sometime find in the Latine rendring of some Saxon pieces turned by it hence a hint to judge of the one by the other for what in the 11th Chapter of the first part of King Cnutes Laws is read Bocland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and in the old Latine version of it in the Kings Ms. and Jornalensis
worn and beaten out of state and therefore of necessity lying over year and being converted from tillage to pasture until it may recover state and be fit for tillage again the term or denomination coming from the French Susanné signifying stale grown old past the best or overworn with years The eleventh For-land the same I take it that we otherwise use to call Fore-aker whereof see more in Sir Henry Spelmans Glossary verb. Forera The twelfth and last Bord-land that holden and occupied by the Bordarii or Bordmanuâ— the same I take it with the French Bordâ—ers i. e. Villeins or Cottagers such as hold by a servile base and drudging Tenure of them called Bordage You may read both of the one and the other in the old grand Custumier of Normandy cap. 53. Within the â—ignification of the word Bordland are comprehended also as is already hinâ—ed in this chapter lands holden in Demesme of the Saxons termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and designed to the furnishing of the Lords boord or table and the maintenance of him and his family in victual For which see Bracton lib. 4. tract 3. cap. 9. num 5. Which kind of land the Saxons used to call Foster-land quasi fostering land that is land ad victum a term obvious and very frequent with the religious men of those dayes who as they had their special Ferms and portions of land assigned them ad victum so had they other as peculiar to their clothing or apparelling land ad vestitum which from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vestis or vestimentum they called Scrud-land They had withall their Sextary-land which was such as apperteined to the office and was intrusted to the care of the Sacrist or Sexton and was designed chiefly to the upholding maintenance of their Church or Temple both in the Fabrick and Ornaments Besides all these they had their Almesâ—and which was that appropriate to their Almnery a parcel or place of the Monastery set apart for harbour and relief to such poor people for the most part as were allied or otherwise related to the Monks I may not heâ—e omit Over-land a name attributed to such land as lieth by or along a Rivers side and coming of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. margo the bank of a River whence that known places name lying by London alongst the Thames-side called St. Mary Overies compounded of the aforesaid Over and Ree betokening a River or Current of water Land of this name we have at or neer Ash in Kent alongst the Stour-side running to Sandwich Town and Haven I might to these add monday-Monday-land and the like monday- which with it fellows borrowed denomination from this or that week day and that in respect of the Tenants obligation to such or such servile works or services upon such or such dayes of the week in respect of that land But I purpose to digresse no longer having for brevity sake wittingly omitted the quotation of the places where these several names occurr which otherwise I should willingly have added and shall onely in the Appendix Scriptura 23. present the Reader with a copy of a Saxon charter making mention of those two Fosterland and Scrudland as somewhat more remarkable than the rest Now returning to our Bocland you must know that notwithstanding that introduction of new Tenures by the Conquerour we did not streightway forgo our Bocland that kind of Tenure I mean but reteined it both name and thing witnesse first what occurrs in a Deed sans date of certain messuages by Roger son of John Alderman of Radingate in Canterbury granted in Frankalmoigne to St. Laurence Hospital neer the city founded by Hugh of that name the second Abbat of St. Augustines there in the year 1137. viz. Duo messuagia quae sita sunt in terra d Bocland de qua nulli respondeâ— c. where we have not onely Bocland mentioned but the nature of it also in part seâ— forth Witnesse also another passage to the same effect in a like ancient charter to the Church of Canterbury for the grant of a parcel of land lying without the wals of the city between Queningate and Burgâ—â—e running thus Volo autem ut monachi teneant terram illam omnino liberam sicut ego antecessores mei nemini inde respondeant Witnesse lastly Domesday book it self where though haply not the name of it as neither of Folcland Saxon terms both yet the thing to my apprehension is very obvious and often occurring under the name and notion sometime of Tainland otherwhile and I think more often of Allodium Hence the phrase for the former of clamare ad Tainland of tenere in Alodio for the other both taken up as I conceive in opposition to Fee but the former so termed because indeed Bocland or Alodium was properly tenable by Thanes hence in the eleventh chapter of King Cnutes Laws par 1. Thegn and Bocland in the original Saxon as Thegen and Allodium in the Latine version in Textus Roffensis meet as relatives not but that it was sometime held by Ceorles as who were not incapable of holding it witnesse the old version of the Saxon Fragment in Mr. Lambard whereof before but when so as improperly there and as much out of place as Knights Fee proper to Knights and the nobler sort of people were in this Kingdome since and at this day in Socagers hands or in the hands of Sockmen whose proper tenure was that of Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as you have it before I have often much wondred with my self whence it should come to passe that diverse of our Canterbury houses and ground at this day pay no Quit-rent at all which others in the same place though holden in Free Burgage are known to do But considering afterwards with my self that Bocland often occurrs in Landbocs as they were called of the place in the Saxons time I at length concluded at least conceived such houses and ground to be the remains of our ancient Bocland which seemeth to be still surviving in them as if holden in Allodium pleno jure without all manner of chargeable service and no other probably than part of those eighty acres of land or the like in Canterburies Survey in Domesday-book thus expressed Habet etiam 't is spoken of Ranulfus de Columbers quater viginti aâ—r as terrae super haec quas tenebant Burgenses in Alodio so I read it rather than Alodia de Rege or as a very ancient book sometimes of St. Augustines Abbey now with the Kings Remembrancer in the Exchequer reads it Item dicuat Burgenses quod idem Ranulfus tenet quatuâ—r viginti agros de Allodiis eorum c. The same Domesday-book to prosecute this discourse of Allodium a little further makes mention particularly of some Allodiarii by name in that Kentish Survey and there also we may read to this
purpose Has forisfactur as habet Rex super omnes Alodiarios totius Comitatus Chent super homines ipsorum And In Cantia quando moritur Alodiarius Rex inde habet Relevationem terrae excepta terrae S. Trinitatis S. Augustini S. Martini exceptis his Godric de Burnes Godric de Carlesone Aelnold Cilt Esber Biga Siret de Cilleham these last three are mentioned also in the Survey there of Canterbury amongst those whose lands were Sac and Soc-free i. e. quit against the King of Sac and Soc Turgis Norman Azor. Super istos habet Rex forisfactur am de capitibus eorum tantummodc de terris eorum habent Relevamen qui habent suam Socam Sacam I rather read it habent than habet Relevamen because by charters both of the Cathedral and St. Augustines Abbey of those succeeding times I find the Monks in each place priviledged with the liberties of Sac and Soc c. over their Allodiarii as termed in the charters of the latter place over their Thegnes or Theines as in the former in what form of words see in the charter of each place for illustration sake copied in the Appendix here Scriptur 19. and 20. And least these various terms Allodiarii and Thegnes rendring them of a seeming difference should occasion any suspition of their being not the same for your satisfaction to the contrary take this note along with you that those who in the Latine charteis of St. Austins are termed Allodiarii in the very same charters exhibited in English like as in those at Christchurch are stiled Thegnes But what may it be ask'd were they then which in some very ancient Records of that Cathedral are named Threnges Indeed I have met with a Record there and you may meet with it here in the Appendix Scriptur 21. a choice one in my account as the book it self was iâ— seems in his who in the margent of the first page of it long since left this note Custodiatur benè iste libellus quia etsi appareat non valere benè tamen valet est libellus satis pretiosus monachis Ecclesiae Christi which makes no slight mention of such Threnges belonging to the Monks there in these very words Quia verò non erant adhuc tempore Regis Will mi milites in Anglia sed Threnges praecepit Rex ut de eis milites fierent ad terram defendendam Fecit autem Lanfrancus Threngos suos milites Monachi verò non fecerunt sed de portione sua ducentas libratas terrae dederunt Archiepiscope ut per milites suos terras eorum defenderet ut omnia negotia eorum apud curiam Romanam suis expensis expediret unde ad huc in tota terra monachorum nullus miles est sed in terra Archiepiscopi c. To this purpose Gervasius Dorobernensis then a Monk of the place speaking of the Archbishops dividing the revenue between himself and the Monks Sibi etiam saith he râ—servaverunt Comites Barones Milites Monachis verò assignaverunt rusticos agricultores These Threnges doubtlesse were the same which in Domesday-book are somewhere called Drenches and if so your best satisfaction what they were will be from the words explication in Sir Hen. Spelmans Glossary But me thinks laying these Records concerning them together and then comparing them wiâ—h the fore-cited ancient charters of liberties granted to the Monks of Christchurch and St. Augustines on the one hand and Domesday-book on the other Drenches Threnges Thegnes one and all may not unfitly be rendred in that books phrase Allodiarii being such Liberales as the Saxon Thegnes is not unusually turned in the old Latine translations as Thegenscipe by Liberaliâ—as such Ministri Fideles Servientes Nobiles as being by these places dignified with some portions of their Allodium or Bocland did militiam ex arbitrio tractare nullius â—omini imperio evocati nulloque feodali gravamine coerciti as our learned Glossarist concerning Allodiarii being permitted to continue in their pristine estate acquitted from military service and tenure when as others were from Threnges turned into Milites and their land consequently subjected to military fee and tenure Whether the name of Drenches were taken up from such a cause as our learned Glossarist from a Record by him there cited is assigned for it some reason there is to doubt from the mention of the terms Synonimy Threnges in that Record of Christchurch as known in that notion here before the conquest whereas the other sayes they took name first after it If before it as the Christchurch Record then I see me thinks some cause to suspect the term corrupted from Thegnes i. Thanes which cleerly that Cathedral had before the conquest On the other side if the Record in the Glossary be right and that withall Threnges Drenches Thegnes and Allodiarii be as all the fore-cited authorities laid together they seem to be Synonima's terms identical then were our Kentish Allodiarii such as had not revolted from the Crown by opposing the Conquerour whether by their aid or counsel but had peaceably submitted to him and his Empire whilest consequently others of the county opposing withstanding and resisting him and his coming in had ipso facto forfeited their possessions and if so then Spots history whereof so much before may well deserve yet another dash or if you will another spot But thus far of Allodium as also of what induced it Bocland which as to the name almost quite ceased with the Saxons though as to the thing it survived some time after under the notion of Allodium into which it was translated of the Normans here and of them so altered also in the very thing that it became thus far subject unto Tenure as in the opinion of learned men it was land as we say holden and so accounted whence in time that common and received axiome amongst us that in the Law of England since the conquest at least we have not properly Allodium that is not any Subjects land that is not holden in which respect as one saith he that can say most for his estate saith thus I am seized of this or that land or tenement in my Demain as of fee Seisitus inde in dominico meo ut de feodo c. And 't is most true at this day but under favour it was otherwise since the conquest witnesse besides Domesday-book where the opposite to Fee Allodium is very obvious those charters afore-cited the one of St. Laurence the other of Christchurch and such like mentioning land holden by the Authours or Owners for which they were responsible to none as also the Pinenden plea for the Archbishops lands of Canterbury and the grant in Alodium mentioned in Eadmerus evidencing cleerly the contrary and asserting some of them the continuance of such creations from the King to whom after Textus Roffensis
part of the land and the third part of all the residue of the lands being Gavelkind did escheat to the King for want of Heir which land is ever since enjoyed under the Kings title by escheat And John Wall upon a trial recovered against White the Devisee Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome and so it was agreed per curiam Pasch 37. El. in C. B. in Halton and Starthops case upon evidence to a Jury of Kent it was then said that it had been so resolved before and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome that the Land is deviseable c. And he that shall conclude upon that place of Fitz Nat. Brev. 198. l. that all Gavelkind Land is deviseable c. may as well conclude that all Lands in every City and Burrough in England is deviseable which is not so as appeareth by Mr. Littleton who saith that in some Burroughs by custome a man may devise his Lands c. And if Gavelkind Lands were deviseable by custome c. Then a man may devise them by word without writing as it is agreed in 34. H. 8. Dyer 53. for a man may devise his Goods and Chattels by a Will Nuncupative so may he likewise devise his Lands deviseable by custome because they were esteemed but tanquam catalla c. and it would be a mischievous thing if all the Gavelkind in Kent should be deviseable by word onely To these arguments and objections against the custome certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof reducible to three heads which to avoid all just suspicion of partiality and prejudice wherewith some zealous advocates and contenders for the custome have been and may again be ready to asperse me I shall here subjoyn together with such answers and arguments by way of reply as I have received from the learned Counsel of the other side in further and fuller refutation of theirs who endeavour to uphold the custome The learned Counsels arguments in behalf of the Custome FIrst they deny the old book of 4. Edw. 2. Fitzh Mortdancester 39. â—o be Lâ—w. But an Assise of Mortdancester lies of land deviseable if it be true that his Ancestour died seized unlesse it appears that the Defendaut claims by some other title But if the Defendant plead that the land is by custome deviseable and was devised unto him it is a good barr of the action Secondly They rely much upon the book of Fitzherb Natura Brevium fol. 198. which sayes that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough or in Gavelkynd which lands are deviseable by will time out of mind c. whence they inferr that all Gavelkynd-lands are deviseable by custome Thirdly They cite the Treatise called Consuetudines Cantiae in the book called old Magna Charta and Lambards Perambulation of Kent fol. 198. that lands in Gavelkynd may be given or sold without the Lords licence and they interpret the word given to be by will and the word grant to be by deed The Reply to the fore-going Arguments by such as stand in opposition to the Custome AS to the first Objection against the Argument taken from the Assise of Mortdancester they reply thus First they maintain that the Custome alone without an actual Devise is pleadable in abatement to an Assise of Mortdancester as well as the Custome with an actual Devise is pleadable in barr for which there is not only that book of 4. Edw. 2. but also Bracton lib. 1. fol. 272. Ubi non jacet Assisa mortis antecessoris among his pleas in abatement of the Writ having before treated of pleas in barr to it Cadit Assisa sayes he propter consuetudinem loci ut in Civitatibus Burgis c. and 22. Assis pl. 78. where upon the like plea the Writ was abated and Fitzherb Nat. Brev. fol. 196. I. whose authority they think strange to be denied in a matter of Law wherein he was a Judge and yet so strongly relled on in a matter of fact and custome in a place whereto he was a stranger and so was it practised and allowed in Itin. Johan de Stanton 6. Edw. 2. And the reason given by the book why such a custome is pleadable in abatement to this Writ is because the suggestion of the Writ may be true that the Ancestour died seised c. and yet the heir have no title where the lands are deviseable And it is the property of this Writ that the dying seised must be traversed and though the Tenant plead the Feoffment of the Ancestour or other matter in barr that is not matter of Estoppell to the heir as a Fine Recovery c yet must he traverse the dying seised and the Jury shall be summoned and charged to inquire if the Ancestour die quo obiit seisitus fuit c. and so are the books of 9. Assis pl. 22. 27. Hen. 8. 12. Brooke Mortdancestor 1. Old Nat. Brev. fol. 117. and diverse others Nor is there any opinion to be found in any book of Law against that book of Fitzherb Mortdancestor 39. until the 15th of King Charles Launder and Brookes case Crooke lib. 1. fol. 405. obiter upon the trial of this custome 2. Admit that at this day the Law is held to be otherwise yet it appears by all the authorities aforesaid that in those times the Law was taken to be that the Mortdancestor did not lie where there was such a custome but it was a good plea in abatement of the writ And yet Assises of Mortdancestor were then frequently brought and maintained of lands in Kent as appears by Bracton and the books abovesaid 3. Whether the custome alone be pleadable in abatement or the custome with an actual devise be to be pleaded in barr they say it cannot be shewn if it can they challenge them to do it who would maintain the custome that it was ever pleaded one way or other either in abatement or in barr to any one of all that multitude of Assises of Mortdancestor brought at large in that County when in so small a City and County as Canterbury where indeed there is such a custom they shew it often pleaded to writs of Mortdancestor brought there before Roger de Stanton and other Justices in Eyre Secondly To the book of Fitzherb Nat. Brev. fol. 198. upon the writ of Ex gravi querela from whence the ground of this question sprung they answer that the sence and meaning of that book no lesse than the Grammar of it duly observed is no more then that the writ of Ex gravi querela lies there where lands in any City or Town or in Gavelkynd are deviseable by custome Not that all lands in Cities and Burroughs and in Gavelkynd are
1647. Ja. Armachanus A Table or Index OF The principal Contents A. AEHte what p. 84 Agium in the termination of word what signifying p. 137 Akerland what p. 117 Allodiarii p. 123 Allodium the same with Bocland p. 88 110. the word derived p. 105. more properly in England since the Conquest p. 126. proper onely to the King to grant p. 126 Almesland what p. 119 Assise of Mortdancester where it lieth p. 152 157 Aver-bred what p. 25 Aver-land what p. 116 Avermannus p. 116 B. Bed-rip what p. 17 Bene-bred what p. 17 Beneficium of same signification anciently that Feudum of latter times p. 10â— Benerth what p. 18 Ben-rip what p. 17 Bere-gafol what p. 29 Ber-land what p. 118 Bermannus what p. 118 Bians what p. 18 Black-maile what p. 34 Black-rents what p. 34 Blank-ferme what p. 34 Bocland what p. 84. whence so called p. 112. how variously denominated p. 121 whether anciently deviseable p. 89. whether otherwise alienable p. 87 88. the same with Allodium p. 8 110. reteined after the Conquest p. 120 Bordarii p. 118 Bord-land what p. 114 118 Bordmanni p. 118 Burgh-yard what p. 22 189 Bydel what and whence derived p. 20 C. Mr. Cambdens derivation of Gavelkynd p. 3 Carropera p. 24 Carucae procariae what p. 18 rogaâ—ae p. 19 Carucage what p. 133 Charters diverse of those in Ingulphus questioned and how far and why p. 101 Chivalry and Socage two tenures comprehending all the lands in Kent and elswhere in England p. 129 Cniht in the Saxon language what p. 7 Coke Sir Edward his derivation of Gavelkynd p. 3 The Conquerours progresse proceedings after his victory neer Hastings p. 69. his Charter of Restitution of Church-lands p. 68 Conquest the times about it very rapacious p 67 Contract of marriage a Saxon form or model of it p. 75 76 Coredy what p 19 20 Corne-gavel what p. 16 Corporations anciently enâ—eoffed with lands in Gavelkind p. 8 Cotarii what p. 116. their tenements changed into Gavelkind p. 59 Cotland what p. 116 Cotmani what ibid. Custome hardly left p. 5. beginning within memory no Custom ibid. of Gavelkynd a common law in Kent p. 44 its essential property p. 49. how different from Tenure p. 144 Cyricena-Socne what p. 133 D. De rationabili parte bonorum the Writ so called whether lying at the Common Law or by Custom p. 78 91 Dome in the termination of words what signifying 106 Dover castle the Lock and key of all England p. 70 Drenches what p. 124 Drincelean what p. 29 Drof-dens what p. 117 Drof-land what p. 116 Drof-mannus what ibid Dun-land what p. 117 E. Error if setled difficult to remove p. 62. often caused for want of altercation ibid. Estates in England universally partible before the Conquest and how p. 77 78 Ex gravi querela the Writ so called where it lies 153 159 F. Fald-Socne what p. 134 Fald-worth what ibid. Fee not alienable without the Lords consent p. 8. whether anciently deviseable p. 84 naturally not deviseable and why p. 162 Fees whether any in England before the Conquest p. 103 111. become patrimonial in many places p. 162. what in their original p. 108. how changed afterwards ibid. Females capable of succession in Gavelkynd land p. 7. excluded from succession with Males p. 8 Feudastra what p. 57 Feuduto novum antiquum p. 40 Feudum the word how ancient p. 101 102. derived p. 104 Fewd in deadly fewd whence derived p. 107 Fief de Haubert and de Roturier p. 36 Filctale what p. 30 Fildale what ibid. Fines for the enfranchising of lands p. 59 Fird-socne what p. 174 Fodrum what p. 25 Folcland the nature of it p. 78 See also p. 114 126. Folgarii what p. 115 Foot-average what 116 Forgable what 30 Forland what 118 Forsohoke 31 Foster-land what 119 Francus bancus 51 178 Frankalmoigne p 40 142 Frank-fee 56 Freehold whether anciently deviseable 84 Frith-socne what 133 G. Gabella what p. 13 Gablum what p. 13. terram ponâ—â—e gablum what 14 Gabulum denariorum 26 Gafel gafol gafnl gavel what signifying 10 Gafolgylda 33 Gafol-hwitel â—6 Gaigneurs what 25 Gavel absurdly rendred gifeeal in many compounds 10 Gavelate what 31 Gavel-bred what 25 Gavel-bord what 22 Gavel-corne what 16 Gavel-dung what 21 Gavel-erth what 17 Gavelet what 31 Gavel-fother what 25 Gavelikendeys 33 Gavelkynd the words vulgar derivation proposed pag. 2. scanned p. 6. rejected ibid. a new etymon proposed and asserted p. 10. the Custome so called a Common Law in Kent p. 44. not causal of Partition in land so called p. 44. what it comprehends p. 48. the tenure so called almost universal in Kent p. 44. whether eo nomine obteining in Wales p. 53. whether a Tenure or a Custome p. 100. Prescription in it not good and why p. 44 whether Socage and it Synonimies p. 55. Grants of land in Gavelkynd p. 38. when ceasing p. 51. See more in Partition Villains Gavelkynd land females capable of it p. 7. the nature of it in point of partition scanned p. 42. no prescription good there and why p. 46. liable to Works p. 57. whether deviseable in Kent before the Stat. of Wills p. 151. descendible to collateral kinred p. 7. anciently conveyed to Gilds and Corporations pag. 8. alienable from the proper heir p. 9. all partible land not called Gavelkynd p. 10. Gavelman p. 33 Gavel-med what 20 Gavel-nohâ— what 25 Gavel-ote what 21 Gavel-refter what 22 Gavel-rip what 19 Gavel-rod what 22 Gavel-sester what 23 Gavel-swine what 23 Gavel-timber what 22 Gavel-werk what 24 Gavel-wood what 23 Ge how used with the Saâ—ons p. 38 Gecynde mis-construed by Mr. Lambard 37 Geneat what 14 Gersuma what 59 Grants of land in Gavelkynd when ceasing 51 H. Hade head hode hood c. in the termination of words what signifying 106 Haereditaments what 83 Hamsoâ—ne what 134 Hereslit what and whence derived 32 Hide land what 117 Hlaford-soâ—ne what 134 Horse-average what 116 Hotchpot 91 Hunig-gavel what 28 I. In-average what 116 Ingulfus Charters many of them questioned and how far and why 101 Inheritance the word how accepted in England 83 84. Inheritances in England universally partible before the Conquest and how 77 78 Inland what 114 119 K. Kent with other Counties conquered and over-run by Will. 1. p. 66. Servi there p. 74. also Nativi 75 Kind in Dutch what and whence derived p. 6 7 Knecht in Dutch what 7 Knight service-land naturally incapable of partition 48 Knyghren-gyld 135 Knights whether any here in England before the Conquest 123 Kynd in Gavelkynd of what signification 37 L. Mr. Lambard his two-fold derivation of Gavelkynd p. 3. whereof one rejected the other admitted p. 5. mistaken in the construction of gecynde 37 Land all in Kent and thorowout England either of Chivalry or Socage Tenures p. 38. all in England either ancient Demesne or Frank fee p. 57. and subject to Tenure 126. descended not alienable of old without the heirs consent 39. purchased alienable at
pleasure ibid. censual not censual 35. how many several kinds of land before the Conquest 114. as also since 115 Landagendman what 15 Land-boc what 112 Land-gabel what 15 Land-gafol what ibid. Leaf-gavel what p. 27 Lef-silver what ibid. Les-gavel what ibid. Les-gold and Les-yeld what ibid. Liberum feodum what 56 Lyef-geld what 27 M. Mailer what p. 34 Mailman what ibid. Mail-payer what ibid. Mala what ibid. Malt-gavel what 27 Malt-peny what ibid. Malt-shot what ibid. Manopera what 24 Mete-gavel what 31 Mirroir the book so called censured 104 Molland what 117 Molmannus what ibid. Monday-land what 120 Mortdancester the Assise so called where it lies 152 157 Mortmaine what 40. the tenure of it double ibid. N. Names to be sutable with things very convenient 11 Nativi in Kent 75 Neatland what 114 Nidering alias Nithing a nickname of what signification whence derived 65 O. Oale-gavel what 24 Ordericus Vitalis his relation of the Conquerors proceedings and progresse after his victory neer Hastings p 71 Ordinary his power of dâ—stributing Intestates goods here in England when beginning as also in Scotland and Normandy 79 Over-land what 119 Out-average what 116 P. Parceners how many sorts 42 Paroc what 23 Partition in Gavelkynd land neither from the name nor nature of it onely 44. nor from prescription 46. but partly from the nature of it and partly from custom and what 47. the antiquity of it 61. whether inherent in the land 247 150. why more general in Kent than elswhere 52 61. whether brought hither by Odo out of Normandy 61 81. whether continued there by composition with the Conquerour 62 Partition but one property or branch of Gavelkynd 48 146. out of Kent whence obteining ibid. 54 Partition of goods 79 Peny-gavel what 26 Some Phrases in Ingulphus ancient Charters questioned p. 101 Pictavensis his relation of the Conquerors proceedings and progresse after his victory neer Hastings 69. himself the Conquerours Chaplain and an eye-witnesse ib. Portfocâ— what 135 136 Portsoken what 135 Potura what 29 Prescription not good in Gavelkynd and why 44 R. Rationabili parte bonorum 78 91 Redditus albi what 34. nigri what ib. Restitution a Charter of it by the Conquerour 68 Rip-silver what 19 Rochester Castle besieged by Will. 2. 64 Rod-land what 117 Romney the Conquerours passage by it in his march to Dover 69 S. Contract of marriage in Saxon 75. the edition of it corrected 76. Several wils in Saxon 85 Scip ship in the termination of words what signifying 106 Scotale what 29 Scrude-land what p. 119 Seisin how delivered in the Saxons times 112 Servi in Kent 74 Servitus rusticana 127 Sextary-land what 119 Smithesland what 118 Soca Socha Soke Sokne what 133 137 Socage free and base 55. the derivation of the word and what it signifies 129. whether it and Gavelkynd Synonima's 55. its original 127. opposite to Villenage 139 Socage-land and service so called elswhere in Kent termed Gavelkynd 49 Socagium the distinction of it into liberum and villanum whence 141 Socmanni 137 Sokerevi 134 Sokmanry 137 Spelman Sir Henry his derivation of Gavelkynd 3 Spots story of the Kentishmens encounter and composition with the Conquerour exhibited questioned refuted 63. a meer monkâ—sh â—igment and why devised 71. when he lived 64. his commixture of falsity 63 Stigand the Archbishops deposing for opposing the Conquerour not warranted by ancient story 75 Sul-aelmesse what 132 Swilling-land what 117 Swine-gavel what 23 Swine-money what ib. Swine-paneges what ib. Swinhey what 190 T. Tainland 121 Tenure all land in England subject to it 126. how different from Custome 144 Tenure 1 by Divine service 2 in Frankalmoigne 3 in Fee ferm 4 by Petite Sergeanty 5 by Escuage certain 6 in Burgage all Socage and whence 130 141 Tenure in Mortmaine twofold 40 Tenures in Chivalry and Socage all lands both in Kent and elswhere throughout England reducible to one or t'other of them 129 Tenures in Gavelkynd new created 9. what before the Conquest 112 Terra ad gablum posita what 14 Terrae censuales what 36 Terra haereditaria 84. libera 58 84. susanna 118. testamentalis 84 86. unde nemini respondetur 120 Thegenes 1â—3 Theines p. 123 Threnges ibid. Tol-sester what 24 Truth often lost by too much altercation 62 Twy-gavel what 28 Twy-sket what ibid. V. Verstegan his derivation of Gavelkynd 3 Villani in Kent 73 Villenage opposite to Socage 139 Villeine services when first ceasing so generally in Kent 58 Villeine and Villenage in England in the Saxons time 66. in Kent since the Conquest 72. and in Gavelkynd land 73. as also before the Conquest 75 Vilienagium privilegiatum 141 Unlandagend what 1â— Utland 114 W. Wareland what 118 Weilreif what 65 Were-gavel what 28 Werk-gavel what 26 Werk-land 57 White-rents what 34 Wills in Saxon 85 Wood-gavel what 26 Words in Ingulphus more ancient Charters a sort of them questioned 101 Work-land what 115 The Writ De rationabili parte bonorum whether lying at the Common Law or by Custome 78 91 The Writ of Ex gravi querela where it lies 153 159 Y Yoke-land what 117 FINIS a Nomina si nâ—scis perit cognitio rerum Isid Oâ—ig l. 1. cap. 7. Arist 1. Phys 2. Metaphys Idem 2 Metaphys Sir Hen. Spelman in voce Gaveletum Britannia in Kent * The English Lawyer p. 73. * Interpreter in voce Perambul p. 528. a See the addition to Dr. Casaubons Treatise of Use and Custome b See Sir Ed. Coke Instit part 1. fol. 115. a. ff de Reg. Jur. l. quod ab initio c Duarenus Commenâ— in Tit. de Pactis p. 49. â— d See Kilianus Diction verb. Knecht Lamb. Peramb p. 547. Vid. Dictionar nostr Anglo-Sax iâ— vocâ— e Davies Reports Le Iâ—ish Cust de Gavelkind fol. 49. f â—racton de acqâ—iren rer dominio fol. â—4 a. g De morib Germanor h l. inter filios l. famil hercis l. si quis à liberis â—f de lâ—b agnosâ— l. si major in si l. communi divid i Lib. 1. Feud tit 6. Parag. 2. ibi Hoâ—om k Li. Hen. 1. c. 70. Glanvil li. 7. c. 3. Bracton fol 65. a. l And another in the Appendix Scripturâ— 9 m See Vulteius de Feud li. 1. c 8. nu 37. p. 341. n Glanvil lib. 7. cap. 1. o See the â— Proposition p Perambuâ— p. 544 q Anno 18 Edw. 1. r Lib. 3. â—â—l 374. a. †Conveniunt rebus nominâ— saepe suis Å¿ Nominae cum re consentiant Platâ— de Sapient Gafol what signifying Glossar verb. Gabellâ— Å¿ Peramb p. 529. t Instit p. 1. fol. 142. 2. u In Archiv Eccles Cant. †fortè heâ—eâ— Conteining four gallons so Fleta lib. 2. cap. 12. x Coke Instit p. 2. p. 58. y Spelm. Gloss in voce z Lamb. Archaion fol. 45. cap. 2. a Spelm. Gloss in voce â—avel-â—orn Corn-gavel Cavel-erth * In Archiv Archiep. Cant. Biaus Benerth a Et omnes tenentes de isto jugo
debent a rare herciare seminare de semine Archiep unam acram sine cibo quia Gavelerth Custumal of Tenham manour b Should he not rather have said Dominus ab hominibus suis c In Archiv memorat d Custumal of Monkton manour in Thanet Gavel-rip e In Armat Eccles Cant. Ripsilver Bedrip Benrip Bidrip See Spelm. Glossa in Bedellus f In Archiv Archiep. Cant. Gavel-med * In Archiv memorat Gavel-ore g In Archiv memorat h Ubi sup i Ubi sup Gavel-dung k Ubi sup Gavel-rod l Ubi supra Burgh-yard Gavel timber m Ubi sup Gavel-refter Gavel-bord Gavel-swine n Ubi sup Swine-paneges Swine-money Paroc Gavel-wood o Ubi sup Gavel-sester Tol-sester Oate-gavel Gavel-werk p Ubi sup q Ubi sup Manuopera Carropera Gavel-noht Gavel-fother Fodrum Gavel-bred r Ubi sup Å¿ In Archiv Eccles Cant. Averbred Gaigneurâ— Wood-gavel Werk gavel Swine-gavel Corn-gavel Peny-gavel Malt-gavel Malt shot Malt-peny Les-gavel t In Archiv Archiep. Cant. Les-yeld Les-geld Leaf-gavel Les-silyer Lyef-yeild u Ubi sup Hunig-gavel x Ubi sup Were-gavel y In Archiv Eccles Cant. z In Archiv Archiep. Cant. Twyâ—gavel Twyâ—sket Bere-gafol Drincelean Scot-ale Potura a In Archiv memorat b Ubi sup Filctale Fildale Gild-ale For-gavel c In Archiv Eccles Cant. d See the Mirroir p. 16. Mete gavel Gavelet Gavelate e Instit par 2. pag. 204. f In Archiv Archiep. Cant. Hereslit g See Butlers English Grammar pag. 19 34 35. Gavel-man Gafol-gylda h In Archiv Archiep. Cant. i Ub sup Gavelikendeys Mala. White-rents Blanc ferm Black-rents Black maile k See Spelm. Glossary verb. Ferma alba Coke Instit part 2. 19. and 44. l Skenaeus de verbor signifie verbo Firmarius Land Censual Land not Censual m Hotoman de verb. Feudal in verb. Manus mortua n See Spelm. Glossary verb. Feudum scutiferum Feudum ignobile o Cowels Interpreter verb. Chivalry p Lamb. Peramb p. 545. Terrae censuales Kind in Gavelkynd what signifying q As doth also Mr. Wheloc in his Latine version thereof in his Bede pag 471. Gecynd misconstiued by Mr. Lambard u This seems to thwart Glanvil lib. 7. c. 1. fol. 46. â— Potest itaque quilibet c. and Bracton â—ol 6â— b. x Cap. 66. â—ol 164. b. y Bracton l. 2. c 10. fol. 27. b. Coke Instit part 1. â—ol 94. b. z Lib. â— c. 19. fol. 4â— b. Item l. 4. fol. 263. b. Coke Instit part 1. fol. 1. b. verb Fee simple Fleta lib. 5. c. 5. parag 26. Partible land and Parceners two-fold a Fol. 278 374 418. b Lib. 7. cap. 3. c The Sâ—â—tâ—â—sh reading iâ— si fueriâ— Socegium ill ud an â—quiâ—ù◠divisum See Reg. Majest lib. 2. c. â—7 d Li. 2. c. 34. â—ol 76. â— Vid. Flet. l 5. c 9. Parag. 15. e Lamb. Peramb pag. 538. Coke upon Littl. Sect. â—65 Objection Solution f See Fulberts Dialog part 2. cap. 6. Of Paâ—ceners g Fol. 76. â— h Fo. 428. â— quem sequitur Fleta lib. 6. c. 48. parag 2. i Anno 18. dw 1. k Perambul fol. 5â—4 l Fol 36. â— and fol. 4â— â— Dilemma m Coke Instit part 1. â—ol 110. b. and fol. 113. b. Objection Objection Solution n Peramb p. 545. o Hotom de 〈…〉 l. 2 tit 5â— pâ— ag â— Item Disput c. 5. Spelm. Gloss iâ— Feud scutiâ—ero p. 260. p Peramb pag 536. q Scriptu 1 2 3. r Anno 1â— Edw. 1. Å¿ See Bracton lib. â— tract 6. c. 13. which laid to chap. 15. â—od tract the instance there seemeth to be a Kentish case concerning a widow of Gravenâ—y anciently written Gravâ—nel by Feversham t Pâ—râ—mb pag 538. u Anno 18. Edw. 1. x Fol. 374 â—â— y Skenaei Annot. in Reg. Majest lib. 2. cap. 21 27. z See 21. Edw. 1. 34. Hen. 8 26. Girald Cambrens Itinerar Camb. lib. 1. cap. 7. By the way how do our Britains claim descent from the Trojans sith with them the eldest son by prerogative of primogeniture monopolized the whole inheritance Whereof see Mr. Seld. Jan. Angl. lib 1. pag. 24. Vit. Basinstoch Hist lib. 3. pag. 207. a Rover. Illustrat Hist Monast S. Jo. Reomâ—en p 6. 18. num 168. b Coke Instit part 1. fol. 140. â— Objection Solution c As in the Appendix Scriptu 4 6 7 8 9. d Peramb pag. 593. e In which respect Free Socage is not likely to be here intended since Glanvill never mentions Free Socage but under the notion of partible land as l. 7. c. 1. and l. 13. c. 11. Liberum feodum f In Archiv Archiep. Cant. g Lib. 5. fol. 329. â— h Vulteius de Feudis lib. 1. cap. â— pag. 353. i Cowell Interpreter verb. Ancient Demesne from Fitzherbert Gasolland Werkland k terram trium aratrorum quam Cantiani Anglicè dicunt thrée Swolinges c. as in the Charter of K. Offa in the Antiquities of Canterbury p. 211. l See Spelmans Glâ—ssary verbo Lazzi m In Archiv Eccles Cant. Gersuma n Peramb pag. 533. o Peramb pag. 545. p Spot in the lives of the Abbats of S. Augustine at Canterbury cited by Mr. Lambard both in his Glossary before his Aâ—chaion verb. Terra ex scripto and in his Perambul pag. 28. To discover an old errour as acceptable as to deliver a new truth q Green boughs as Mr. Lambard hath it a likely matter at that time of the year being about November r See Cambdens Britann in Kent Å¿ Hist of Croyland Abbey t Psal 54. 17 Psal 51. 1. in marg Psal 72. 8. in marg u Testis falsus in uno redditur suspectus in omnib Farinac de tesâ—â—b q. 67. n. 3. Kent conquered by the Normans x Flor. Wigorn an 1066. Rog. Hoveden fol. 258. â— y See Order Vital ann 1070. z Hist Croyl fol. 512. b. See also Eadm Hist pag. 6. Vsus ergo c. a See the Epistle in the Appendix Scriptur 21. b Gesta Gulâ—â—l Ducâ—â— c. pag. 204. c Hist Eccles lib. 3 pag. 502. d Herewith concurreth Malmesbury fol. 116. b. where he saith Qui cum bâ—lli Hastingensis victoriâ— Castâ—lli Doâ—râ—rsis deditione terrorem sui nominis sparsâ—sset Conquaestor Londonium petiâ— c. e Matth. Paris Hist in Hen. 3. f Lib 7. â—4â— g Hist Eccles lib. 3. propè sin Lamb. Peramb pag. 30. Author Antiquit Britan. â—n vitâ Stigaâ—dâ— Archiep. Villani in Kent Godwin Câ—tal of â—â— in the life of Hubert k Cap. 2. Sect. 28. pag. 169. â—ervi in Kent l In Armar Eccles Cant. m In Archiv Archiep. Cant. n Penes Registrum Consistorii Cantuar. Nativi o Ms. in Text. Roffens p L. decem in â—i de stipul â— mâ—numissionâ—â— de justiâ— juâ— q LL Caâ—uti par â— cap. 68 75. r Archaion fol. 136. a. Å¿ Davies Reports Lâ— Trish custome de Gavelkind fol. 49. t See Cowells Interp. verb. Rationabili parte bonorum Swinburne of Testam par 3. cap. 16 18. u Bracton fol. 60. b. Sâ—ld Tit.