in the Kentish Custumal And because this of Partition amongst the rest properly depends of Custome as thwarting the course of the Common Law in like case hence the Quaere grew at first whether Gavelkynd were a Custome or a Tenure Indeed a very improper and incongruous Quaere and occasioned by the want of that distinction of the Genus from the Species which through inadvertencie are here confounded Gavelkynd being the Genus Partition the Species So that if we shall but reddere singula singulis this doubt will quickly have an end Gavelkynd generally spoken of and in grosse is the Tenure particularly and with reference to this Partition it is a Custome accompanying the land of that Tenure Or if you rather will Gavelkynd is the Tenure Partition and the other properties the Nature Which Solution gives occasion of another Quaere and that indeed a main one Whether namely this Custome of Partition in Gavelkynd-land be so inherent in the land and so inseparable from it that notwithstanding the Tenure of the land be altered yet the land shall stâ—â—l retein this property No more I take it than the rest of the fellow-properties as much depending upon Custome as that and for which the land may deserve the name of Gavelkynd as well as for that and therefore some perhaps will say it shall retein them all indifferently I shall not here ingage as an opponent onely invited by this fair occasion crave leave to propound Academically what in like case I find delivered by others conducing in my judgement to facilitate the resolution leaving it to such as have more will to debate and better skill to decide the question than my self to give a fuller and more peremptory resolution in the point I may I take it not improperly state the question thus Whether the person in this case shall follow the condition of the land or on the contrary the land that of the person The former it seems takes place in Paris the French Metropolis by the custome of the place whence that of Choppinus treating of those Customes pag. 316. Parisiensi iâ—â—em municâ—piâ— saith he quod gentilitiâ pariter sulget Nobilitate clarorum virorum usus familiae herciscundae minus est obnoxius invidiae Ubi scilicet non persunarum sed fundorum conditio nobilis plebeiave partes assignat To which he adds a little after Hâ—â—d ideâ— tamen dividundarum haereditatum ratiâ— immutata est Parisiis cum nobiles fundos plebeii nobiliter ignobiles aequojure generosi invitem partiantur To the same purpose our Authour elswhere â—els us that priseo quodem Gâ—llici fori usu plebeius fundus haud ideo pristinam exuebat conditionem quòd à recto ipsius Domino aere comparatus esset Ni ejus nomine comparator in clientelam se unà cum superiore fundo suo ad patronum contulisset which his margin elswhere records thus Anciennement les rotures aâ—quises par le scigneur direct se partageoient returierement si non que le dit acquereur les comprint en l'adveu de son fief le rendant au superieur Thus went it seems the more ancient Custome in those parts But tempora mutantur The case of latter times is altered there as the same Authour gives us to understand in both the last fore cited places At postâ—rioris aevi Jurisprudentia mutatis calculis novam invexit servientis fundi unionem tacitam consolidationem cum altero dominante ac parem adeo utriusque qualitatem praenobilem Ni si illius emptor subinde contestationem interposuisset contrariae voluntatis Thus in the former place In the latter thus Nostrae tamen aetatis moribus diversum obtinuit censuales nempe obnoxios agros solâ per rectum Dominum acquisitione prorsus uniri in unúmque redigi cum praedio dominante nisi protinus emptor contrariae voluntatis testationem interposuisset The effect of both is this that Censual lands by purchase coming unto the direct Lord the Lord of the Fee or Over Lord aâ—e ipso jure Feudal and shall accordingly descend as thereby re-united to the Fee unlesse the buyer at the time of purchase do protest to the contrary Will you please to hear his reasons Unionis nempe vis illa eò producitur ut ignobile praedium militari junctum nobilitetur eque plebeio as soâ—â— vectigalibus obnoxio transeat in feudâ—lis clientelae sortem liberiorem Thus he De moribus Parisior pag. 58. Much what one with that in the other place De Domanio Franciae pag. 41. Quoniam tacita praediorum unione confusa erant jura servitutum census solarii vectigalis Cum rei propriae nulla superforet servitus exâ—ndéque vectigalis sundi qualitas esset immutata Thus he whom see also if you please De Domanio Gallicâ— pag. 168. num 2. Also pag. 284. num 1. To whom add Hotoman De Feudis lib 1. tit 5. parag 2. in fine You see by this how the present case stands in some parts abroad Here at home as it seems by the very Custumal of Kent in two several cases therein specified the descent of Gavelkynd-land is changeable and the land becomes unpartible first namely when by escheat happening either by Death or Cessavit next when by the tenants voluntary surrender it comes into his Lords hands who holds by Fee of Haubert or by Grand Sergeanty both which Mr. Lambard takes to be Knight-service To which may be added two other cases which occur in an ancient Kentish Eire in the Exchequer ann 29. Edw. 1. where enquiry being made and the question propounded to the Kentish men how many ways gavelkynd-Gavelkynd-land might be altered and delivered from the ordinary and custumary descent answer was given by four instancing in the two former and to them adding those other two namely 1 Per licentiam Regis by the Kings licence and 2. Per chartam Archiepiscopi by the Archbishops Charter Against this and on the other side inter alia may be opposed what is pleaded in the fore-remembred controversie between Burgade Bendings and the Prior and Covent of Christchurch Canterbury wherein the Prior in barr of Burga's claim to the moyety of his and the Monks manour in Franc bank pleads Quod Dominus Rex qui manerium illud deait praedecessoribus suis non tenuit illud nomine Gavelkinde Whence admitting the plea for Law naturally seemeth to result this double consectary 1. That the King may hold land in Gavelkynd 2. That the King holding land in Gavelkynd in case he shall grant it away to any religious house in puram perpetuam eleêmosynam in Frankalmoigne it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the religious men shall infeoffe with it Much more doubtlesse might be said in the point as well pro as contra but I shall leave it to be further argued by Lawyers adding onely in a word what upon the whole
Frank Fee then being opposed to Ancient Demesne which is Socage cannot it self be Socage Nor will Bractons distinction of Socage into liberum and villanum applied to that difference in Mr. Lambard of free and base Socage by which the one should consist of money and the other of base services be warranted as himself there observes from the ensuing Inquisition some lands being therein denoted to be of Gavelkynd-nature which neverthelesse do yeild none other but money alone and none there of that nature charged with works besides that of Suit of Court improperly called Works as not coming under the notion either of Manuopera or Carropera to which double head all works of this kind are wont to be referred Hence let none perswade themselves that Gavelkynd-land was not or by its nature is not liable to Works for albeit that 66. of King Ina's Laws in the Archaion seemeth to counter-distinguish Gafâ—l and Wâ—rk and though moreover Gafolland and Werkland occurr in some manours out of Kent as of a distinct and different nature yet both servile and opposed to what there is called terra libera denoting I suppose Free Socage yet most certain it is that both Gablum and Opera do often meet and are found in Gavelkynd-land Witnesse the old Custumal of Monkton manour in Thanet belonging to the Church of Canterbury mentioning the particulars of what servile works the Tenants there stood charged with for the 18 Swolings so many plough-lands I take it holden of the Monks in Gavelkynd Witnesse also this passage in King Johns Charter made to Hubert the Archbishop for the changing gavelkynd-Gavelkynd-land into Knights-Fee at large exemplified by Mr. Lambard Peramb pag. 531. Xenia Averagia alia opera quae fiebant de terris iisdem convertantur in redditum denariorum aequivalentur Witnesse in the third and last place not to multiply instances in a case so cleer an Inquisition found after the death of Isabella de monte alto widow sometime of Orpington recorded in a Lieger of that Cathedral whereof expect a copy in the Appendix Scriptura 10. 'T is true indeed at this day and time out of mind haply from Richard the seconds time such servile works properly called Villein-services have been as they still are intermitted or rather quite ceased insomuch as all our Gavelkynd-land in point of service now differs nothing from Free Socage as it stands described and defined of Bracton being such ubi fit servitium in denariis to use his own words all the Tenants burthen his whole service being onely servitium crumenae pecuniary such as payment of money for rent suit of Court and such like nay in many grants of land in Gavelkynd that I have seen I find no tie at all upon the Tenant no covenant or contract between his Lord and him to require of him any such base services there being ut communiter and regularly a reservation onely of rent in money suit to his Court or the like yet I must tell you as a reason hereof in my judgement that though Gavelkynd in the genuine sence sound land letten for gable cens or rent consisting chiefly in denariis whence in an old Custumal of Eastry manour in Kent I read In eodem manerio mutati sunt octo Cotarii pro Gavelkende Medlefâ—rm tenet unum messuagium tres acras quae solent esse Cotar modo reddit xl d. de gablo and so divers more which haply will be better understood if I add what occurrs in an old Accompt-roll of the Archbishops manours for the year 1230. in Charing Bailives receipt Et de xiij s. iiij d. de fine Cotariorum ut Coteriae suae ponerentur ad redditum yet commonly upon such grants in Gavelkynd the Tenant pareâ—d with such a sum of money to his Lord in gersumam i. e. in consideration of that grant and by way of Fine as may seem equivalent to the base services otherwise imposeable and to have been charged upon that land and upon the Tenant in respect thereof or if not probably as in Gavelkynd-land by vertue of King Johns fore-mentioned Charter turned into Knights-fee he had his rent inhanced and augmented to an equivalent value of his services to be redeemed the cause in chief of the excuse of Gavelkynd-men from base services of latter times and at this day being I conceive no other than the Tenants buying them out and consequently the change of the same as Littleton hath it of Socage in general into money by the mutual consent of Lord and Tenant whereof expect some examples to be presented in the Appendix Scriptur 11 and 12. In the mean time have here an instance or two taken from some old Accompt-rolls of the Archbishops manours of this and that summe paid received for enfranchising the land from customes and services and changing it into Knights-fee whereof in the last-remembred Accompt-roll and in the receipt of Ceâ—ring now called Charing manour there Et de ij s. ix d. ob de incremento redditus Thomae de Bernfeuld de termino Sancti Johannis ut terra sua de caetero sit libera de consuetudinibus per feodum militis Et de xiiij d. quad de incremento redditus Thomae de Bending ut terra sua sit libera per feodum militis de termino S. Johannis And so some others there as also in Maidstone and other Archiepiscopal manours and such may well be reckoned among lands of that sort which in a copy of the book of Aid cited by Mr Lambard are noted to be holden in Knights-service per novam licentiam Archiepiscopi But to return to our Gavelkynd which if not extensive to Free Socage they may seem to stand in need at this day of some other character to keep them unconfounded than Bracton in the definition and description of the latter doth propose in regard the service of both equally consisteth in money To recapitulate now what hath been delivered concerning partition in Kentish Gavelkynd-land It is as hath been shewed neither from the name nor from the nature of the land alone nor from prescription nor yet from any particular custome that this property there proceedeth but partly from the nature of the land and partly from custome not I say a particular one but a general custome extended throughout the whole County in censual land or land letten for Cens or what is all one with it Gavel or Gafol to say holden in Fâ—ef or Inheritance Roturier as called in Normandy and other parts of France the Antiquity whereof and how beginning in Kent and why more general there than elswhere shall be the argument of our next Discourse PROPOSITION III. The Antiquity of Gavelkynd-custome in point especially of Partition and why more general in Kent than elswhere MAster Lambard inclines in his opinion to conceive this custome brought hither out of Normandy by Odo Earl of Kent and bastard brother to King William the Conquerour and that we
matter I conceive of the case I would ask then if our Kentish Gavelkynd-land be partible quatenus Gavelkynd I expect no other than an affirmative answer If so and admitting withall that such property in Gavelkynd-land owes it self to a custome accompanying land of that nature yet I suppose it shall enjoy that property no longer than the land it self continues to be Gavelkynd which some hold it is not being once returned and come back again into the Lords hands the King especially being Lord that granted it out in Gavelkynd or of whom it formerly held in Gavelkynd because then as cessante causâ sollitur effectus so by reason of the unity of possession the Usu fructus I cannot well English it being consolidated and made one with the property that property of being censual land which Gavelkynd denotes and which cannot be intended of any land holden in Demesne and not in service ceaseth and is quite extinguished there being required to make the land censual a censual Tenant one that holdeth by censual services such as here is none especially in the Kings case when once the land is come home again reduced to its first principles and re-united to what like Fief is opposed to service-service-land the Lords In-land or demesne-Demesne-land as in the case of a common Lord or to the Crown à quo omnia feudamoventur â—riuntur the Fountain whence all Tenures are derived as in the Kings case from whence by the letting it out in Gavelkynd it was formerly severed To this purpose see Petri Gregorii Tholosani Syntag. Jur. univers lib. 6. cap. 5. num 11. But of this also hitherto for I hasten to an end PROPOSITION V. Whether before the Statute of Wills 32. and 34. H. 8. Gavelkynd-land in Kent were deviseable or not IN answer whereof holding with those which resolve it in the negative howbeit for my part not studio partium but veritatis amore I shall oppose to such as hold the contrary what arguments are brought against them and their opinion in a case of Mr. Halls of Kent verbatim as I find them published in print which here follow with their title Reasons and authorities to prove that gavelkind-Gavelkind-lands in Kent are not nor were anciently deviseable by Custome FIrst it is a rule in Law that an Assise of Mortdancester doth not lie of lands which are deviseable by Testament c. and this appears by divers books as namely 4. Edw. 2. Mortdanc 39. 22. Assiz 78. and Fitz. Nat. Brevium 196. 1. But it appears by Bracton fol. 276. b. that an Assize of Mortdancester will lie of Gavelkind lands in Kent and so it appears by divers ancient Records quod vide in Itinere Johannis de Berewicke c. Anno 21. Edw. 1. Copia fol. 1 7 22 24. in Itinere H. de Stanton Anno 6. Edw. 2. Copia fol. 1 8 9 10 13. By which it appears plainly that an Assize of Mortdancester lies of Gavelkind lands in Kent But an Assise of Mortdancester doth not lie of lands within the city of Canterbury because lands are there deviseable by Custome as it appears in dicto Itinere H. de Stanton fol. 3 4 6. And it is evident that in the city of Canterbury which was anciently part of the county of Kent there was a special custome used to devise lands lying within the liberties of the city and to prove their wils in the Court of Burgmote in the same city But there needed no such Custome if all the Gavelkind lands in Kent had been deviseable c. Also the most part of the ancient Wills of Gavelkind lands in Kent before the Statute of Uses did mention Feoffees of the lands devised c. as appears by the Register-books of Wills at Canterbury and at Rochester whereby it doth appear that the Devisors were Cestâ—y que uses and not owners of the land devised and although some wills of land make no mention of Feoffees yet there were Feoffees of the same land as will appear by the deeds of Feoffment thereof and twenty to one do mention Feoffees c. Also Sir John Fineux chief Justice de R. B. Sir Robert Read chief Justice de C. B. and Sir John Butler Justice c. devise their lands in Kent before the Statute of Uses and make mention of Feoffees c. which had there been a Custome to devise no question they had taken of it c. Also many ancient deeds of Feoffment of lands in Kent referr to Wills sc Dedi concessi c. A. B. omnia terras tenementa c. ad opus usum perimplendi ultimam voluntatem meam c. Also there are wills to be found of lands in diverse other Counties of this Realm whereby lands were devised before the Statute of Uses and no mention made of any Feoffees as appears in the Register-books of the Prerogative Court and in diverse other places and yet without doubt they bad Feoffees seised to their uses c. or else they could noâ— there devise the same Also the houses and lands in Cities and Burroughs which were deviseable by Custome were reckoned inter catalla sua but it were strange that all the Socage Lands in Kent which are conceived to be Gavelkind should be reckoned inter catalla c. And in the Register fol. 244. there are fourteen several Writs of Ex gravi querela and none of them make mention of any County c. nor of Gavelkind but secundum consuetudinem Civitatis or secundùm consuetudinem Burgi c. And if Gavelkind Lands be deviseable by Custome c. the Devisee can have no Writ of Ex gravi querela because there is none before whom the Action or writ should be brought c. Also Mr. Lambard in his Perambulation writing of the Customes of Kent maketh no mention of any Custome to devise lands nor the Treatise called Consuetudines Cantiae in the old Mag. Charta fol. 147. which without doubt they would not have omitted if there had been any such Custome c. Also between the Statutes of 27. H. 8. of Uses and the Statutes of 32. of H. 8. of Wills there were very few Wills made of lands as appeareth by the Register-books before mentioned and the most of such Wills as were then made being but few in number do make mention of Feoffees Also the common practice ever since the Statutes of Wills hath been such that if a Will be made void for a third part by a Tenure in Capite of part of the land c. that third part shall descend to the Heir and the Devisee shall not have it and this appears by special Liveries in the Court of Wards proving the same and by diverse witnesses that can prove the same to be so c. And in Sanders case of Maidstone in Anno 9. Jacobi Regis all the lands were devised by Will and after the Will was avoided for a third part by reason of a Tenure in capite of a small
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-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
rent or service paid or done for such land 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was by a transposition of the syllables called and known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Except the Churle or Countrey-man that occupieth censual land as one would say now Except the Country Fermor or the like He seems by this to be properly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. one that had no land of his own such a one as had being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. terrae proprietâ—rius a landed man as the word is I take it to be rendred not Viator a way-faring man or the like as some have guessed But to keep us to our Gafol within and under which term and notion not onely the generality of rent and customary whether payments or services was comprehended and comprised simply but what we at this day call Rent-corn Rent-honey Rent-barley and the like the special and particular rents and services I mean by the custome of some manors yeilded by the Tenants to the Lords thereof though now for the most part turned into moneys were in elder times in composition called Corn-gavel Hunig-gavel Bere-gafol c. Without impertinencie I hope I shall here present the Reader with a list of as many of them as with much content to my self I have ransacked old Records to find out for this purpose with an assay of mine own at their several expositions and they are divisible into two sorts the one beginning the other ending with Gavel Both of them follow Gavel-corne Gavel-erth Gavel-rip Gavel-med Gavel-ote Gavel-dung Gavel-rod Gavel-tymber Gavel-refter Gavel-bord Gavel-swine Gavel-wood Gavel-sester Gavel-werk Gavel-noht Gavel-fother Gavel-bred Wood Gavel Work Gavel Swine Gavel Corne Gavel Peny Gavel Malt Gavel Les Gavel Leaf Gavel Hunig Gavel Were Gavel Twy Gavel Bere Gavel For Gavel In the list of the Rents and Services reckoned up in a Lieger-book of the Church of Canterbury as charged upon that Churches manour of Adesham in Kent this in particular thus occurrs Item de Gavel-corn 66. sum Doubtlesse it is the same with that in a composition made between the Abbot and Covent of St. Augustines at Canterbury and their Tenants of Minster and Hengrove in Thanet anno 19. Hen. 6. called Corn-gavel and there thus described Et quod quatuor Swillingae dimidia quarta pars unius Swillingae residuae tenebantur tenentur de praedictis Abbate Conventu per fidelitatem relevium per redditum servitium vocatum Corn-gavel viz. reddendo eisdem Abbati Conventuâ— successoribus suis annuatim in festo S. Michaelis Archangeli de qualibet Swillinga earundem 4. Swillingar Quindecim quarteria quinque buschellos ordei palmalis 15 quarteria 5 buschellos avenarum de praedicta medietate quarta parte unius swillingae secundum ratam portionis ordei avenarum illas medietatem quartam partem contingentis defeernd cariand ad costas expensas praedictorum tenentium usque ad granarium dictorum Abbatis conventus infra monasterium S. Augustini praedictum vel per servitium reddendi pro qualibet acra dictarum quatuor swillingarum in â—od festo S. Michaelis octo denarios pro dictis medietate quarta parte unius swillingâ— secundum ratam portionis illas medietatem quartam partem unius swillingae de praedictis ordeo avena contingentis in casu quo praedicti tenentes praedictum or deum avenam in eodâ—m festo in formâ praedictâ non solverint Thus the composition whereby it is apparent what Gavel-corn signifies namely as before was intimated Rent-corn In an Accompt-roll of the Arch-Bishop of Canterburies manour of Reculver in Kent anno 29. Edw. 1. this service under the title of Arura occurrs thus Item respondet de xxxv acris de consuetudine arandi Gavelherthe In an old Customal of Gillingham manour in Kent of about that age I read thus Item sunt ibi quinque juga quodlibet arabit unam dimidiam acram ad semen frumenti seminabit herciabit dimidiam acram ad semen ordei herciabit unam virgatam ad avenam herciabit warectabit dimidiam acram ad ordeum nihil recipient vocatur istud opus Gavelerth This then it seems is a certain Tillage-service like the arura in Bracton fol. 35. b. due by the Tenant holding his land upon terms of plowing c. a certain quantity more or lesse of his Lords Demesnes not alwayes performed in kind but bought out and redeemed sometimes with money Et de 10. sol de 10. acris de Gavelerth relaxato hoc anno quoth an old Rental sans date of the Arch-Bishops foresaid manour of Reculver It was of some affinity as with the French Poictovines Biaus so also with that which Mr. Lambard calling Benerth expoundeth by service which the Tenant doth with his cart and plough With his plough indeed and also with his harrow but not that I find with his cart it being a meer tillageservice as Gavelerth is alwayes performed precariò as the Frenchman saith precairement upon request and summons in aid and for the help and ease when need was of other Tenants bound to do the like de gablo i. e. as I conceive ex debito and without summons and with allowance of more than regularly was afforded in the other service a coredy i. e. diet or victual fometime called Benebred during the employment Glanvils precarias carucarum forinsecarum lib. 8. cap. 3. may hence be understood Matthew Paris in his History of England pag. 895. of the last Edition making mention of a Breve inauditum as he there cals it i. e. an unheard of Writ issued by Hen. 3. recites this as a part of it Similiter inquiratur de carucis precariis which by the learned Authour of the Glossary at the end of the work is thus illustrated Erant precariae saith he speaking of several sorts of Ploughs quas scilicet in necessitate aliqua eminentiori colonus uaus à proximo precario mutuabatur Hence the phrase in many old Custumals and Rentals of plowing this or that quantity of the Lords land by his Tenant de prece de precaria ad precariam and the like In precariis carucacum in auxilio herciandi vj. sol viij den saith an old Accompt-roll of Saltwood manour The meaning of such passages in records of that kind as this arant preces semel ad conredium Curiae c. and the like may hence be pick'd out It took name this of Benerth I conceive of the Saxon bene postulatio as Mr. Lambard and before him Jornadensis translating the Saxon Laws turn the word occurring in the title of the eighth of King Ina's Laws as Sir Hen. Spelman doth by Rogatis Concil tom 1. pag. 583.
circumcisionis Domini xx d. But so called I trow when compounded for in money otherwise upon the same ground Malt-peny as the old Customal of the same manour frequently nameth it So called peradventure in relation to some greater rent or service arising and paid out of the same land that this at some other part or season of the year I guesse hereat by an old Customal of Charing manour where indeed I found it so and so Les-gavel quasi Lesle-rent or Lesle-service I take it to be the same that in the Customals and Rentals of some other manours I find written Lesyeld and Lesgeld unlesse it be mistaken for the next Leaf-gavel thus occurring in an old Accompt-roll of the Church of Canterbury Et de xii l. iij. d. ob de annuo redditu assis cum Leafgabulo ad terminum S. Martini which I conceive to be the same with what in a like Record of Hathewolden now Halden manour in Kent is called Lef-silver Et de xviij d. de Lef-silver in Hathewoldum The old Custumal of Tenham manour in Kent calling it Lyefyield thus explains it Tenentes de Waldis non possunt arare terras suas ab equinoctio autumpnali usque festum beati Martini sine licentia Et ideo reddunt annuatim dimidiam marcam ad festum S. Martini sive fuerit Pessona sive non Et vocatur Lyes-yeld Whereby it seems to be a tribute paid by certain Wealdish Tenants for liberty to plow their grounds during a certain season of the year viz. tempore Pessonae which because of some prejudice that might thereby redound to the Lord in his Pawnage was not permitted without his leave Gabulum mellis as the old Rentals of Chistlet manour in Kent seem to term what some ancient Accompt-rolls of Otteford and other manours call Hunigaved both one and t'other signifying Rent-honey Item de Weregavel vj. d. aliquando tamen plus aliquando minus Thus in the Custumal of the Canterbury Cathedrals manour of Leisdowne in the Isle of Shepey It seems to be a rent paid in respect of Wears or Kiddels to catch fish withall pitch'd and plac'd by the Sea-coasts and until Magna Charta forbade it in some rivers too whereof see further in Sir Hen. Spelmans Glossary verbo Kidellus and in Sir Edw. Cokes Institutes part 2. pag. 38. and elswhere In an Accompt-roll of the manour of Reculver in Kent anno 16. Edw. 3. this service in the charge there thus occurrs Idem respondet de 814 dimid ped clausur hayag fac circa manerium ex consuetudine unde de Twygavel 200. I meet with it elswhere also but with explanation no where Taking liberty of conjecture I conceive it to be some double kinde of service by the Twy preposed as elswhere Twysket an imposition upon the Tenants of Aldington manour by Romney mersh for maintaining the Sea-coasts there and other like defences against inundations is termed Duplum as thus Computus de duplo Wallae quod vocatur Twysket So the Accompt-roll of that manour in the sixth year of St. Edmunds Archbishoprick Is termed of our learned Glossarist verb. Berewica by Tributum hordeaceum elswhere viz. verb. Gabella by Redditus hordeaceus You shall finde in the 60th of King Ina's Laws in Mr. Lambards Archaion If it were not Rent-barley I should take it for the Drincelean occurring as in the last chapter of the Leges Presbyterorum Northumbrensium in Sir Hen. Spelmans Councils pag. 502. So also in the 87th of King Cnutes Laws in the Archaion and in this latter place rendred in the old Version in Brampton just as Oryncelan mistaken for Drincelan in the old Glossary at the end of Hen. 1. Laws by Retributio potus If so it seems to be the same with what was afterwards called Scot-ale whereof you may read in Matth. Paris the Charter of the Forest Bracton the Mirroir and elswhere King Hen. 2. in his charter to the citizens of Canterbury acquits them of it Ita quod saith he Vicecomes meus Cantuar. vel aliquis alius Ballivus Scotalam non faciet It 's sometimes called Potura and was a contribution by the men and Tenants towards a Potation i. e. a Drinking or as some yet speak an Ale provided to entertain the Lord or his Bailiffe withall coming to keep Court or the like raised by a proportion or rate more or lesse according to the better or meaner condition In an old Custumal of Southmalling manour in Sussex in that part of it intituled Bortha de feld I read as followeth Item si Dominus Archiepiscopus fecerit Scotall infra boscum quilibet terram tenens dabit ibi pro se uxore sua iij. ob vidua vel Kotarius j. d. In the Extent of the manour of Terring to give you another instance anno 5. Edw. 1. this Scotale service is thus remembred Lewes Memorandum quod praedicti tenentes debent de consuetudine inter eas facere Scotalium de xvj d. ob ita quod de singulis sex denar detur j. d. ob ad potandum Bedello Domini Archiepiscopi super praedictum feodum Bracton saith It is sometimes called Filctale sol 117. b. which our learned Glossarist in voce correcting reads Fildale and is in some sort followed by Sir Edw. Coke Institut part 4. pag. 307. With the Varia lectio before Bracton I should rather read it Gildale and then indeed as it comes neerer the other Scot-ale so with that better answers to our present Bere-gafol Gild Gafol and Scot being as it were Synonyma and univocal Observed to be alwayes paid by the Tenant per avail to the mesne Lord not to the chief and thence called in some old records and deeds Foris-gabulum quasi extra vel praeter gabulum quod Domino capitali debetur just like the French mans Surcens Will you have an example John then the son of Richard at Horsfald by his deed dated anno 1242. gives to Warin of Stablegate a parcel of land to be holden to him and his heirs or to whomsoever he shall give sell or assigne it a clause without which by the account of those elder times land was not alienated from the proper heirs paying to the Prior and Covent of Christ-church Canterbury Lords it seems of the Fee certain annal rent and hens and to the Feossor and his heirs j. d. yearly de forgabulo c. Some other instances of this kind might be added but I must contract passing over Metegavel whereof mention is made in the old Glossary at the end of Hen. 1. Laws and there in Latine rendred Cibi gablum Now a word or two of Gavelet This I must tell you was no Rent or Service but betokeneth a rent or service with-held denied or deteined causing the tenements forfeiture to the Lord whence those words of Fleta reciting the Statute
as it is used besides in composition in each importing Cens i. e. Rent either in money provision or works And being thus far advanced in the dispatch of our positive Proposition what is the true sence of Gavelkynd I must now desire the Reader in the next place to observe and consider with me that as there are divers sorts of land to be found both in this County and elswhere by the nature of their Tenure not Censive or Censual nor of the kind to pay or yeild Gavel that is such Rent or Rent-service whether in money provision or works as ariseth from ignoble base and plebeian Tenures in which onely Gavel is conversant to those of whom such lands are holden those namely holden in Alodio in Frankalmoigne or Mortmaine as called also abroad because yeilding the Lord no profit as being in a dead hand in Knights-service in Frank fee and the like so is there also such as that holden in Socage or Burgage Tenures or the like though free which contrariwise is Censual liable to Rent in some one or more of the kinds premised To distinguish therefore if not generally what land is from what is not of Gafol gilden nature or of the kind to yeild or pay Cens yet specially to put a difference between what alone is properly and anciently called Fee Knight-service land and it under which double head is comprised the generality of our whole Countries lands answering as to that dichotomy of Chivalry and Socage Tenures whereunto all the land in England in the hands of common persons is referred so also to that known distinction of their lands in Normandy from whence as some surmise we received our Gavelkynd whereof more hereafter unto Fief de Haubert and Fief de Roturier that is the Noblemans Fee and the Husbandman or Ploughmans Fee for distinction sake I say of Censual or rented land or Rent-service land from what like Fee properly so called being holden per liberum servitium armorum yeilded no Cens Rent or Service whether in money provision or works the former of the twain was called Gavelkynd that is as Mr. Lambard rightly in the second of his fore-mentioned conjectures of the kind or nature to pay or yeild rent or land holden not properly in Fee but as the Feudists are wont in this case to distinguish contractu censuali as being letten out with or under condition to pay Cens or Rent or with a reservation of Cens or Rent like unto those in the charters of the Conquerour and his son Hen. 1. the one to Battell the other to Reading Abbeys expresly called Terrae censuales and there opposed to Fee witnesse this provision occurring in each charter Terras censuales nec ad feudum donet nec milites nisi in sacra veste Christi faciat nec de possessionibus Ecclesiae quisquam teneat aliquid feudaliter absolutum sed ad censum annuum servitium Abbati monachis debitum See Clement Reyners Apostolatus Benedictinor in Anglia tract 2. pag. 137 154. It is no simple word Gavelkynd but a compound of Gavel and kynd the latter syllable whereof to proceed on to that cometh and is contracted of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a word frequently occurring in the Saxon Sermon set forth and published by Mr. Fox in his Acts and Monuments and again of late by Mr. Lisle as an Appendix to another Saxon piece a Treatise of the old and new Testament in the version or translation of the word they both concur rendring it in our modern English Nature To give an instance or two 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. after true nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. it is naturally and the like Iâ— will peradventure be objected that Mr. Lambard in his Perambulation pag. 495. meeting with the word several times in the Saxon will of Byrhtric of Mepham in this often repeated passage there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alwayes translates it after the old Latine version in Textus Roffensis within that kinred and in a marginal note against it calleth it a kynd of gift in tayle But for reply if I may have leave freely to deliver my sence that version is not good for under favour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there importeth not as that Translation would kinred but rather kynd nature sort quality or condition and consequently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there if rightly is thus I take it and not otherwise to be Englished viz in that kind or after that nature or upon the same terms or with the same condition having relation if you mark it to the tie upon the next precedent legacies gifts or devises of other land charged either with alms or with rent in way of alms payable thereout by the Legataries or Devisees for the Devisor or Testator his souls health Had it been otherwise ted books the following passage in a Charter recorded in a Lieger of the often alleaged Cathedral at Canterbury of certain land all which the party had in Southweâ—k given to that Church by Norman le Wautier in the year of Christ 1204 which thus speaketh Et quia praedicta terra de libero catallo proprio perquisito meo fuit non de aliqua hereditate parentum meorum ideo Deâ—minde S. Thomam Martyrem Sanctos Cantuariensis Ecclesiae conventum monachorum ejusdem heredem meum legitimum inscribo hac mea carta in perpetuum constituo To which many more such like might easily be added from the same Promptuarium The Fâ—udists in this case distinguish between Feudum novum antiquum as may be seen in Vulteius de Feudis lib. 1. cap. 10. num 73. In the next place the Reader may please to observe with me that as Britton distinguisheth of a double tenure in Mortmaine the one called Almoigne or Aumone simply the other Frankalmoigne describing the former to be a gift in alms but not free alms because saith he a certain service is reteined or reserved to the Feoffor cap. 66. fol. 164. â— so this in hand is no alienation in Frankalmoigne the Fâ—offers it seems not intending to give the land in that absolute manner but in token of Seigniory to reserve something of service to themselves phrase their gift not in puram eleemosynam or in liberam eleemosynam one of which words viz. either pura or libera is some say others say both essential to the making it a tenure in Frankalmoigne and to the excusing it from service with which the next following words and to Gavelkynd could not have consisted pure alms or Frankalmoigne excluding the return of all but divine services and burthens they phrase it not therefore I say in puram or liberam eleâ—mosynam but onely in perpetuam eleâ—mosynam and to Gavelkynd by the former of these words investing the Hospital with an estate in perpetuity by the latter and the Reddendo following saving and reserving
and condition of Gavelkynd-land being not onely subject and liable to what the Civilians in their phrase are wont to call Judicium or Actio familiae herciscundae De communi dividundo the Feudists Adaequatio Paragium we in our language term it Coparceâ—ary Land-shifting and the like but withall so subject to it as that partition doth alwayes accompany land of that nature and is indeed as inseparable from it as the contrary from Knight-service land Whence then is it Before I answer observe first with me for an answer to these passages in Bracton that as before each of them in one place we have his si haereâ—itas partibilis sit ab antiquo divisa so likewise after them in another place his tenementum partibile inter plures cohaeredes sempeâ— solet dividi ab antiquo Whereby conferring place with place for reconciling Bracton to himself we may plainly understand what is meant by those two meâ—ne or intervening passages in Bracton namely that not the bare nature of the land but ancient customes joynâ— concurrence with it is intended and of him implied in each place though not expressed to render the land or inheritance partible The like help under favour must be allowed Glanvill to reconcile his Sciendum autem quod si quis liberum habens Socagium plures habuerit filios qui omnes ad hereditatem equaliter pro equalibus proportionibus sunt admittendi lib. 7. cap. 1. fol. 46. a. to his Si vero fuerit liber Sokemannus tunc quidem dividetur hereditas inter omnes filios quotquot sunt per partes equales si fuerit Socagium id antiquitus divisum eod lib. cap. 3. fol. 49. a. Briefly were it so that Gavelkind-land were partible by vertue either of the name or nature of it without accession and concurrence of Custome then all lands as soon as granted out in Gavelkynd whereof examples are obvious and till the Statute of Quia emptores terrarum frequent were ipso facto partible contrary to that common and received ground whereof before that none are such i. e. partible with us except that descending for want of males to females but what are so by custome As then not to the name so neither to the nature of Gavelkynd-land alone is such partition owing And is it then to Custome or Prescription For the latter 't is clearly repugnant to what is before laid down by way of grounds or principles it being a known rule in our Law and obvious in our books that Prescription in our Kentish Gavelkynd as it is not wanted so neither is it admitted to come in plea. What say we then to Custome Surely since neither to the name or nature of the land nor to Prescription nor yet neither to the Common Law so diametrically opposite to it to that I mean to Custome it is or I know not else to what that this partition mainly owes it self Agreeable whereto is that of Mr. Lambard where he saith 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 the Socage services but onely by the touch of some former partition But if so then an objection here meets us resolved into a question thus What shall then be said to Gavelkynd land of novel Tenure upon the grant of lands â—ill then happily holden in Demesne to one or more persons in Gavelkynd as was usual before that Statute of Quia emptores terrarum and until when a man might create in his land what Tenure he pleased granting out as Bracton hath it in Socage what he held in Knight-service and è converso what I say shall we resolve concerning the point of partition here since no particular custome or usage of partition had ever took place to give to such division either foundation or precedent We are here me thinks threatned with a Dilemma for either the land was not partible and why then called Gavelkynd or if partible yet not by custome being but newly turn'd from some other Tenure into Gavelkynd and wanting both Time and the daughter of it Usage the essentials of a custome to render it partible that way Here then is work for an Oedipus but the resolution of the main doubt to which I will now more closely apply my stile will at once clear both Truth is then that 't is neither from Custome alone nor yet from the nature of Gavelkynd-land alone that this partition springs but partly from the one partly from the other and so from both together It must be granted that Gavelkynd land ex sui naturâ is partible thus far and in this sence that by an inherent quality it is capable of partition by Custome that indeed may and doth render it partible as Knight-service land properly it cannot by reason of a repugnancie thereto in the nature thereof but in this respect it differs not from Socage land in general which by the nature of it is capable of partition and by Custome may be and in many places extra Cantium is partible where the plea I take it ought to run quod terra illa à toto tempore c. partibilis fuit partita agreeable with that of Glanvill si fuerit Socagium id antiquitùs divisum which Bracton seemeth somewhat more fully to explain by his si haereditas partibilis sit ab antiquo divisa Now then reddendo singula singulis that such land is partibilis i e. partible the former part of plea is in Kent from Gavelkynd elswhere in particular manours at least from Socage that it is or rather was antiquitùs partita i. e. anciently parted the pleas latter part is from Custome or Prescription Partition in the mean while in our Gavelkynd being but a single property or branch thereof induced by Custome the term in its full latitude comprehending all other properties accompanying land of that nature and tenure such as Dower of the moyety Suffering for felony without forfeiture of estate and the rest conteined in the Kentish Custumal as properly depending of Gavelkynd as partition doth and in respect whereof the land may as well be called Gavelkynd as because of Partition But admitting Socage-land to be generally by the nature of it consuetudine mediante capable of partition as well a Gavelkynd how comes it then to passe will some say that this partition-property is more appropriate to it than Socage-land in general and that they so much differ in their terms From the agreement of the Kentish-men with the Conquerour â—aith the common opinion I shall answer that anon In the mean time said we not but now that Custome is the thing whereto we ow this partition And if so why then seek we any further after its original Customes we know cease to be Customes when once they can be traced to their first beginnings it being the main essential part of a
Custome to be of an unknown rise But be it so that Custome carries such a stroke here what kind of Custome is it or how shall we find such a Custome for it as may consist with Gavelkynd-land of novel Tenure whereof before so often Hic laâ—or hoc opus est here 's the point indeed Why in short it is no other than a custome generally spreading it self throughout the whole Countrey in land of that nature What elswhere I mean in other Shires and Counties they properly call by the name of Socage whether free or base we here in Kent are wont to call by the name of Gavelkynd or if you please in Mr. Lambards expression all Socage service here properly so called is clothed with the apparel of Gavelkynd and under it in a large acception is understood all such land within the County as is not Knights-fee or Knights-service land the term serving here as that of Socage elswhere to contradistinguish iâ— from Knight-service land as Fief Roturier or rather â—nheritence Roturier all other being improperly and corruptly called Fief or Fee that is not holden militiae gratiâ the ground of all Fees is used in Normandy to difference that from Fief de Haubert or Noble Fief Now into all land of this kind by a general or universal custome of the whole County hath this property of partition been introduced insomuch as what land was granted out in Gavelkynd by such as before held it in Dâ—mesne or the like as for want of time and usage it had no particular custome introductive of that property of partition so neither did it want the same the generality of the Custome extending it self to all Censual land or land letten out for Cens and sufficing to render it partible as occasion should be offered though but newly dimised To this purpose Mr. Lambard Although saith he iâ— were so that the land were never departed in deed yet if it remain partible in nature it may be departed whensoever occasion shall be ministred Granted out I say and holden in terms for Cens conceiving a necessity of that or the like expression in the Habendâ—m or other part of the grant to make it capable of this and the other properties incident to Gavelkynd not intending here the very numerical word or term Gavelkynd but that or some other of equivalent sence and signification with it for example Reddendo such or such a sum de gablo de censu and the like whereof for illustration sake expect some copies of old grants in the Appendix to this Discourse These indeed such as these were the more usual expressions in elder grants that of Tenendum in Gavelkynd the like being sought of me in vain before H. 2. dayes nor afore-time doth the term occurr in any writing or monument whatsoever save onely in this passage in Spot St. Austins Monk and Chronicler at Canterbury who â—aith that anno 1063. Abbas tradidit terram de Dene in Gavelkende Blakemanno Athelredo â—iliis Brithmâ—â—i But from Hen. 2. dayes downwards it is obvious in many grants of land recorded and extant in the Liegers of Christ-church Canterbury the laâ—e Abbey of St. Austins there and many other of the Kentish religious houses until about the time of that Sâ—atâ—te Quia emptores terrarum which forbidding the letting out of land by any man to be holden of himself and consequently cutting off all new Tenures and the creation thereof stopped the current of all such grants of land in Gavelkynd for the future That such an expression as Tenendum in or ad Gavelkynd or the like was necessary to render the granted land partible after the custome of Gavelkynd without the help of Prescription requisite in partible land elswhere out of Kent may in part appear by a Record of a controversie happening now full 400 years agone between one Burga sometime the wife of Peter de Bending Plaintiffe and the Prior and Covent of Christ-Church Canterbury Deforciant or Defendant touching the moiety of the manor of Well by them granted to her said husband ad feodi firmam challenged by her tanquam francus bancus suus which controversie was debated and decided in Eire and is recorded in the Liegers of that Church from whence I shall present the Reader with a copy of it not unworthy his perusal in the fore-remembred Appendix Scriptura 5. Neverthelesse it will here I think be necessary that we distinguish times for what at first in Kent was only partible because of the Tenure in Gavelkynd I perswade my self was afterwards in tract of time partible and did communicate with Gavelkynd-land in that property by being Socage land though not expressely holden in Gavelkynd it sufficing at length to shew as Mr. Lambard hath it the Custome at large and to say that the land lieth in Kent and that all the lands there be of the nature of Gavelkynd By what means this was wrought or by what degrees our Socage land arrived at this universality of partiblenesse is not so easily discovered That the sundry favours of Gavelkynd custome should iutice many to creep into it and by one and one upon occasion of the intestine troubles that ensued the deprivation of King Richard the second to shroud and cover themselves under the safety and shadow of the priviledges that do wait upon it is an opinion of some whereunto I cannot subscribe as conceiving no Tenures in Gavelkynd to be so late as Rich 2. dayes which this opinion would infer with what consistencie with the Statute of Quia emptores terrarum made so long before and prohibiting the creation of new Tenures I cannot see But to let the manner passe the thing the over-spreading the Countrey in processe of time with this Tenure is very obvious and apparent witnesse an ancient Statute made anno 18. Hen. 6. cap. 2 taking knowledge that There were not at that day within the Shire above xl persons which had lands to the yearly value of xx pounds without the Tenure of Gavelkynde and the greater part of this County or well nigh all was then within this Tenure To proceed ascribing this property of partition in Gavelkynd-land to the custome of the Countrey what shall be said then to the partible land more or lesse abroad in other Counties â— is such Gavelkynd-land and so to be called or not or is it from Gavelkynd that such partition there obteins I conceive not For first our Kentish Gavelkynd Custome considered collectively with respect to all its branches is not to be restrained to this one particular property but as before is intimated consists of many other as singular properties besides and which may as well challenge a share and right in the Customes name as may that of Partition such as is Dower of the Moyety not to forfeit lands for Felony and the like and though in point of Partition it may be like ours in Kent yet in other
properties incident to our Gavelkynd it might and no doubt but doth differ from it Besides that such partible land elswhere should be called Gavelkynd will not stand with out premised grounds excluding Prescription in Gavelkynd land whereas in such places abroad though haply not in whole Counties yet in particular Manours I conceive it 's necessary even in their Gavellonds whereof I find mention made in several manours out of Kent as some in Kent to shew quod terra illa à toto tempore c. partibilis fuit partita the accustomable actual partition of it being there as necessary to be pleaded and proved as its capability of such a property Add hereunto that if all partible land were Gavelkynd rendred such by partition alone then were Bractons Sicut de Gavelkynd vel alibi ubi terra est partibilis ratione terrae an improper expression We are told that this Custome of Gavelkynd partition takes place hath done at least in other countries or counties besides Kent and Littleton instanceth in North-Wales But what custome I pray a custome indeed like to that in the Scottish Socage land of partition that 's true and testimonies of it are obvious such as besides that of Littleton Statutum Walliae the Welch History and some Acts of Parliament But still I say no Gavelkynd-custome taken in its true plenary and compleat acception comprising all the properties of it obvious in the Custumal As then for other Countrey-mens communicating with us of Kent in the Tenure I conceive it first came up by way of imitation of our example in Ireland especially and amongst the Welch-men in whose Vocabulary or Dictionary the word is sought in vain as it is also in that old Statute which concerns them Statutum Walliae where though mention may be found of a custome there obteining of partition of their lands like to that of our Kentish Gavelkynd yet without any one word of Gavelkynd And if perhaps it may be found in their deeds charters or other records yet as one saith in a case not much unlike conditioned to this of ours whose words with very little variation I shall therefore take up here Suspicari licet hanc voâ—em pluribus illorum chartis actisque publicis nâ—n tam illorum quà m pragmaticorum usu ac instituto invectam i. e. 't is to be suspected that it had its imposition and was first transmitted hither by our Lawyers who borrowed the term to make use of it for illustration sake like as of late I am perswaded the Parliament did in that Stat. 34. Hen. 8 cap. 26. where the term of Gavelkynd haply is but borrowed to help describe and illustrate that partible quality there mentioned of the lands in Wales which I am the more induced to conceive because in a former Statute concerning Wales namely that of the 27th of the same King cap. 26. making mention of this partition Gavelkynd is not at all remembred In imitation then as I conceive of the Kentish-men the generality of whose partible land of long time hath notoriously been known by that title and whose lands alone of all the Counties of England at this day be of the nature of Gavelkynd of common right this name or term of Gavelkynd in lands elswhere of like condition in matter of descent hath been taken up and is reteined By that which hath been said I may be thought to incline to their opinion who hold that Socage and Gavelkynd are Synonyma terms identical and of one and the same signification here in Kent and that consequently what land here is of Gavelkynd-nature is of Socage-tenure as on the other side what land is of Socage-tenure is of Gavelkynd-nature I answer No for I require in this case I mean to make Socage land here in Kent ipso facto partible after the custome of Gavelkynd that it be granted out and holden in Gavelkynd expressely or in terms equivalent as I said before yet with that distinction oftimes wherewith I there qualified it Notwithstanding I am not of their mind who distinguishing between free and base Socage in Kent make the natures of their descents divers the free Socage say they descending to the eldest alone the base falling in division between him and all his brethren Thus Mr. Lambard in the person of others to help justifie whose distinction with the inference upon it he there exhibits an Inquisition taken after the death of one Walter Culpepper making mention of divers parcels of land and annual rents holden by the deceased at his death some in liberum feodum others in Gavelkynd the former of which by the verdict of the Jury was to go to the deceaseds eldest son alone the latter in common amongst him and the rest of his brethren Thus the Inquisition which as Mr. Lambard there follows it cleerly distinguisheth free Socage from the Gavelkynd interpreting it seems liberum feodum there by Free Socage and it may be rightly however I crave leave of dissent and as it is but fit shall give my reasons For my part I never found Free Socage any where expressed by that term or in Latine rendred Liberum feodum nor perhaps to those of more diligence and more conversant with our Law-records than my self hath it ever occurred under that notion Nor have I met with any Free Socage as this here not subject to the rendring of some kind of service either in denariâ—s or otherwise By Liberum feodum I understand sometime Feodum militare which is often in old Records called Liberum feodum In a very ancient Rental of Southmalling manour in Sussex we have this title Liberi feodi and under it Godefridus Walensis tenet 111 feodos milit in tenemento de Malling quartam partem unius feodi apud Terring per liberum servitium armorum suorum Willmus de Bransa tenuit apud Adburton unum feodum militis per liberum servitium armorum suorum And so some others Apposite here is that of Bracton Notandum saith he quod in servitio militari non dicitur per liberum servitium ideo quiaconstat quod feodum tale liberum est c. Sometime also by Liberum feodum I understand what I conceive it doth principally denote unto us Frank Fee that is by the Feudists definition such prâ— quâ— nullum omninâ— servitium praestatur and therefore is of them reckoned inter Feudastra or Feuda impropria And such as this seemeth to be meant by Liberum feâ—dum in that Inquisition because it is there in terminis expressed to be holden just after the manner of Frank Fee by the precedent definition of it absque aliquo servitio inde faciendo And if Frank Fee then in probability not Socage for as all the land in the Realm say our Books is either Ancient Demesne or Frank Fee so none say they is to be accounted Ancient Demesne but such as is holden in Socage
though with some little variation of the Dialect occasioned by tract of time bringing its corruptions and the intermixture of other languages and that is with us hade head hode with the Teutonics heyd and heit sometime hat betokening in each place as dome and ship anciently written scip in the terminations of many of our words a quality kind condition state sort nature property and the like Hence the military masculine feminine childish paternal maternal fraternal sisterly desolate presbyterial neighbourly quality nature kind condition c. of a Knight a Man a Woman a Child a Father a Mother a Brother a Sister a Widow a Priest a Neighbour c. is termed Knight-hode Manhode Womanhode Childhode Fatherhode Motherhode Brotherhode Sisterhode Widowhode Priesthode Neighbourhode c. The quality nature existence of the Deity is stiled Godhead with us with our Ancestours the English Saxons who wrote and had that hade which we since write and have hode and hood Godhade Head in Maidenhead ows it self to the same original denoting out the virgin-condition or maiden-quality of the party Hood in Livelyhood is also sprung from the same root whereby a mans state of subsistence is signified and the like may be said of hood in Falshood Likelyhood and a many words more of like termination as expressing and setting forth in the one the false in the other the probable likely condition of the thing predicated This may also help us in the etymologie of what we use to call Feud or deadly feud our Ancestours the Saxons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Germans Fhede Feide and Faide which in truth is but a compound of their Fâ—h i. e. Hostis Inimicus as we say at this day a Foe and hode hade head heyt c. â—i conditio status qualitas c. together importing the condition of enmity in the person who bears it I could here enlarge with instances of very many Teutonic words thus terminating I mean in their Dialect with heyd heit and the like and by such their terminations predicating as is said before a quality condition c. such as Allenheyd Felheyd Fijnigheyd Hebbelickheyd Heyligheyd Maeghdelickheyd and numbers more obvious in every page of Kilianus Dictionarium Teutonico-Latinum and elswhere but I fear to be tedious Seeing now what the latter syllable in Feudum and Allodium in their several originals signifieth and having taken the words thus asunder let us next consider of the other part of the composition their former syllables which in Feudum the former is Feh Feo or Feoh signifying as Pecunia in the general so more peculiarly a Salary Stipend Wages intended of us when we say Officers live by their Fees whilest in the other Allodium the former syllable rightly written is All Al or as with the Saxons eal Put we now the syllables together again and then the former will come forth Feo-hode Feh-hode or the like the latter All-hode and that most appositely if applied to the Feudists Feudum and Allodium considered in their originations and primitive acceptions The former of which when first instituted was but personal not as afterward perpetual patrimonial hereditary or holden in Glanvill and Bractons phrase ad remanentiam but as a Clergy-man holds his Benefice hence in some ancient Charters called Feodum onely for life the Tenant being but a meer Stipendiary a Termer at best but a Freeholder for life Usufructuarius and indeed some were not so much but held only as our learned Glossarist hath it ad voluntatem Domini as others precariò not unlike our Tenants at will since and at this day the land was onely lent as the German term for it Lehen seems to intimate In processe of time degenerating and receding from their first institution they became perpetual and hereditary yet holden as formerly with a condition of service on the Tenants part and stipendii loco nomine on the Lords by way as it were of Salary Pension or Stipend from the Lord to gratifie and recompence his man withall for such his service to which he was obliged under peril of forfeicture by the withdrawing thereof I dare not add in consideration of Fealty or Homage in those times since though that acknowledgement in the Feudal Law of some Fee tenable without an oath of Fealty be indeed justly taxed for a paradox of such who will have Fee to come of Fides whence haply our legal maxime that all Tenures regularly are liable to Fealty yet might Fee by this derivation of it stand with Fealty and the Tenants of it be called Fideles feudales without a soloecisme a good argument for the derivation of it thus rather than from Fides as of more scope and more consistent with Fee of all sorts than that other derivation doth allow Fees I say were holden but in service nomine quasi alieno the Dominium that at least of Lawyers called directum though the utile were transferred on the Tenant the propriety I mean remaining and abiding still in the Lord together with a power of restraining his Tenant from alienation and consequently such land was but partially conditionally not totally and absolutely granted out Contrariwise that which was termed in opposition to it Allodium as it was hereditary perpetual and patrimonial so was it â—ans all condition free and in the power of the possessour to dispose of it ad libitum how he pleased either by gift or sale without asking any man leave and as it was hereditary perpetual patrimonial and free land so was it withall possessed totally and wholly not as our land generally in this Kingdome in Subjects hands at this day said to be holden in Dominico suo ut de feodo as our Lawyers phrase it but rather in Dominico suo ut de jure the owner having Dominium both directum and utile or in the Feudists phrase and after their unanimous harmonious definition of it pleno jure integrè ex toto or ex solido as Malmesbury hath that which Eadmerus expresseth by in Alodium quit of all services like Frankalmoigne whereunto Mr. Selden there in that respect resembles it I may call it absolutely immediately or if you will independently without acknowledgement of any superiour Lord not unlike the Prince of Haynault holding onely saith my Authour de Deo Sole or as other absolute Princes Gratiâ Dei in a word in totality whence the terms of praedia immunia terra propria fundus proprii juris patrimonium in Charters and elswhere given to such possessions Probably land of this nature was the same with our Bocland which I sometime find in the Latine rendring of some Saxon pieces turned by it hence a hint to judge of the one by the other for what in the 11th Chapter of the first part of King Cnutes Laws is read Bocland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and in the old Latine version of it in the Kings Ms. and Jornalensis
is turned haereditas Si quis Tainus in haereditate sua terram it should be Ecclesiam habeat c. in another like old version in the book of Rochester called Textus Roffensis is rendred Allodium Si liberalis homo quem Angli Thegen vocant habet in Alodio suo Ecclesiam c. By Allodium also is turned in the same Record Textus Roffensis what occurrs in the Saxon fragment exhibited by Mr. Lambard Perambulat in Mepham pag. 500. under the term of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Et si villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio Alodio c. Allodium it seems thence being properly such land as is fully a mans own Shortly then Feudum Fee or land holden in Fee is no more considered in its first and primary acception to which they must have regard that will hope to judge aright of the ground for the first imposition of the name than what was holden in Fee-hode by contraction Feud or Feod i. e in a stipendiary conditional mercenary mediate way and nature and with the acknowledgement of a superiour Lord and a condition of returning him some service for it upon the withdrawing whereof the land was revertible unto the Lord in which respect as the grant thereof is improperly called a Donation being but Feodalis dimissio i. e. a Demise in Fee so the Deed or Conveyance by which it was demised is as improperly termed a Charter of Donation being no more than a Charter or Deed of Feoffment Such I say is Feudum Allodium is contrarywise what is holden in All-hode in totality in a totall full absolute immediate manner and condition without acknowledgement of any superiour Lord and free from any tie or compact for the returning any service at all for it unto any Thus far and I hope not too far nor impertinently for cleering the etymon of Feudum and Allodium as the argument so the torture of many learned pens amongst whose derivations of one and t'other I humbly crave this of mine such as it is may be admitted for future Indagatours and all others of unforestalled judgements freely to consider of And now to spin on our former thred and to reassume our argument of the Introduction of our Fees or Tenures by the Conquerour which that etymon coming in the way caused me a while to set aside I here professe to concurr with them who upon the question put resolve it in the affirmative whereof our learned Glossarist for one thus Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior Conquestor nuncupatus c. and a little after Deinceps vero resonarunt omnia feodorum gravaminibus Saxonum aevâ— ne auditis quidem no other Tenures or in the Scottish expression Haldings of land being formerly here in use but these two Bocland and Folcland The one saith my Authour a possession by writing the other without That by writing so he adds was a freehold and by charter hereditary with all immunities and for the free and nobler sort That without writing was to hold at the will of the Lord bound to rents and services and was for the rurall people It may be added that the former took name from the lands booking or entring with the limits of it in a Codicil as then called a little book or as we since call it a Charter which if the land were given to a Lay-man was in way of Seizin delivered to the party that was to have the land hence haply that ceremony we retain of delivering a Conveyance as the parties Act and Deed or if to a Monastery laid and left most commonly upon the Altar Ego autem licentiâ consensu illius testimonioque Episcoporum Optimatum suorum omnes terras meas libros terrarum propria manu mea posui super altare Christi in Dorobernia c. as it is in the close of a Memorial of the gift of Monkton and other manours to the Church of Canterbury in the year 961 by Queen Edive or Edith whose picture in thankful remembrance was until of late reserved in that Churches Treasury Hence was such a Charter vulgarly known in those times by the name of a Landboc in the Latine of the times Telligraphum sometime Codicillus and the like Observe yet further terram haereditario jure conscribere liberam proclamare the Latine phrase for creating Bocland was a prerogative royal or a Royalty and out of the power of any Subject whence that passage often occurring in Subjects grants of lands in perpetuity to the forenamed Cathedral and other places viz. and such a one King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. haereditario jure conscripsit as also that liberam omninò proclamavit and such like King Ethelreds priviledge as called confirming to that Cathedral amongst other things their whole possessions is hence by one of the Subscribents called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But notwithstanding this Enfranchisement the land was very seldome alienated by the possessour in Frankalmoigne without what the Law of Mortmaine afterward required a concurrent or at least a subsequent confirmation from the King whereof examples are obvious in the List of that Churches lands and benefactours published in the Antiquities of Canterbury pag. 210. as also of the concurrence of the Magnates or Nobles in such Bocland-grants principally in that of Mallings You shall have the very words because remaâ—kable Anno Domini DCCCxxxviij Ecgbertus Athelwlfus Rex filius ejus dederunt Ecclesiae Christi in Dorobernia Mallings in Suthsexan quod viz. manerium prius eidem Ecclesiae dedit Baldredus Rex sed quia mark this non fuit de consensu magnatum regni donum id non potuit valere Et ideo c. Bocland thus flowing originally from the Crown upon all forfeictures and particularly that of the estate of the possessour for deserting the warrs as if there were no mean between the King and him the King alone was to take the forfeict But of Bocland more anon Some other kinds of land 't is true there were in those dayes but all I take it reducible to the precedent Diehotomy such as 1 Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as it is in the truce or agreement between Alfred and Guthrun KK in the Archaion cap. 2. 2 Neatland 3 Inland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so runs the first chapter of King Edgars Laws there 4 Utland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we have it in the will of Byrhtric in our Kentish Perambulation pag. 495. Of which four the two former I conceive were but the same with Folcland both one and t'other importing land letten or demised as Folâ—land was to rural people more Emphitâ—utico for profit the one from Gable or Gafol i. â— Cens or Rent being termed Gafolland the other called Neatland either from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to improve fructifie whence 〈◊〉
〈◊〉 〈◊〉 〈◊〉 〈◊〉 for a Foenerator a Usurer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 profit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 profitable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unprofitable unthrifty or else which I rather think from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Villanus Colonus as the old Version of the 19th 21th of K. Ina's Laws renders the word which comes all to one with Ceorliscus spoken of in that second Chapter of the Foedus Aluredi Guthruni Regum and there described by his quality to be oâ—e that occupieth Gafolland As for the remaining two Inland Utland the former was terra dominicalis land holden in Demesne in the owners own hands and for the most part designed in mensam Domini whence otherwise stilâ—d in succeeding times bord-Bord-land like the Civilians and Canonists bona ad mensâ—m and in this respect may not unfitly be referred to Bocland regularly of like property The latter contrariwise like Gafolland and Neatland was land letten out and in opposition to Demesne land termed in servitio or tenementâ—lis that is granted out in service by the Lord to his Tenants to be holden of himself and so we may parallel it as with Gafolland and Neatland so with Folcland being of the same nature like the Frenchmans Fief sâ—rvant i. terra serviens in respect whereof the Tenants were bound to be Retainers Attendants and Followers to their Lords Suiâ—ors to their Courts and were thence called in the term of Hen. 1. Laws taken up afterwards of Bracton Folgarii concerning which see further in Sir Hen. Spelmans Glossary verb. Folgare Folgarii as also in the Laws of King Knute par 2. cap. 19. Besides these sorts of land after ages since the Conquest produced many other such as Work-land Cot-land Aver-land Drof-land Swilling-land Molland Ber-land Smiths-land Ware land Terra Susanna For-land Bord-land and such like Of each of which for some satisfaction to the inquisitive in a word or two The first Work-land is land of a servile nature and condition terra servilis as I find it called as also what indeed the word soundeth terra operaria because haply at the creation of the manour and distribution of it into parcels charged with servile works such as plowing and harrowing the Lords aâ—able ground mowing tassing and carrying in his hay sowing weeding reaping and inning his corn making and mending his fences thatching his barns and such like charged I say with servile works and not with Cens or Rent or if also with rent yet of the twain more especially with works and therefore contradistinct and opposite to Gavelland which was land liable to Cens or Rent or if also to works yet chiefly to rent both one and t'other being denominated from what was the more eminent service arising from them Hereof some footsteps visible in the 66. of King Ina's Laws The second Cot-land that belonging unto and occupied by the Cotarii Cotsetâ— or Cotmanni a sort of base Tenants so called from certain Cotes or Cottages small sheds like sheep-cotes with some little modicum or parcel of land adjoyning originally assigned out unto them in respect and recompence of their undergoing such like servile works or baser services for their Lords as before expressed The third Aver-land much the same with that before called Work-land coming of the French Ouvrer to work or labour but chiefly differing from that in this particular that the services thereof consisted especially in carriages as of the Lords corn into the Barn to Markets Fairs and elswhere or of his domestick utensils or houshold-provision from one place to another which service was of diverse kinds sometimes by horse thence called Horse-average otherwhile by foot thence termed Foot-average one while within the precinct of the manour thence named In-average another while without and then called Out-average the Tenant in the mean while being known by the name of Avermannus The fourth Drof-land that holden by the service drof- of driving as well of Distresses taken for the Lords use as of the Lords cattel from place to place as to and from Markets Fairs and the like more particularly here in Kent of driving the Lords hogs or swine to and from the Weald of Kent and the Denns there thence called of old Drofdens namely from the droves of hogs sent thither and there fed and fatted with mast or pawnage the Driver whereof was vulgarly called Drofmannâ—u The fifth Swilling-land that let out or occupied by Swillings Swollings or Sullings that is Plough-lands coming of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Plough in which notion the word may extend to all arable land the quantity whereof was various and uncertain conteining more or lesse according to the nature of the land a Plough being able to master a greater or lesser quantity thereafter as it is in quality This of Swillings I find to be a word proper to the Kentish even from the Conquerours time to look no higher whose Survey commonly called Domesday-book shews Suling and the like to have been a term in those dayes peculiar to this County whereby to expresse the quantity of their land whilest Hide and the like was of like use elswhere To this head may be referred Hide-land Yoke-land Aker-land Rod-land and the like being quantities or portions of land let out and occupied by the Hide Yoke Aker Rod c. and denominated accordingly The sixth Mol-land was the same with Up-land of the Saxons called Dunland standing in opposition to Meadow-land Mershland or Low-land the Tenant whereof was wont to be called Molmannus the word as I conceive being derivable from the Latine Moles a heap of which see further in the Surveyours Dialogue Hence probably the name of that place in Ash the seat and patrimony aâ— this day and from good antiquity of the Harflets formerly of the Septvans families both in their time adoâ—ned with Knight-hood called Molland being of an advantagious situation for the overlooking of a large level of a rich Mershland The seventh Ber-land that which was held by the ber- service of bearing or carrying the Lords or his Stewards provisions of victual or the like in their remove from place to place such Tenant being thence called â—ermâ—nnus The eighth Smiths-land that in respect whereof the Tenant was bound as to undergo the Smiths or Farriers office and work in and about shooing his Lords horses and carriages so also to find and furnish him with materials of iron for that purpose The ninth Ware-land the same that otherwise called in the Latine of the times Terra warectata or Terrajacens ad warectam that is land lying or suffered to lie â—allow coming from the French Garé their g here as in many other words being turned into our w whence with them Terre garée for old fallow-ground The tenth Terra susanna land not much unlike unto if not the same with the former being superannated land or land with over much tillage
worn and beaten out of state and therefore of necessity lying over year and being converted from tillage to pasture until it may recover state and be fit for tillage again the term or denomination coming from the French Susanné signifying stale grown old past the best or overworn with years The eleventh For-land the same I take it that we otherwise use to call Fore-aker whereof see more in Sir Henry Spelmans Glossary verb. Forera The twelfth and last Bord-land that holden and bord- occupied by the Bordarii or Bordmanuâ— the same I take it with the French Bordâ—ers i. e. Villeins or Cottagers such as hold by a servile base and drudging Tenure of them called Bordage You may read both of the one and the other in the old grand Custumier of Normandy cap. 53. Within the â—ignification of the word Bordland are comprehended also as is already hinâ—ed in this chapter lands holden in Demesme of the Saxons termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and designed to the furnishing of the Lords boord or table and the maintenance of him and his family in victual For which see Bracton lib. 4. tract 3. cap. 9. num 5. Which kind of land the Saxons used to call Foster-land quasi fostering land that is land ad victum a term obvious and very frequent with the religious men of those dayes who as they had their special Ferms and portions of land assigned them ad victum so had they other as peculiar to their clothing or apparelling land ad vestitum which from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vestis or vestimentum they called Scrud-land They had withall their Sextary-land which was such as apperteined to the office and was intrusted to the care of the Sacrist or Sexton and was designed chiefly to the upholding maintenance of their Church or Temple both in the Fabrick and Ornaments Besides all these they had their Almesâ—and which was that appropriate to their Almnery a parcel or place of the Monastery set apart for harbour and relief to such poor people for the most part as were allied or otherwise related to the Monks I may not heâ—e omit Over-land a name attributed to such land as lieth by or along a Rivers side and coming of the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. margo the bank of a River whence that known places name lying by London alongst the Thames-side called St. Mary Overies compounded of the aforesaid Over and Ree betokening a River or Current of water Land of this name we have at or neer Ash in Kent alongst the Stour-side running to Sandwich Town and Haven I might to these add Monday-land and the like which with it fellows borrowed denomination from this or that week day and that in respect of the Tenants obligation to such or such servile works or services upon such or such dayes of the week in respect of that land But I purpose to digresse no longer having for brevity sake wittingly omitted the quotation of the places where these several names occurr which otherwise I should willingly have added and shall onely in the Appendix Scriptura 23. present the Reader with a copy of a Saxon charter making mention of those two Fosterland and Scrudland as somewhat more remarkable than the rest Now returning to our Bocland you must know that notwithstanding that introduction of new Tenures by the Conquerour we did not streightway forgo our Bocland that kind of Tenure I mean but reteined it both name and thing witnesse first what occurrs in a Deed sans date of certain messuages by Roger son of John Alderman of Radingate in Canterbury granted in Frankalmoigne to St. Laurence Hospital neer the city founded by Hugh of that name the second Abbat of St. Augustines there in the year 1137. viz. Duo messuagia quae sita sunt in terra d Bocland de qua nulli respondeâ— c. where we have not onely Bocland mentioned but the nature of it also in part seâ— forth Witnesse also another passage to the same effect in a like ancient charter to the Church of Canterbury for the grant of a parcel of land lying without the wals of the city between Queningate and Burgâ—â—e running thus Volo autem ut monachi teneant terram illam omnino liberam sicut ego antecessores mei nemini inde respondeant Witnesse lastly Domesday book it self where though haply not the name of it as neither of Folcland Saxon terms both yet the thing to my apprehension is very obvious and often occurring under the name and notion sometime of Tainland otherwhile and I think more often of Allodium Hence the phrase for the former of clamare ad Tainland of tenere in Alodio for the other both taken up as I conceive in opposition to Fee but the former so termed because indeed Bocland or Alodium was properly tenable by Thanes hence in the eleventh chapter of King Cnutes Laws par 1. Thegn and Bocland in the original Saxon as Thegen and Allodium in the Latine version in Textus Roffensis meet as relatives not but that it was sometime held by Ceorles as who were not incapable of holding it witnesse the old version of the Saxon Fragment in Mr. Lambard whereof before but when so as improperly there and as much out of place as Knights Fee proper to Knights and the nobler sort of people were in this Kingdome since and at this day in Socagers hands or in the hands of Sockmen whose proper tenure was that of Gafolland 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as you have it before I have often much wondred with my self whence it should come to passe that diverse of our Canterbury houses and ground at this day pay no Quit-rent at all which others in the same place though holden in Free Burgage are known to do But considering afterwards with my self that Bocland often occurrs in Landbocs as they were called of the place in the Saxons time I at length concluded at least conceived such houses and ground to be the remains of our ancient Bocland which seemeth to be still surviving in them as if holden in Allodium pleno jure without all manner of chargeable service and no other probably than part of those eighty acres of land or the like in Canterburies Survey in Domesday-book thus expressed Habet etiam 't is spoken of Ranulfus de Columbers quater viginti aâ—r as terrae super haec quas tenebant Burgenses in Alodio so I read it rather than Alodia de Rege or as a very ancient book sometimes of St. Augustines Abbey now with the Kings Remembrancer in the Exchequer reads it Item dicuat Burgenses quod idem Ranulfus tenet quatuâ—r viginti agros de Allodiis eorum c. The same Domesday-book to prosecute this discourse of Allodium a little further makes mention particularly of some Allodiarii by name in that Kentish Survey and there also we may read to this
purpose Has forisfactur as habet Rex super omnes Alodiarios totius Comitatus Chent super homines ipsorum And In Cantia quando moritur Alodiarius Rex inde habet Relevationem terrae excepta terrae S. Trinitatis S. Augustini S. Martini exceptis his Godric de Burnes Godric de Carlesone Aelnold Cilt Esber Biga Siret de Cilleham these last three are mentioned also in the Survey there of Canterbury amongst those whose lands were Sac and Soc-free i. e. quit against the King of Sac and Soc Turgis Norman Azor. Super istos habet Rex forisfactur am de capitibus eorum tantummodc de terris eorum habent Relevamen qui habent suam Socam Sacam I rather read it habent than habet Relevamen because by charters both of the Cathedral and St. Augustines Abbey of those succeeding times I find the Monks in each place priviledged with the liberties of Sac and Soc c. over their Allodiarii as termed in the charters of the latter place over their Thegnes or Theines as in the former in what form of words see in the charter of each place for illustration sake copied in the Appendix here Scriptur 19. and 20. And least these various terms Allodiarii and Thegnes rendring them of a seeming difference should occasion any suspition of their being not the same for your satisfaction to the contrary take this note along with you that those who in the Latine charteis of St. Austins are termed Allodiarii in the very same charters exhibited in English like as in those at Christchurch are stiled Thegnes But what may it be ask'd were they then which in some very ancient Records of that Cathedral are named Threnges Indeed I have met with a Record there and you may meet with it here in the Appendix Scriptur 21. a choice one in my account as the book it self was iâ— seems in his who in the margent of the first page of it long since left this note Custodiatur benè iste libellus quia etsi appareat non valere benè tamen valet est libellus satis pretiosus monachis Ecclesiae Christi which makes no slight mention of such Threnges belonging to the Monks there in these very words Quia verò non erant adhuc tempore Regis Will mi milites in Anglia sed Threnges praecepit Rex ut de eis milites fierent ad terram defendendam Fecit autem Lanfrancus Threngos suos milites Monachi verò non fecerunt sed de portione sua ducentas libratas terrae dederunt Archiepiscope ut per milites suos terras eorum defenderet ut omnia negotia eorum apud curiam Romanam suis expensis expediret unde ad huc in tota terra monachorum nullus miles est sed in terra Archiepiscopi c. To this purpose Gervasius Dorobernensis then a Monk of the place speaking of the Archbishops dividing the revenue between himself and the Monks Sibi etiam saith he râ—servaverunt Comites Barones Milites Monachis verò assignaverunt rusticos agricultores These Threnges doubtlesse were the same which in Domesday-book are somewhere called Drenches and if so your best satisfaction what they were will be from the words explication in Sir Hen. Spelmans Glossary But me thinks laying these Records concerning them together and then comparing them wiâ—h the fore-cited ancient charters of liberties granted to the Monks of Christchurch and St. Augustines on the one hand and Domesday-book on the other Drenches Threnges Thegnes one and all may not unfitly be rendred in that books phrase Allodiarii being such Liberales as the Saxon Thegnes is not unusually turned in the old Latine translations as Thegenscipe by Liberaliâ—as such Ministri Fideles Servientes Nobiles as being by these places dignified with some portions of their Allodium or Bocland did militiam ex arbitrio tractare nullius â—omini imperio evocati nulloque feodali gravamine coerciti as our learned Glossarist concerning Allodiarii being permitted to continue in their pristine estate acquitted from military service and tenure when as others were from Threnges turned into Milites and their land consequently subjected to military fee and tenure Whether the name of Drenches were taken up from such a cause as our learned Glossarist from a Record by him there cited is assigned for it some reason there is to doubt from the mention of the terms Synonimy Threnges in that Record of Christchurch as known in that notion here before the conquest whereas the other sayes they took name first after it If before it as the Christchurch Record then I see me thinks some cause to suspect the term corrupted from Thegnes i. Thanes which cleerly that Cathedral had before the conquest On the other side if the Record in the Glossary be right and that withall Threnges Drenches Thegnes and Allodiarii be as all the fore-cited authorities laid together they seem to be Synonima's terms identical then were our Kentish Allodiarii such as had not revolted from the Crown by opposing the Conquerour whether by their aid or counsel but had peaceably submitted to him and his Empire whilest consequently others of the county opposing withstanding and resisting him and his coming in had ipso facto forfeited their possessions and if so then Spots history whereof so much before may well deserve yet another dash or if you will another spot But thus far of Allodium as also of what induced it Bocland which as to the name almost quite ceased with the Saxons though as to the thing it survived some time after under the notion of Allodium into which it was translated of the Normans here and of them so altered also in the very thing that it became thus far subject unto Tenure as in the opinion of learned men it was land as we say holden and so accounted whence in time that common and received axiome amongst us that in the Law of England since the conquest at least we have not properly Allodium that is not any Subjects land that is not holden in which respect as one saith he that can say most for his estate saith thus I am seized of this or that land or tenement in my Demain as of fee Seisitus inde in dominico meo ut de feodo c. And 't is most true at this day but under favour it was otherwise since the conquest witnesse besides Domesday-book where the opposite to Fee Allodium is very obvious those charters afore-cited the one of St. Laurence the other of Christchurch and such like mentioning land holden by the Authours or Owners for which they were responsible to none as also the Pinenden plea for the Archbishops lands of Canterbury and the grant in Alodium mentioned in Eadmerus evidencing cleerly the contrary and asserting some of them the continuance of such creations from the King to whom after Textus Roffensis
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-Socage-land one and all as properly so called as rightly and with as much reason referred to that head of our English tenures as that which for its plough or tillage service is said to be more peculiarly so called standing not in need of that distinction which the common opinion useth to bring them within the compasse of it called ab effectu because of like effects and incidents belonging to them with Socage tenure a distinction by this derivation rendred frivolous and needlesse and under favour therefore as fit to be laid aside as their assertion is to be retracted who to vindicate the reteining of the name of Socage as of use onely to distinguish that from a tenure by Knight-service affirm that the cause wherupon the name of Socage first grew viz. Plough-service is taken away by the change of such service into money whereas presupposing our present derivation of Socage to be admitted both name and cause still continue Thus much for Socage a term that to me first occurrs in Glanvill never as yet in any elder Record In a Roll of Accompts of the Archbishop of Canterburies mannours for the sixth year of Archbishop Baldwyn Glanvills Coaetanean and Companion in his voyage and expedition with King Richard the first to the holy land which by computation was the year of our Lord 1190. it occurs by the name of Soggagium thus Super Soggagium London remanent xx d. and this in Croydon manour there amongst the expences and deductions following the receipts of that year Which I mention not as conceiving it no elder than Hen. 2. dayes yes I rather hold Socmannus Socmanria and Socagium to be relatives and consequently that where the one occurrs the rest are implied but Socmannus is obvious in Domesday-book and lesse ancient therefore I perswade my self Socage and Socmanry are not Nunc age carpe viam susceptum perfice munus Now therefore to come to our Quaere whether Gavelkynd be a Tenure or a Custome and give it an answer I confesse there are that in some sort hold the negative as who will have it to be a Custome accompanying the land where it obteineth rather than a Tenure whereby the land is holden holding the whilest the Tenure to be Socage And of this opinion Mr. Lambard doth more than seem to be Now between Tenure and Custome in this case with us the difference as I collect stands thus admit it onely a Tenure and then the nature of the land is not concerned in point of descent so that in some cases as the escheat of it by Death or Cessavit to the Lord that holds over by Knight-service or to the Crown by forfeicture in treason and the like it ceaseth to be any longer of Gavelkynd-nature in point of descent and goes not as before to all but onely to the eldest of the sons according to the course of the Common Law whereas if it be a Custome following the nature of the land then it is say they inseparable from that land where it obteineth insomuch as notwithstanding this escheat or whatever other alteration of the tenure it remains as before partible among all the sons or other heirs where sons are wanting But to the point To prove Gavelkynd to be a â—enure I shall not need I think to multiply authorities the generality of those ancient deeds that I have seen for the granting lands in Gavelkynd whereof some are exhibited in the Appendix are wont to have their Tenendums the usual and more proper place for the creation of a tenure in any kind of grant thus phrased Tenendum either ad or in Gavelikendam or the like The office recited of Mr. Lambard in his Peramb pag. 540. found after the death of Walter Culpepper is alike phrased Tenuit in Gavelkind being a much repeated passage in it The Statute 18. Hen. 6. cap. 3. in terms calleth it a tenure taking knowledge that there were not at that day within the Shire above 40. persons at the most which had lands to the yearly value of xx pounds without the tenure of Gazelkynd and that the greater party of this County or well nigh all was then within that Tenure And this alone which I shall add may evince and clear it to be a tenure that since the Statute of Quia emptores terrarum anno 18. Edw. 1. prohibiting the subject to let land to be holden of himself as there are not to be found any more grants of land pro homagio sâ—rvitio so neither in Gavelkynd For brevity sake I will urge no more authorities of this kind Being thus then apparently a tenure how cometh it to passe that we so usually call it the Custome of Gavelkynd seldome either making or finding mention of Gavelkynd but with that adjunct and under that notion of Custome Indeed the property of equal partition is and hath so long been of that eminencie in our Kentish Gavelkynd and it so much celebrated for that property that as if it were the sole and onely property of it all the other in respect wherof this land may as well be called Gavelkynd as for this are as it were forgotten and that onely carries away the name from its fellows whereas that of Partition as hath been said before is but one among the many other properties and customes in our Kentish Gavelkynd such as Dower of the Moyety Losse of Dower by marriage before or after assignement Not to forfeict lands for Felony Power of alienation at fifteen years of age and the rest obvious
part of the land and the third part of all the residue of the lands being Gavelkind did escheat to the King for want of Heir which land is ever since enjoyed under the Kings title by escheat And John Wall upon a trial recovered against White the Devisee Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome and so it was agreed per curiam Pasch 37. El. in C. B. in Halton and Starthops case upon evidence to a Jury of Kent it was then said that it had been so resolved before and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome that the Land is deviseable c. And he that shall conclude upon that place of Fitz Nat. Brev. 198. l. that all Gavelkind Land is deviseable c. may as well conclude that all Lands in every City and Burrough in England is deviseable which is not so as appeareth by Mr. Littleton who saith that in some Burroughs by custome a man may devise his Lands c. And if Gavelkind Lands were deviseable by custome c. Then a man may devise them by word without writing as it is agreed in 34. H. 8. Dyer 53. for a man may devise his Goods and Chattels by a Will Nuncupative so may he likewise devise his Lands deviseable by custome because they were esteemed but tanquam catalla c. and it would be a mischievous thing if all the Gavelkind in Kent should be deviseable by word onely To these arguments and objections against the custome certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof reducible to three heads which to avoid all just suspicion of partiality and prejudice wherewith some zealous advocates and contenders for the custome have been and may again be ready to asperse me I shall here subjoyn together with such answers and arguments by way of reply as I have received from the learned Counsel of the other side in further and fuller refutation of theirs who endeavour to uphold the custome The learned Counsels arguments in behalf of the Custome FIrst they deny the old book of 4. Edw. 2. Fitzh Mortdancester 39. â—o be Lâ—w. But an Assise of Mortdancester lies of land deviseable if it be true that his Ancestour died seized unlesse it appears that the Defendaut claims by some other title But if the Defendant plead that the land is by custome deviseable and was devised unto him it is a good barr of the action Secondly They rely much upon the book of Fitzherb Natura Brevium fol. 198. which sayes that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough or in Gavelkynd which lands are deviseable by will time out of mind c. whence they inferr that all gavelkynd-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
deviseable by custome So that the mistake ariseth by making that a categorical which is but an hypothetical proprosition and serves rather to ground an argument against the custome For if the writ of Ex gravi querela does lie there where there is such a custome then à contrariis it may well be argued that where a writ does not lie there is no such custome and it cannot be said to lie there for Fitzherbert speaks of places where it was never brought They say further that this writ of Ex gravi querela is a formed writ in the Register appointed by Law as the proper remedy of the Devisee where such a custome is and that therefore it hath been required by the Judges as a necessary proof of such a custome that it be shewen that this writ hath been used to be brought there where such a custome is alleaged to be 40. Assis pl. 41. and the opinion of Knivet 39. Assis Brooke Devise 43. In like manner as to prove a custome of intailing Copy-hold-lands it must be shewn that plaints in the nature of Formedons have used to be entred Heydons case in the third Report But they say that for proof of this custome in Kent there is not onely of 14. in the Register which all conclude secundùm consuetudinem Burgi or Civitatis not one precedent of any such writ for Kent but that it cannot be shewen that ever any writ of Ex gravi querela was brought for any lands in the county at large out of some City or Town And it is a question to whom such writ at large shall be directed there being no form at all in the Register of the direction of any such writ at large the form there to a City or Burrough being either Majori Civitatis or Burgi c. They say it could not be but that question must have arisen if not of the custome whether a will or no will for the trial of which there was scarce any other course at least none more ready before the course of Ejectments grew to be the practice then either for the Devisee to bring this writ of Ex gravi querela against the heir being in possession or for the heir being ousted by colour of a will to bring his Mortdancestor And therefore they think it not credible that if such a custome were and so extensive as to the whole county of Kent there should be no Record if there be they again challenge the other side to shew it whether any Deviâ—ee either brought this writ or pleaded this custome and pleaded it must be as themselves acknowledge and is resolved in Launder and Brookes case for any lands within the county of Kent out of some City or Burrough when as they are confident to say that there is not any custome used in Kent and that extends through the whole county but Records may be shewen where it hath at some time been judicially pleaded and allowed They add that Customes being special Laws are suted to the place where they are used and that this is a custome very proper and sutable in Cities and Burroughs among Merchants and Tradesmen that they might dispose of their houses together with their personal estates and that the pleading of this custome in all Writs and Records is that they are legabilia tanquam bona catalla And therefore by the books of 40. Assis pl. 41. and Cokes 1. Instit 110. it is held that this custome cannot be alleaged in any upland Town Then how improper is it that all the estates in so great a county should be of no other nature in this respect than goods and chattels and liable to be disposed and carried away by words catcht from dying men which they say may serve too for an argument against the pretended benefit and utility of this custome especially when the multitude of controversies arising upon wills have made it a question whether it had not been better the Statutes of 32. and 34. Hen. 8. of wills had never been made And therefore they say that in Wyld's case in the 6th Report which was resolved by all the Judges of England it is said expressely and no doubt upon good consideration that at the Common Law lands were not deviseable but by custome onely in Cities and Burroughs Houses and such small things And in Matthew Menes case in the 9th Report where the will was of Gavelkind-lands in Kent and a house holden in Capite it is all along held that the will there was enabled by the Statute and puts a case of lands in London deviseable by custome as a stronger case which certainly it were not if lands in Kent were so deviseable The third objection from the words doner on vender they say deserves no answer more than this that the same words are used that the Infant may doner or vender give or sell his estate at the age of fifteen and that no man will say that he may at that age make a will Thus have you the learned Counsels arguments faithfully exhibited both for and against the custom of devising Gavelkynd-land in Kent before the Statutes of 32. and 34. Hen. 8. concerning the devising of lands by will Treading as I said in the steps of those who oppose the custome give me leave by the way of Corollary to add somewhat haply not improper to be hinted and insisted on in this argument Besides then the repugnancie in this custome to the common opinion both of ancient and modern Lawyers it fights with the very nature of Fee comprehending at least with us Gavelkind as holden by the Tenant in Dominico suo ut â—e Feodo which though Fees are with us as in France elswhere become patrimonial so alienable by gift or sale followed with Scisin in the Alienators lifetime yet by the seudal Law are indisposeable by will several reasons whereof are found rendred by the Feudists And it is inconsistent at variance with the common opinion of Lawyers both at home and abroad so withall and above all it makes Gavelkynd degenerate from it self and its first original which our Lawyers and Antiquaries by an unanimous vote referring to the Germans vouch for it that amongst other of their Customes published by Tacitus Haeredes successoresque sui cuique liberi nullum testamentum a passage or authority equally insisted on by the Feudists to warrant their Nullâ ordinatione defuncti in fendo manente vel valente prohibiting the disposal of Fee by will and of our municipal Lawyers and others as for the like so withall to illustrate the original of our Gavelkind But that which in this case as to matter of fact very much if not most of all works with me what it may with others I know not and induceth me to an utter dis-belief and rejection of this Custome is certain passages clauses in several wils extant to be found in our Registers at Canterbury and