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
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
in that at Rochester intervening and happening in the interim of those two Statutes the one of Uses made anno 27. the other of Wills inacted anno 32. Hen. 8. a time most proper for the Custome if any such in being by iâ—s fruits the immediate free devise of lands by will at pleasure without that mediate collateral and by-way that periphrasis of Feoffments and their Uses which now was out of doors to assert and shew it self all which in my opinion do plainly tend to the dis-proof of this custome of devising lands in Kent by will before that Statute of wills As for example 1. In the will of Thomas Bourne of Tenterden dated 3. May 1538. in the Archdeacons Registry at Canterbury lib. 21. quatern 7. And where saith he there is an Act lately made to avoid uses of wills yet my mind is that Clement my son shall have my house and shop in Tenterden with th' appurtenances to him in fee. And that John Bourne my son shall have all my lands lying in the parish of Hawkherst to him and his heirs in fee. And I give to my said son John xl s. upon condition that he will abide and stand to the dividing and order of my lands as my mind is before expressed And if he will not stand to and abide the said order and division but to shift his part throwly then I will the said xl s. shall remain and be had to Alice my wife Also I give to Clement my son iij. l. upon condition that he do stand to and abide the division and order of my lands and tenements according as my mind is before expressed And if the said Clement de refuse my said order and division of my lands and shift his part throwly then I will the said iij. l. shall remain and be had to Alice my wife c. Argument Had there been a Custome for devising lands by will what needed that notice to be taken here of the Act for avoiding uses of wills And why is the Testator put to it thus to work and wage his sons to consent to that partition and division of his lands by a Legacie in money to be forfeicted upon their refusall and for choosing to shift or divide throughly as a thing in their power by Law which could not be had there been any such Custome 2. In Thomas Sayer alias Lamberds will of Feversham dated in May 1538. in the same Registry and Book quatern 9. some lands are devised away from the two female Inheritrices to be sold and a partition also made between them of other lands Whereupon a Legacie in money is given to the heirs at Law to wage them to consent and condescend to that devise and division in these words Item I will and bequeath to Isabel and Margaret my two daughters to each of them 6. l. 13. s. 4. d. to be paid to them by Benet my wife in money or money-worth in four years next after my decease upon condition that my said two daughters their Heirs and their Assigns to suffer this my present will and testament to take effect according as I before have willed And if my said two daughters their Heirs and their Assigns do this refuse that my said will can take none effect according as I before have willed then I will my said two daughters nor their Assigns shall take no benefit nor profit of none of my bequeaths to them before bequeathed c. Argument The same Quaere here as before viz. What needed this conditional Legacie in money had it not been free to them and in their power and choice whether his will for the sale of some land and for the division of other should take effect or not 3. In John Crowmers will of Pogylston Esquire dated in February 1538. in the same Registry book and quatern this clause to our purpose is remarkable Item I will that each of my three daughters Benet Elizabeth and Grace have 13. l. 6 s. 8. d. of such debt as their husbands do ow me so that their husbands be content that such lands as I have purchased go according to my devise and will or else not c. Argument The like Quaerie here as before Where also note that although he mention a devise of lands by will yet no such will is either proved or registred because probably null and void in Law The like whereof may be supposed of Sparcklins will of Thanet dated in March 1539. in the same book and Registry quarern 14. where his mansion place at Bronston is said to be bequeathed to his son John whereas no such thing appeareth by the approved will nor is any land at all devised by it The like may be said of Cacherells will of Norborne dated anno 1537. in the same Registry and book quatern 8. where some Legacies in money are charged upon a house there said to be given to the party charged and his wife whereas no such gift appeareth by the will 4. In Sarlys will dated anno 30. Hen. 8. in the same Registry and book quatern 11. where he maketh mention of his three daughters we have this clause Item I will that he my brother shall have my part of my house at Wy called Jancocks during his life if that may be suffered by the Law c. 5. In the will of William Byx of Linsted dated 1538. in the same Registry lib. 22. quatern 1. occurrs this passage I will and bequeath all the profits commodities fermes rents of all my lands whatsoever c. unto my brother germane Laurence Byx unto the timos that my sons Laurence and Nicholas come to the age of 22. years c. Also to my daughters marriage 10. l. to be raised out of those profits c. and paid by my brother Laurence Provided alway if the Law will not suffer nor admit my brother Laurence to enjoy and take up the fermes c. of my lands then I will that each of my said sons c. shall pay the said 10. l. unto my said daughters marriage c. 6. Thomas Hunt of Pluckly in his will dated in the year no moneth 1540. probably some time before the Statute of Wills that year made in the same Registry book and quatern gives to his wife the issues of his lands for life and after her death the lands themselves to his son John charged with some Legacies in money to his younger brother Anthony and his children but with this Proviso If this my will saith he stand not good and effectuall in the Law then I will that my said messuage and premisses after the death of my said wife shall remain to my said two sons I. and A. and to their heirs for ever c. 7. The like clause to this occurrs in the will of John Hubberd of Westerham dated the 23th of July 1537. in the Bishop of Rochesters Registry viz. Also if it do please God to visit my wife and all my children with death then
or the like unnatural at the least and far fetcht if not violently forc'd For first admitting Kind to signifie a male-child in the Dutch or Belgick tongue as it doth not more than a female being a word common to children of either Sex Knecht indeed with them as Cniht with our Ancestours the English-Saxons is of that signification yet is not this kind of land so restrained in point of descent onely to the males but that as in the case of land descendible at the Common Law the females in their default that is where the males are wanting are capable of succession to it and in the same way of partition with the males Nay is any of the sons dead in the fathers life time leaving a daughter behind him such daughter shall divide with her uncles in this land What then shall we admit kynd to signifie the issue be it male or female as indeed it doth either coming of the Saxon or old English cennan or cennian parere to bring forth whence with them the word or participle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the first-begotten or first-born 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the onely begotten 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 terrigena one that is born or bred of the earth yet is not this land so tied to the issue but that in default thereof i. e. where that is wanting such as be in the transversal or collateral line as in other lands descendible at the Common Law may and do inherit it as for instance when one brother dieth without issue all the other brethren may and do inherit as doth their respective issue too in case of their default jure repraesentationis but with this restriction in the nephews case succeeding with their uncle viz. that the descent is then in stirpes not in capita Neverthelesse it goeth not as the Irish Gavelkynd to all the males of the same linage for in this as in other inheritances propinquior excludit propinquum nor yet neither to all the next in one line of kinred as they pretend that are for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 taking cyn to signifie kindred as indeed it doth for then brothers and sisters both being alike neer in degree should equally inherit a thing it seems allowed by the old German custome witnesse what we have from Tacitus Haeredes successoresque sui cuique liberi c. not restraining the succession to the male issue as neither doth the Civil Law whereas we know that as by the Feudal Customes abroad where males are the females are excluded from succession so by the Common Law of England women or females shall not partake with males according to that rule laid down in the Statute called Praerogativa Regis cap. 16. Foeminae non participabunt cum masculis which by the way is understood onely of such as are in equal degree But doth â—yn or kynd here intend and denote a mans issue the Gavelkynders children What may we say then to a conveyance of land in Gavelkynd to a Guild or Corporation aggregate of many suppose an Hospital as an instance of that nature shall be produced by and by they are a dead hand how then is the etymologie in that case justified Where 's the kynd the parties issue here to make good the derivation But since by occasion mention is made of such a gift or conveyance to strangers from the proper issue or heirs let me thus far further adde that in case it be called Gavelkynd from debitum vel tributum soboli i. e. due or given to the issue as some are of opinion how comes it then to passe that as before the Statute of Wills Gavelkynd land might by deed or other lawful conveyance and that Dominâ— in this case inconsulto and invito too contrary to the nature of what with the Feudists is properly termed Feâ— be freely given or sold away from the heir by the custom to a meer stranger contrary to the old Common Law of England except in some few cases as in Frankalmoigne or in marriage with a mans daughter a reasonable part might be given with some limitations and distinctions between Land of Inheritance and Purchase as now since the Statute of Wills if not before as some of late seek to perswade us a matter which I shall reserve alâ—iori indagini it may be and daily is by devise of will and testament How is the next heirs right to this land preserved when there is that freedome of giving or devising it away Or how can this liberty that etymologie consist Yet further doth not Mr. Lambard somewhere say that no Gavelkynd partition could be challenged but onely where the custome of division had prevailed and that Gavelkynd was not tried by the manner of Socage-services but onely by the touch of some former partition If â—o no land then could properly be called Gavelkynd wherein this custome of partition had not yet obteined what shall then be thought of those new created Tenures in Gavelkynd whereof until the Statute of Quia emptores terrarum examples are very obvious and frequent in the old Records both of the Cathedral at Canterbury and of the neighbour Abbey of St. Augustines and elswhere affording many ancient grants of land in Gavelkynd to what original shall the name there be referred to any customable partition nothing lesse for where can that be found in Gavelkynd-land of novel Tenure for want of that competencie of precursory time of them necessarily presupposed to frame the custome in who conceive the name taken from such accustomable partition Moreover if partition were the thing that gave name to Gavelkynd then should all partible land wheresoever be so called but there is in parts abroad out of Kent partible land not called Gavelkynd Ergo c. For the assumption see the Stat. 32. Hen. 8. cap. 29. purposely made to change the customary descent of the land of Osweldbeck Soke or Lordship in Nottingham-shire And what doth Bracton intimate lesse in his sicut de Gavelkynd vel alibi ubi terra â—st partibbilis ratione terrae Adde hereunto that the word as to the main part of it Gavel frequently occurs in the old records of some manours out of Kent sometimes simply but for the most in composition for example Gavel-erth Gavelate Gavel-lond Gavel-man Gavel-swine Gavel-wood Gavel-rod c. of which more anon And shall the same thing contrary to that rule of Law â— 1. ff De rerum permutatione diverso jure censeri For I suppose none will render it there being out of Kent and where no Gavelkynd partition taketh place Gife-eal Nor will this derivation any better stand with Gavel where it helps to the composition of some words here used in Kent in former times at least besides that of Gavelkynd such as are all or most part of those afore-remembred to which I may adde Gavel-rip Gavel-ote Gavel-sester Gavel-bred Gavel-bord Gavel-timber Gavel-corn
it peculiarly belongs to grant out or passe land in that kind Carta Alodii ad aeternam haereditatem being there reckoned and ranked inter consuetudines Regum inter Anglos Now as our Bocland did not presently expire with the Saxons its first Authours upon their vanquishing and supplanting by the Normans so neither did our Folcland but survived and continued after the conquest and remains unto this day though not in the very name yet in the thing and substance For as aforetime the Saxons had their Ceorles Gebures Folcmen c. as afterwards the Normans their Villani Bordmanni Cotarii c. so what the former held was called Folcland Gafolland c. and was opposed to Bocland what the latter Villenage and In some sence Socage opposed to Chivalry Knight-service c. and in all likelyhood intended by that Rusticana servitus occurring in a charter of Walâ—heâ—â—nus Maminoâ— granting the â—â—thery of Bertrey to the Church of Rochester Quod si aliquid de prâ—dicto Dominio in rusticanam servitutem translatum est c. as it is in Mr. Seldens History of Tâ—thes cap. 11. pag. 313 As for the original of Socage there are that refer us for the finding of it to a notable passage in Gâ—rvasius Tilburiensis his book intituled Dialogus Soâ—ccarii who lived and wrote in Hen. 2. dayes which to bring the Reader better acquainted with the state of affairs in the disposal of our Countrey-mens Free-hold in those elder times when as the English State was new moulded I here offer to his view Post Conquisitionem c. i. After the Conquest of the Kingdome and the deserved subversion of the Rebels when the King himself with his Nobles surveyed his new Countrey a diligent inquiry was made who they were which taking part in the war agaist the King had saved themselves by flight to all these like as to the heirs of such as had fallen in the war all hope of any lands possessions and rents which formerly they enjoyed was cut off For they accounted it no small favour to escape with life under enemies But those who when summoned came not to the war or being occupied in houshold or other necessary affairs were absent when in processe of time by their constant serviceablenesse they had ingratiated themselves with their Lords without hope of succession their children onely and that but at the Lords will began to possesse Afterwards when becoming odious to their Lords they were every where expelled their possessions nor was there any that would restore what was taken away a common complaint of the Natives came to the King that being thus hated of all and bereaved of their estates they should be enforced to betake themselves to forein parts At length after consultation upon these matters it was decreed that what by their deservings and upon a lawful agreement they could obtein of their Lords should be their own by inviolable right But they should challenge nothing to themselves by name of succession from the times of the Nations subduing Which thing truly how discreetly it was considered of is manifest especially when as thus by all means for their own good they were bound from thenceforth to apply themselves by constant serviceablenesse to purchase their Lords favour Insomuch as who of the conquered people possessed lands or such like obteined them not as seeming to be due by right of succession but in recompence of his deservings or by some intervening agreement Hence we see how precariously matters stood with the generality of our poor countrey men in point of estate in those dayes and with what observance and obsequious respect they were fain to carry themselves towards their conquering Disseisors to purchase many times but a Modicum of what had lately been their own and when they had it see withall upon what kittle rottering uncertain terms they held it The relation comes from a very good hand and is so authentike as for ought I know it may be credited for it self But if any man expect further confirmation I suppose it may be found in Bracton lib 1. cap. 11. num 1. where he hath this passage and is in part seconded in it by Fleta lib. 1. cap. 8. Fuerunt etiam saith he in Conquestu liberi homines qui liberè tenuerunt tenementa sua per libera servitia vel per liberas consuetudines cum per potentiores ejecti essent postmodum reversi receperunt eadem tenementa sua tenenda in villenagio c. The same Authour fol. â—6 and elswhere tells us of a sort of Tenants ad similitudinem Villanorum Sockmannorum per conventionem de gratiâ Dominorum licet hoc esset ab initio villenagium c. a passage if not totidem verbis yet in substance often repeated of him in my judgement intimating thereby that practice of the Tenants currying favour and complying with their Lords whereof in Tilburiensis and their obteining thereby to better their estates and by degrees to creep out of Villenage into a kind of Socage a Tenure thus grown to that latitude and so comprehensive as it helps to make that Dichotomy into which all the Kingdomes lands in the hands of common persons in point of Tenure are resolved Chivalry being the other Now being of such note a little further enquiry after the antiquity of the thing and etymologie of the name to clear the truth in both wil not do amisse as I conceive in this discourse of Tenures By the common and received opinion of our Lawyers derived I suppose and first suckt from that great Ornament of their Profession Bracton the term is said to come to use the Authours own words à Socko inâ—e tenentes quitenent in Sockagiâ— Sockmanni dici poterant â—o quod deputati sunt ut videtur tantummodò ad culturam c. This of Bracton is strongly backt by Littleton in his book of Tenures where treating of Socage he saith that the reason why such Tenure is called and hath the name of Tenure in Socage is this because saith he Socagium idem est quod servitium Socae Soca idem est quod caruca c. A Soke or a Plough In ancient time for so he adds for further confirmation before the limitation of time of memory a great part of the Tenants which held of their Lords by Socage ought to come with their ploughs every of the said Tenants for certain dayes in the year to plow and sow the Demesne of the Lord. And for that such works were done for the livelyhood and sustenance of their Lord they were quit against their Lord of all manner of services c. And because that such services were done with their ploughs this Tenure was called Tenure in Socage c. Thus Littleton followed by the generality of our common Lawyers and others since not without a kind of popular errour as under favour I conceive and with
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-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
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
Gavel-reâ—ter c. whereof also I shall intreat further by and by Is it then lastly to be supposed that the lands meer descent in this kind to all the heirs alike supposing a plurality of heirs was all the regard those Ancestours of ours had to sway and regulate their judgement by to whom the name the term doth owe its first original Was that in probability ground enough to satisfie them of the congruity and sutablenesse of the name to and with the nature of the thing named as names we know should be Vix credo I doubt it for my part In brief then to recollect what hath been said 1. If females are capable of this succession as well as males where the male issue faileth 2. If collateral kinred are capable thereof as well as those in the descendent line where such heirs are wanting in both which kinds Gavelkynd land differs not from that at the Common Law 3. If Corporations may hold land in Gavelkynd 4. If such land may be passed away to meer strangers from the right heirs 5. If none may properly be called gavelkynd-Gavelkynd-land where an accustomable partition hath not made way for it 6. If there be partible land elswhere out of Kent that is not called Gavelkynd 7. If Gavel the fore-part of the word found in some Records of land out of Kent and of others in Kent will not bear the derivation of it from Gife-eal without absurdity 8. And lastly if names are to be imposed with respect to the nature of what is named then is Gavelkynd after these mens premised derivation in some sort a very scant narrow and partial in other a most incongruous and improper term to expresse the nature of the land by Surely there was somewhat more peculiar to Gavelkynd-land and of more note and eminencie in it better serving to distinguish it from other kind of land than this derivation of theirs seems to intimate and which first gave occasion to the imposition of that name upon it which leads me to my other the positive or affirmative proposition asserting the true sense and construction of the term and shewing whence it was at first imposed and afterwards continued Wherein I must confesse Mr. Lambard was as happy to go right in the latter of his two conjectures as he was before unluckie to misse of the right in his former yet in this passively unhappy though that the former through the advantages afore-mentioned wholly took and was accepted of all whilest the latter was received and embraced of none but no great marvel since whilest some through ignorance could not judge of others haply for company would not question so plausible a derivation But to the purpose To such as are any thing vers'd in Saxon monuments Gafol is a word very obvious but varied sometimes in the Dialect as being written now 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 anon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I shall give you a few instances where it occurrs and in what sense Tribute mentioned in the 17 of St. Matthews Gospel verses 24 and 25 as also in the 22 of the same Evangelist verses 17 19 is in the Saxon Translation of the Gospels turned 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the 25 chapter of the same Gospel at the 27 verse it serveth to expresse what there in our modern English Translation is called in some books advantage in other usury agreeable to that in the Saxon Psalter Psal 54. vers 11. where usura in the Latine in the marginal version or reading of the word is rendred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 occurring in the first of King Withreds Laws of Sir Henry Spelmans Edition in the first Volume of the Councils pag. 194. is of that learned Knight expounded to us by Redditus vel Pensiones as it is again in his Latine Version of Pope Agatho's decretal Epistle pag. 164. of the same Councils by Redditus In an old Sanction of King Edgars recited by Mr. Selden in his Notes upon Aedmerus pag. 153. what is there in the Latine read solitus census in the Interlineary Saxon Version we find rendered there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereunto I might adde heaps of instances taken from the Saxon Laws the Mare clausum and elswhere but I forbear to exspatiate and to be short Gafol is a word which as Gablum in Doomsday-book the skilful in the Saxon tongue with Sir Hen. Spelman elswhere turn by what Gabella is expounded abroad viz. Vectigal Portorium Tributum Exactio Census in Latine but in English with Verstegan Tribute Tax or Custome to which with Mr. Lambard and Sr. Edw. Coke let me adde Rent witnesse besides the former quotations what occurrs in an ancient will or deed of one Athelwird the Donor of certain land at Ickham in Kent to the Cathedral at Canterbury in the year of mans redemption 958. where you may read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. And anon after again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. The former of which passages under favour of the skilful in that language I shall render thus in our modern English After his dayes or death Eadrith if he live shall enjoy or use it yeilding that rent which is imposed on it that is v. pounds and every year or yearly one dayes farm or victual unto the Covent that is xl measures called Sextaries of ale c. And the latter thus With the same or like Rent that herein is appointed Let me adde what in another like Record both for time and place occurrs thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is And after both their dayes or deaths let Eadsith the Arch-Bishop if he survive them have or take these lands or else his Successour for the time being unlesse some friend of theirs by or with the Arch-Bishops favour may continue to hold that land at or upon the accustomed rent ur upon what other contract or condition may be had or made with the Arch-Bishop then living or for the time being I shall adde but one instance more from the grant of Bocking a known place in Essex to the same Cathedral by one Ethelrich in the year of Christ 997. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is And I also give those two hides of land that Eadrith renteth or hireth yearly for half a pound So that to me it seems clear that ponere terram ad gablum is as much as to hire or let out land by or for rent or farm and by consequence terra ad gablum posita taken in its proper and genuine acception is land hired or letten out to farm or for rent In the latitude of the word it comprehends besides all censual or tributary land as also what we call customary land in that sense wherein Consuetudines Customes denote Services and so takes in all Rent-service land which with our Saxon Ancestours who called the
circumcisionis Domini xx d. But so called I trow when compounded for in money otherwise upon the same ground Malt-peny as the old Customal of the same manour frequently nameth it So called peradventure in relation to some greater rent or service arising and paid out of the same land that this at some other part or season of the year I guesse hereat by an old Customal of Charing manour where indeed I found it so and so Les-gavel quasi Lesle-rent or Lesle-service I take it to be the same that in the Customals and Rentals of some other manours I find written Lesyeld and Lesgeld unlesse it be mistaken for the next Leaf-gavel thus occurring in an old Accompt-roll of the Church of Canterbury Et de xii l. iij. d. ob de annuo redditu assis cum Leafgabulo ad terminum S. Martini which I conceive to be the same with what in a like Record of Hathewolden now Halden manour in Kent is called Lef-silver Et de xviij d. de Lef-silver in Hathewoldum The old Custumal of Tenham manour in Kent calling it Lyefyield thus explains it Tenentes de Waldis non possunt arare terras suas ab equinoctio autumpnali usque festum beati Martini sine licentia Et ideo reddunt annuatim dimidiam marcam ad festum S. Martini sive fuerit Pessona sive non Et vocatur Lyes-yeld Whereby it seems to be a tribute paid by certain Wealdish Tenants for liberty to plow their grounds during a certain season of the year viz. tempore Pessonae which because of some prejudice that might thereby redound to the Lord in his Pawnage was not permitted without his leave Gabulum mellis as the old Rentals of Chistlet manour in Kent seem to term what some ancient Accompt-rolls of Otteford and other manours call Hunigaved both one and t'other signifying Rent-honey Item de Weregavel vj. d. aliquando tamen plus aliquando minus Thus in the Custumal of the Canterbury Cathedrals manour of Leisdowne in the Isle of Shepey It seems to be a rent paid in respect of Wears or Kiddels to catch fish withall pitch'd and plac'd by the Sea-coasts and until Magna Charta forbade it in some rivers too whereof see further in Sir Hen. Spelmans Glossary verbo Kidellus and in Sir Edw. Cokes Institutes part 2. pag. 38. and elswhere In an Accompt-roll of the manour of Reculver in Kent anno 16. Edw. 3. this service in the charge there thus occurrs Idem respondet de 814 dimid ped clausur hayag fac circa manerium ex consuetudine unde de Twygavel 200. I meet with it elswhere also but with explanation no where Taking liberty of conjecture I conceive it to be some double kinde of service by the Twy preposed as elswhere Twysket an imposition upon the Tenants of Aldington manour by Romney mersh for maintaining the Sea-coasts there and other like defences against inundations is termed Duplum as thus Computus de duplo Wallae quod vocatur Twysket So the Accompt-roll of that manour in the sixth year of St. Edmunds Archbishoprick Is termed of our learned Glossarist verb. Berewica by Tributum hordeaceum elswhere viz. verb. Gabella by Redditus hordeaceus You shall finde in the 60th of King Ina's Laws in Mr. Lambards Archaion If it were not Rent-barley I should take it for the Drincelean occurring as in the last chapter of the Leges Presbyterorum Northumbrensium in Sir Hen. Spelmans Councils pag. 502. So also in the 87th of King Cnutes Laws in the Archaion and in this latter place rendred in the old Version in Brampton just as Oryncelan mistaken for Drincelan in the old Glossary at the end of Hen. 1. Laws by Retributio potus If so it seems to be the same with what was afterwards called Scot-ale whereof you may read in Matth. Paris the Charter of the Forest Bracton the Mirroir and elswhere King Hen. 2. in his charter to the citizens of Canterbury acquits them of it Ita quod saith he Vicecomes meus Cantuar. vel aliquis alius Ballivus Scotalam non faciet It 's sometimes called Potura and was a contribution by the men and Tenants towards a Potation i. e. a Drinking or as some yet speak an Ale provided to entertain the Lord or his Bailiffe withall coming to keep Court or the like raised by a proportion or rate more or lesse according to the better or meaner condition In an old Custumal of Southmalling manour in Sussex in that part of it intituled Bortha de feld I read as followeth Item si Dominus Archiepiscopus fecerit Scotall infra boscum quilibet terram tenens dabit ibi pro se uxore sua iij. ob vidua vel Kotarius j. d. In the Extent of the manour of Terring to give you another instance anno 5. Edw. 1. this Scotale service is thus remembred Lewes Memorandum quod praedicti tenentes debent de consuetudine inter eas facere Scotalium de xvj d. ob ita quod de singulis sex denar detur j. d. ob ad potandum Bedello Domini Archiepiscopi super praedictum feodum Bracton saith It is sometimes called Filctale sol 117. b. which our learned Glossarist in voce correcting reads Fildale and is in some sort followed by Sir Edw. Coke Institut part 4. pag. 307. With the Varia lectio before Bracton I should rather read it Gildale and then indeed as it comes neerer the other Scot-ale so with that better answers to our present Bere-gafol Gild Gafol and Scot being as it were Synonyma and univocal Observed to be alwayes paid by the Tenant per avail to the mesne Lord not to the chief and thence called in some old records and deeds Foris-gabulum quasi extra vel praeter gabulum quod Domino capitali debetur just like the French mans Surcens Will you have an example John then the son of Richard at Horsfald by his deed dated anno 1242. gives to Warin of Stablegate a parcel of land to be holden to him and his heirs or to whomsoever he shall give sell or assigne it a clause without which by the account of those elder times land was not alienated from the proper heirs paying to the Prior and Covent of Christ-church Canterbury Lords it seems of the Fee certain annal rent and hens and to the Feossor and his heirs j. d. yearly de forgabulo c. Some other instances of this kind might be added but I must contract passing over Metegavel whereof mention is made in the old Glossary at the end of Hen. 1. Laws and there in Latine rendred Cibi gablum Now a word or two of Gavelet This I must tell you was no Rent or Service but betokeneth a rent or service with-held denied or deteined causing the tenements forfeiture to the Lord whence those words of Fleta reciting the Statute
this custom from Normandy or that Odo was wrought upon by any pattern of that Countrey to set it up amongst us but rather found it here at his coming Supposing therefore such an universal custome here in England before and at the Conquest it will concern us next to make enquiry how it came to passe that when all the Realme beside hath in a manner discontinued it Kent onely reâ—â—iâ—s it in that gâ—â—iâ—â—al manner at lâ—aâ—â— whereby improcesse of time it is become as the Year-book quoted of Mr. Lambard phraseth it as it were a common Law there The answer must be but conjectural since Records herein fail us of all light as well as Histories all but Spots who for the reasons pre-alleaged shall be none of my Resolver Will you have the common answer Why then they say the Conquerour abrogated this custome in all parts of the Kingdome save onely in Kent which obtâ—ined to continue it by composition with him when they met at Swanescomb But having formerly said I hope enough in answer hereunto I will seek further and try if some other more probable cause may not be found for it The Conquerour then I will suppose consented to the continuance of this custome generally throughout the Kingdome in all I mean but Knight-service land the descent whereof to the eldest son alone partly for his own and the Realms better defence and strengthening and partly for the upholding and maintenance of gentile families I suppose none doubts to be lesse ancient than the Conquest for so much of it at least as is of ancient Tenure as Mr. Lambard desires to qualifie it Nay and seems to give expresse allowance to it without distinction of lands by that 36th of those Laws in Ingulphus copy which after the Conquest he granted to the people of England and were indeed as the title of them intimates the Laws of the Confessour his predecessour or rather say some of the Confessours predecessour Canutus Si quis intestatus obierit liberi ejus hereditatem aequaliter dividant So runs the Law according to Mr. Seldens version from the original French or Norman Some haply may take this as intended onely as a rule for goods not for lands too But to that it may be replied that the word hereditatem there if of that acception then as since and at this day will not admit of that construction since by the common opinion both of elder and more modern Lawyers nothing passeth with us here in England jure haereditario but onely Fee and that Hereditaments are such things as do naturally and of course descend to the heir and neither to the Executour or Administratour as chattels do whence that of Littleton Sect. 1. Feodum idem est quod haereditas answering to that of Bracton long before him Feodum est id quod quis tenet ex quacunque causa sibi haerâ—dibus suis See to this purpose Glanvill lib. â—3 cap. 27. But here we meet with an objection By this argument will some say you restrain and tiâ— up the Constitution to lands onely excluding goods or chattels as our Lawyers call them from what ground see in Sir Hen. Spelmans Glossary verb. Capitale to which add Freherus his Notes upon the Decalogue published anno 1610. Precept the last To construe it I must confesse or of either singly or alone were in my judgement too much to restrain and streighten it and in â—ffect to conclude it a lame and imperfect Constitution ordering the intestaâ—e dead mans estate and the disposal thereof but to halves as we say wherefore I conceive that to take the word Inheritancâ— here to comprehend both as I suppose aehâ—e doth in that 68. of Canutus Laws whereto this here if it were not taken thence may seem to have some reference is not more reasonable than to understand it eiâ—her of chattels or lâ—nds singly seems to me otherwise Why but then say they you admit of a poâ—eâ— of devising Inheritance by will and consequently make Fâ—e and Free-hold deviseable and that by Law arguing from those words Si quis intestatus ob erit c. â—rue disâ—inguishing times for â— take it nothing was more usual in those times I mean before the Normâ—n Conquest and this if you maâ—k it is oâ—iginally a Law of the Confessours or rather of Canutus his predecessour than to devâ—se and give lands away by will though therein they receded from their first copy the German custome of Nullum testamenâ—um a provision afterwards received into the body of the Feudal Law which thus hath it Nulla ordinatione defuncti in feudo manente vel valente It was then I say a usual thing with their Lords consent at least to dispose of their land by will especially their Bocland thence haply amongst other titles given it as being sometimes termed and turned Alodium otherwhile terra hereditaria often terra libera not seldome called terra testamentalis that is as an old Leiger-book in Guildhall London expounds it terra quam homo potuit in lâ—cto suo languens legare with this limitation notwithstanding that such Bocland were not by precaution in the original gift or grant liable to that or the like restriction in point of alienation occurring in the 37th of King Alfreds laws which neverthelesse extended bâ—t to strangers a man being there forbidden to alienate his land of that nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. â—xtra cognationem vel progeniem or in the Civil law phrase extra familiam from his own kinred or family whence perchance it came afterwards to passe that in such terragentilitia the heirs concurrence was required and used in the alienation Instances of this kind of disposing land by wâ—ll I mean might be given in abundance but a few may serve the turn To passe over as obvious because publike King Alfreds will at the â—nd of his acts and life by Asserius though I might here perhaps not impertinently take up that of Regis ad exâ—mplum c. to let that passe I say as also for the like reason to omit Byrhâ—riâ—ks will of Mepham in Kent extant in the Perambulation pag 492. whereunto if need were I could add many more examples as well out of St. Albans private History now of late made publike by my deceased friend Dr. Watts as from the Records of the Church of Canterbury whereof besides the copies of some whole wills I have by me several extracts To let all these passe I say I shall onely instance in a will or two one of a very eminent peâ—sonage an Etheling Prince Ethelstan by name the son of King Ethelred which I shall set before you in the Appendix Scriptura 18 as Scriptura 22 the other with some imperfections and misprisions here and there I confesse but through the Transcribers fault that entered them in the Leiger and by reason of his ignorance it should seem of
the Saxon tongue and character which I dare not undertake to rectifie Thus for practice As for law besides that power in all men in those times to devise land in general by their wills without any violence deduced and concluded from that 68 of Canutus laws providing how a mans whole estate the Lords Heriot onely excepted shall be disposed of in case he die intestate we have a more expresse law for it afterwards the 76th I mean for such land at least as is there termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. as Mr. Lambard construes it terraomni lite soluta or as it is turned in Jornalensis and the 35th of the Confessours laws de Heretochiis in Mr. Lambard fol. 136. a. terra acquietata comitatus testimonâ—o Let me illustrate it by a passage in a Charter of King Edmund to Aelâ—here his Thane in the year 941. of certain lands and possessions there called Mulanton running thus Prout pater ipsius Aelsheri priorum temporibus nostrorum sub contestamine totius popularis Senatus sua pecunia ab illo ab alio prout tunc temporis mos erat adquâ—sivit In effect it was as I conceive if not the same with Bocland called terratestamentalis not onely because deviseable but also in regard of the publike testimony of the Shire required and used in the passing of it otherwise than by will such land like that mentioned of Mr Selden Tit. of Hon. par 2. cap. 5. pag. 631 and there said to be holden quâ—etè absque omni câ—lumnia or like that passed or conveyed as in Sir Henry Spelmans Councils pag. 319. and 333. as was unquestionâ—bly a mans own as upon the purchase or grant of it confirmed and assured to him in the legal way of those times such haply like those of latter times passed by Fine the conveyance whereof was recorded and inrolled or entred in the Shiâ—e-book in publike Shire moâ—e after proclamation there made for any to come in that could lay challenge or pretend right unâ—o it whence not improbably our manner of recording conveyances sometimes as in Canterbury in the Hundred sometime in the Burgemoâ—e otherwhile in both whereof I am not unfurnished of instances Thus for that kind of land Now for Bocland and how the Law stood there Sir Henry Spelman I confesse is cleer of opinion against all power of aliâ—naâ—ion in the owner and that of necessity it must â—e left to descend to the heir and thence is called terra â—aereditaria grounding upon that 37th of King Alureds laws which he there recites Under favour that Law cleerly makes for the contrary allowing unto the Possessour a power of alienation saving where his hands are tied from it by an expresse provision and prohibition to the contrary from those the Ancestour or who else it came unto him from a caution in my apprehension of the same nature with an exception which as Civilians use to say firmat regulam in non exceptis And as for its name of terra haereditaria and the argument upon it it is easily answered as thus so called it was to distinguish it from Folcland otherwise called Gafolland wherein the Tenant being but as it were a Lessee Usufructuary or Fermour and having no propriety upon his death or other expiration of his term it reverted to the Lord and descended not upon the heir as Bocland did at least ought to do being because his own in propriety hereditary if not alienated by him in his life time as it might be in regard it was as well terra libera as haereditaria and so called which Folcland never was however Sir Henry Spelman in a place so assert likening it to Allodium which indeed was liberum and consequently capable of alienation either by gift or sale to whomsoever the owner pleased a property appropriate to Bocland thence otherwise called especially abroad Allodium whereof more hereafter But further to cleer the point of Boclands being alienable and in the power of the owner to dispose of at pleasure have here a pregnant passage for our present purpose borrowed from a Charter of Archbishop Wâ—fred who died about the yeer 830. of the gift of certain houses to his Successours in the See of Canterbury thus speaking 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is in our modern English If any man shall say that this Mansion is not more in my power or the power of my heirs to use than of the rest of the Society or Covent then let him know that it never was Christ-church land nor any mans Bocland before it was mine and then let him further think and consider by other mens Bocland as well in priviledged places as without whether they may grant away their own land or possessions or give it for or in their lives times as pleaseth them or wherefore mine should be of different kind to those of other men Thus the Charter as I understand it Bocland then I conceive we may conclude alienable by the owner of it both by act or grant in his life time and at his death by will in the times I mean before the Conquest But afterwards that custome of devising it by will ceased as did withall the descent of land generally by equal division amongst all the sons For as the English Laws and Customes in general from that time suffered a daily eclipse and declination by degrees so this in particular saving where they were more tenacious of it than elswhere and in such places whereof London seemeth to be one as by special priviledge were suffered to keep it up languished and was at length supplanted by that other kind of descent which now regularly takes place throughout the most part of the Kingdome Insomuch as where this partible descent cannot to uphold it self justly plead antiquity and ancient custome it quite fails and falls to the ground And to this passe I take it was it come in Glanvill and Bractons dayes who therefore harmoniously deliver this as a requisite and essential property in land of such descent that it be not onely by nature partible as it is by being Socage if we may interpret Bractons si haereditas partibilis sit by Glanvills si fuerit Socagium but withall that by custome and of old it hath actually been parted Now the Kentish men it seems the Commons there I mean like the Londoners more careful in those dayes how to maintain their issue for the present than their houses for the future a contrary respect to theirs who have of late by Act of Parliament rid their lands of this Custome as to that property of Partition were more tenacious tender and retentive of the present Custome and more careful to continue it than generally those of most other Shires were not because as some give the reason the younger be as good Gentlemen as the elder brethren c. an argument proper perchance for the partible land in Wales
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
submission to better judgements shall endeavour to evince without check I hope for presuming to control so great so many and those eminent Lawyers whereas here I oppose them not in point of Law but onely in matter of fact The first exception then that I take against this opinion is its inconsistencie with many several species of Socage-land or land said to be of Socage kind or tenure such as Petite Sergeanty Escuage certain Frankalmoigne Fee-ferm Burgage By Divine service and the like which have no manner of relation to the Plough or matters of Husbandry as originally they say Socage had and therefore still reteins the name though the cause whereupon it first grew be taken away by changing the service into money So Littleton An exception this warded off by the Patrons of the present derivation with a distinction of a double kind of Socage the one that so called à causâ the other ab effectu and to this latter sort Socage in effect are these of them referred as one would say Socage at large because partaking of the like effects and incidents with Socage But this distinction carries with it no great antiquity being questionlesse sought out since Bractons time as necessary to uphold that of his and his followers derivation of Socage from the Plough otherwise so inconsistent with these Tenures Not but that I hold them to be Socage with the common opinion but from another cause as I conceive whereof anon In the mean time I have a second exception against the derivation which is this that though that of the Plough may be the chief service wherein Socage is conversant yet are the Sycle and the Syth the Fork and the Flail and many such like attendants also upon it and concomitant services with it in Socage-land to derive then Socage ab aratro that being but one species of Socage-services is as improper under favour as at this day to define Feudum comprehending whatsoever fee is constituted for any lawful and honest service although not military by what the Feudists call Clientela militaris because a chief part of feudal service is military and that of old Fees for the most part were granted out militiae causâ an error into which Vulteius challengeth Hotoman to have fallen in his definition of Feudum thence which my Author cals a definition of a genus by a species concluding it not logical A third exception taken to it may be this that if Socage-land be so ancient under that notion as King Alfreds time as some will have it who tels us that in those dayes Socage-fee was divided between the heirs males why then was it not rather from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying what Soc never did with them a Plough whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for Plough almes being a pension of a penny imposed upon every Plough in the name of Almes called Sulh-age or Sul land to say Plough-service-land or how could it in those times be called Socage in the sence by this derivation intended when the word Soc if it signifie a Plough as it doth a Plough-share being in that sence a French word cannot in any reason be thought to have taken place here I mean in the Saxons times and so long before the French by their Conquest and intermixture with us following thereupon had prevailed to suppresse and extirpate the English language But if it cannot pretend to so much antiquity as being a term as well in the original as in the sence Norman or French then probably they would not have imposed it without some pattern some precedent of their own Countrey as used there in like case but doubtlesse this was wanting their term for land of this condition being Tenement Villein Villein Fief Fief Roturier Heritage Roturier and the like Besides had the term been of their imposing with intent to have it signifie Tillage-service Charâ—â— being the usual word with them for a Plough fetch 't from Carâ—â—â— whence their Carucata terrae for a Plough land noâ— heard of here with us until their coming hither more likely it had been called Carucagâ— or the like as a certain Tribute by our Hen. 3. imposed by the Plough was therefore called Caruage Carucage and the like My next and last exception is from Fleta's derivation of Socmanni where speaking of the Kings manours he saith In hujusmodi verò maneriis erant olim liberi homines liberè tenentes quorum quidam cum per potentiores è tenementis suis ejecti fuerant eadem postmodum in Villenagium tenenda resumpserunt quia hujusmodi tenentes cultores Regis esse dinoscuntur eis provisa fuit quies ne sectas facerent ad Comitatus vel Hundredos vel ad aliquas inquisitiones assisas vel juratas nisi in manerio tantùm dum tamen pro terra quorum congregationem tunc Socam appellarunt hinc est quod Socmanni hodie dicuntur esse A Soca enim derivantur c. Where though he say that the Socmanni were Cultores Regis yet he sayes not that thence they were called Socmanni but that their Congregation their Assembly or Company was called Soca and hence it is faith he that they are termed Socmanni for they are derived from Soca c. Thus he Now if from Soca an Assembly of Husbandmen then not from Soc Sock or Soke a Plough To come now to that which I conceive to be the right and genuine derivation of the term Socage To expresse a Liberty Immunity Franchise Jurisdiction Protection Priviledge c. our Saxon Ancestours were known to have and use a word somewhat variously written of them viz. Soc Socne Soken and the like Hence to proceed to instances Sanctuary the priviledge sometime so called was of them termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 With them also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signified a jurisdiction to keep the peace 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an immunity from service in war or from warfare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Lords protection to his man or Tenant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being of a double sence signified both a priviledge or protection against assaults upon a man in his own house or under his own roof and a liberty or franchise to hold plea thereof with power of animadversion by mulct or fine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 imported a liberty or priviledge of Faldage debarred and denied unto Tenants in times past and by the Lord for the inriching his own Demesne lands reserved to himself Hence their word Faldwrth for him that enjoyed such a liberty Shall I now give you one example from the Normans Nullus enim Socnam habet impunè peccandi say the Laws of Hen. 1. cap. 24. speaking of Barons having Soch And to enlarge yet a little further touching Soc c. as it signified a Liberty Immunity Franchise Priviledge Jurisdiction c. so withall a Territory
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
Civilians is called Ager vectigalis as being liable onely to so much yearly rent without any other service regularly unlesse Fealty suit of Court or the like according as the Feoffment may run and having nothing to do with the plough to become Socage This makes Escuage certain another tenure of no relation at all to the plough but quatenus Escuage as it is simply Escuage eo ipso of Knight-service because by being certain it draws him not forth to any corporal service in war to be also termed Socage whilest contrarywise what is properly called Escuage that namely which is uncertain and so called because besides its subjection to Homage Fealty Ward and Marriage it is uncertain how often a man shall be called to follow his Lord into the wars and again what his charge will be in each journey from being liable I say to this uncertainty of duty is Knight-service Hence fourthly it is that Burgage a tenure no way smelling of the plough or tillage being currant and conversant onely in cities and towns because holden for a certain annual rent becomes with the rest Socage Hence also our Kentish Gavelkynd considered in its name or term betokening censual land of no affinity with the plough or plough-service because I say holden per certa servitia comes to be called Socage The like might be said of Frank ferme and other the remaining species of Socage-land one and all as properly so called as rightly and with as much reason referred to that head of our English tenures as that which for its plough or tillage service is said to be more peculiarly so called standing not in need of that distinction which the common opinion useth to bring them within the compasse of it called ab effectu because of like effects and incidents belonging to them with Socage tenure a distinction by this derivation rendred frivolous and needlesse and under favour therefore as fit to be laid aside as their assertion is to be retracted who to vindicate the reteining of the name of Socage as of use onely to distinguish that from a tenure by Knight-service affirm that the cause wherupon the name of Socage first grew viz. Plough-service is taken away by the change of such service into money whereas presupposing our present derivation of Socage to be admitted both name and cause still continue Thus much for Socage a term that to me first occurrs in Glanvill never as yet in any elder Record In a Roll of Accompts of the Archbishop of Canterburies mannours for the sixth year of Archbishop Baldwyn Glanvills Coaetanean and Companion in his voyage and expedition with King Richard the first to the holy land which by computation was the year of our Lord 1190. it occurs by the name of Soggagium thus Super Soggagium London remanent xx d. and this in Croydon manour there amongst the expences and deductions following the receipts of that year Which I mention not as conceiving it no elder than Hen. 2. dayes yes I rather hold Socmannus Socmanria and Socagium to be relatives and consequently that where the one occurrs the rest are implied but Socmannus is obvious in Domesday-book and lesse ancient therefore I perswade my self Socage and Socmanry are not Nunc age carpe viam susceptum perfice munus Now therefore to come to our Quaere whether Gavelkynd be a Tenure or a Custome and give it an answer I confesse there are that in some sort hold the negative as who will have it to be a Custome accompanying the land where it obteineth rather than a Tenure whereby the land is holden holding the whilest the Tenure to be Socage And of this opinion Mr. Lambard doth more than seem to be Now between Tenure and Custome in this case with us the difference as I collect stands thus admit it onely a Tenure and then the nature of the land is not concerned in point of descent so that in some cases as the escheat of it by Death or Cessavit to the Lord that holds over by Knight-service or to the Crown by forfeicture in treason and the like it ceaseth to be any longer of Gavelkynd-nature in point of descent and goes not as before to all but onely to the eldest of the sons according to the course of the Common Law whereas if it be a Custome following the nature of the land then it is say they inseparable from that land where it obteineth insomuch as notwithstanding this escheat or whatever other alteration of the tenure it remains as before partible among all the sons or other heirs where sons are wanting But to the point To prove Gavelkynd to be a â—enure I shall not need I think to multiply authorities the generality of those ancient deeds that I have seen for the granting lands in Gavelkynd whereof some are exhibited in the Appendix are wont to have their Tenendums the usual and more proper place for the creation of a tenure in any kind of grant thus phrased Tenendum either ad or in Gavelikendam or the like The office recited of Mr. Lambard in his Peramb pag. 540. found after the death of Walter Culpepper is alike phrased Tenuit in Gavelkind being a much repeated passage in it The Statute 18. Hen. 6. cap. 3. in terms calleth it a tenure taking knowledge that there were not at that day within the Shire above 40. persons at the most which had lands to the yearly value of xx pounds without the tenure of Gazelkynd and that the greater party of this County or well nigh all was then within that Tenure And this alone which I shall add may evince and clear it to be a tenure that since the Statute of Quia emptores terrarum anno 18. Edw. 1. prohibiting the subject to let land to be holden of himself as there are not to be found any more grants of land pro homagio sâ—rvitio so neither in Gavelkynd For brevity sake I will urge no more authorities of this kind Being thus then apparently a tenure how cometh it to passe that we so usually call it the Custome of Gavelkynd seldome either making or finding mention of Gavelkynd but with that adjunct and under that notion of Custome Indeed the property of equal partition is and hath so long been of that eminencie in our Kentish Gavelkynd and it so much celebrated for that property that as if it were the sole and onely property of it all the other in respect wherof this land may as well be called Gavelkynd as for this are as it were forgotten and that onely carries away the name from its fellows whereas that of Partition as hath been said before is but one among the many other properties and customes in our Kentish Gavelkynd such as Dower of the Moyety Losse of Dower by marriage before or after assignement Not to forfeict lands for Felony Power of alienation at fifteen years of age and the rest obvious
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