his Lord let the Lord seek by the award of his Court from three weeks to three weeks to find some distress upon the Tenements untill the fourth Court alwayes with witnesses and if within that time he can find no distress in that Tenement whereby he may have Justice of his Tenant then at the fourth Court let it be awarded that he shall take that Tenement into his hand in the name of a distress as if it were an Ox or a Cow and let him keep it a year and a day in his hand without manuring it within which term if the Tenant come and pay his arrearages and make reasonable amends for the withholding then let him have and enjoy his Tenement as his Ancestors and he before held it and if he do not come before the year and the day be past then let the Lord goe to the next County Court with his witnesses of his own Court and pronounce there this process to have further witnesses and by the award of his Court after the County Court holden he shall enter and manare in those Lands and Tenements as in his own and if the Tenant come afterwards and will re-have his Tenements and hold them as he aid before let him make agreement with the Lord according as it is antiently said Nighesith yeld and Nighesith geld i. e. Let him nine times pay and Nine times repay Hath he not since any thing given nor hath he not since any thing paid let him pay V. lib. for his errour before he become Tenant or Holder again See hereof 10 Hen. 3. Fitz. Cessavit 60. statute 10. Edw. 2. of Gavelet in London In the Collection of Statutes London 2. matter much tending to this purpose that by this word Gavelet the Lord shall have the Land for the Ceasing of the Tenant I have read much to this purpose in Mr. Lambards perambulation of Kent but the whole hereof relates to a Writ of Recovery for default or non-payment of Gafol or Gable or Rent the word Gavelet which is nothing but the let hindrance or with-holding of Gavel Gable or Rent which Writ runs in London as well as in Kent and all of it nothing to our Tenure in Question To the same purpose is that which Mr. S. urgeth in his 12th page where he gives a Learned exposition which serves for a fortification as well as an explanation upon the word Gafol which he describes varied in the Dialect Testament Saxonic being written gafol gavel gaful and gafel and shews how it passes in Matth. 17. Vers 24 2 and cap. 22. vers 17 19. to signifie Tribute which I think may prove an acceptation thereof naturally enough and in Matth. 25. vers 27. it serveth to express advantage or usury and in King Withreds Laws of Sr. Henry Spelmans Edition of his antient Councils it is expounded to us by what it is commonly received Redditus vel persio and Mr. Selden in his notes upon Eadmerus renders geÆ¿â—â—ic gaful to signifie Solitus census the wonted or usual Payment or Rent But Mr. S. concludes thus To be short saith he Gafol is a word which as Gablum in Domesdey book the skilfull in the Saxon tongue with Sir Henry Spelman else where turn by what Gabella is expounded abroad viz. vectigal portorium Tributum exactio census c. in Latine but in English with Verstegan Tribute Tax or Custome whereunto Mr. Lambard and Sir Edward Coke agree upon which and to all Mr. S. craves leave to add Rent which I shall not in any wise deny him provided as I said before he will be contented with that exposition to signifie Rent and not go about for the sound sake to impose it on the Tenure for in this I would begg an information or rather satisfaction whether Gavelkind-land may not be and is not held without Rent which if it be found to be as I know it is generally used in Urchenfield and perhaps in other places also then doth it destroy the very nature of the Etymologye But with this part upon the mistake of the word Gavel in those compounds mentioned I have spoken sufficiently and further I will not trouble the Readers patience about it In the next place here are CHAP. X. Several Deeds cited by Mr. S. that have their Tenenda's ad Gavilikendam examined and expounded I Am constrained to run over the Examination of several Deeds produced in Transcript by Mr. S. and having finished the Discourse of the word Single and in Composition I am come to experiment the Tryal of it in the Term proper with its affix of which Mr. S. saith pag. 38. Thus for example in a number of Deeds and Conveyances which I have seen recorded in the leiger-books of the Cathedral at Canterbury and St. Austins late Abbey there phrased all of them after this manner Tenendum ad or in Gavelikendam c. I presume he hath cited the principallest of them and if so then I assure you I am not stumbled at any of them and first Pag. 39. for that Deed of the Sons of Wibaldus who did grant Infirmis de Herbaldune unam acram dimidiam terrae scil Langenekre cum fratre suo Wiberto infirmo in perpetuam Eleemâ—synam and to Gavelkynd Reddendo sibi duos denarios c. Mr. S. rightly collects from the mold and cast of that Deed the binding of the Heirs in relation to their gift for these Sons of Wibaldus and their Sons and Heirs and their Daughters do all joyn in the alienation of this Acre and an half to Herbaldune Hospital I will not trouble my self about the Deed to Quarrel at their Scrivener who seldome found dimidiam written for dimidium or believe that he might in his intermixture of and to Gavel-kynd make an ignorant coherence we will grant it all right and straight and take along with us what Mr. S. saith pag. 51. that such an expression as Tenendum in or ad Gavel-kynd or the like was necessary to render the granted Land partible after the Custome of Gavelkind without the help of prescription requisite in partible Land else where out of Kent and hereupon referrs to the pleading of Burga the wife of Peter de Bending put down and published in the appendix to his book Script 5. But the first he would have to be a gift or grant in perpetuam but not in puram Eleemosynam there is no more than perpetuam which whether it be or not is nothing to our purpose but the Reddendum as well as the Tenendum in that Deed hath somewhat not familiar for it is said there Reddendo sibi duos denarios c. which Sibi hath relation to Wiberto infirmo the last immediately before mentioned rather than to any other in that Deed for all other persons therein comprehended are by doubles as Nos filios Wibaldi Herbwinum Eilwardum Heredes suos Thomam Paganum with this also Hoc concedunt filiae suae Basilia
of wherein he affirms that the tâ—tm Gavelkind is not to be found though the Castom of partition is there in mentioned which without any great trouble all things considered might argue it to be a British custom yet confesses that the Parliament in the Statute of 34 Hen. 8. can 26. did make use of the word Gavelkind But how saith he questioning and then resolving it only as bâ—rrowed to help to Describe and Illâ—strate that partible quality of the Lands in Wales therein mentioned and that it was transmitted by our Lawyers who borrowed the term to make use of it foâ— Illustration sake But with pardon I shall â—ence â—â—ferr that it passed there as a most natural and genuine Expression and is properly a peculiar of their own upon the grounds before set down As for the antient Customs of the Kingdome of Ireland I am informed by the Irish that their Rhein-ta-loon which is their parting of Land is generally among the Comminalty and is like that oâ— the Country of Flanders where Daughters share as well as the Sons and spreads all over that Country also the like to which I shall shew you in Wareham in Dorsetshire in the next Chapter Râ—ein in the Irish is to part and I believe comes from the British Rhannu I have little to say except it be that when King John overthrew the Brehon Law Anno Regni sui 12. and then setled the English Laws that this Tenure of partition might probably receive a great abatement of its common usage and force among them who it seems have the foot-steps and remainders thereof very Visible unto these our days But in this I shall desire to be excus'd as not having informed my self sufficiently so as to make a satisfactory Discourse thereof confessing my self much ignorant in that History and shall proceed in the Discourse CHAP. VII Of soveral Customs of Descent of Lands of the welsh Laws of Partition of Knights-sâ—rvice and warâ—ship among them STill it is that Mr. S. goes about to confine the Knowledge of Gavelkind to the Circuit of Kent and will not allow it Gavelkind in any other Country but that For in pag. 49. he saith thus what else where 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 Gavelkind or if you please in Mr. Lambards expression all Socage-service here properly so called is cloathed with the apparel of Gavelkind 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 to Contra-distinguish it from Knights-service-Land But let a man go into Urchinfield in the County of Hereford and inquire of an Inhabitant thereof in what manner Lands there are held he will readily and speedily resolve him that they are subject to Gavelkind and as fully inform you of the nature of that their Tenure viz. that by it their Lands are all partible among the Males and in defect of them among the Females as other Lands of Inheritance are throughout England I have met with another kind and fort of Partition which I dare venture to call Gavelkind and is very unusual because by the Custom of the place both Males and Females have a right equally in the Partition I think it may not prove displeasing to insert the Record as it was shewn to me by my Industrious friend Mr. Falconbridge to whom for this and many others favours I must acknowledge my self with much-gratefulness Indebted and thus it is in the Office of the Chamberlains of the Exchequer of Receipt being the like as I find it in Flanders and the same with that in Ireland Dorset Placita de jurat is Assiss Anno 16. Edw. 1. Metingh Edwardus Kaynel Maria filia Roberti de Camma The Irish have the same manner of Partition Davies-Irish reports Jobannes Bereset Matill uxor ejus Johanna soror ejusdem Matill petunt versus Johannem Alfrith de Warham unum Toftum cum pertinentiis in Warham de quo Johannes Gerard. consanguineus predictorum Edwardi Mariae Matill Johannae cujus heredes ipsi sunt fuit seisitus in Dominico suo ut de feodo die quo obiit c. unde dicunt c. Et Johannes venit dicit quod Tenementa in Warham sunt partibilia inter Mascuâ—os Femellas dicit quod predictus Edwardus habet quasdam Gunnoram Matill Christianam Albredam Eufemiam sorores participes ipsius Edwardi aliorum petentium que tantum jus habent in re petita sicut c. que non nominantur in Bâ—evi unde petit judicium de Brevi c. Edwardus alii non possunt hoc dedicere Ideo consideratum est quod praedictus Johannes eat inde sine die c. This though it may seem strange yet may properly enough be called a Gavelkind for let the Custom of any place be according to the usual or unusual way of Partition it is but the Tenure of that place and will come well enough under that Denomination and that which Mr. S. brings in his 49th page as a Solution to an Objection viz. That it is no other than a Custom generally spreading it self throughout the whole Country in Land of that nature should have been thus laid down without confining it to the County of Kent viz. throughout any Country or all Countries in Land of that nature for so indeed it is In the Villages round the City of Hereford Item Lou per Custonie aâ—pel Burgh-English en ascun Burgh le fits puisn inherita touts les Tenements c. Littleton Lib. 2. Sect. 211. I find their Lands are all held in the Tenure of Borough-English where without difficulty I conclude that it is a Custom spreading it self throughout those Parishes and Villages in Land of that nature neither can it be otherwise but that the youngest Son ought to be and must by Law be found Heir so long as that Land remains under the same Services and Copy-holdings of their respective Mannours and the Suters here do as much stand upon their Customs as in Urchenfield they insist upon their Custom of Partition among the Males or as Wareham in Dorsetshire among both Males and Females another sort of usage in the Tenure of Burgh-English is mentioned by Sir Edward Coke upon * Lib. 2. Cap. 11. Sect. 211. Littleton in these words within the Mannour of B. in the County of Berk there is such a Custom that if a Man have divers Daughters and no Son and Dyeth the eldest Daughter shall only Inherit and if he have no Daughters but Sisters the eldest Sister by the Custom shall Inherit and sometime the youngest and divers other Customs there be in like Cases And brings in Britton to strengthen him and to confirm what I have said saying De terres des ancienes
admit But to run over some more of his Gables That which he discourses of in his 30th page is a For-gavel which is rightly rendred foris Gabulum and is defined to be quasi extra vel praeter Gabulum quod Domino capitali debetur and this corresponds with what before I have said that it was a Rent or a Duty besides over and above or beyond the Original contract or bargain The like is in Mete-gavel which is Cibi Gablum a Rent of meat or food Swine-gavel which is porcorum Gablum a Rent of Swine Werke-gavel and Werke-gabulum which is operis Gablum Hunig-gavel which is Gabulum mellis * For before that Sagar was from the Indies brought among us the use of Honey was frequent instead thereof So that I have observ'd in some very antient Rentals as great a proportion of Honey as there would be required of Sugar to seâ—ve such a Family and much reserved to the King in most Counties as appears by Domâ—sdey Rent Honey of which sort in Domesdey you may find much and in the 60. Law of King Ina we find a bere-gafol which is a Rent of Beer or rather Barley as Mr. Lambard expoundeth it For in some Countries of England and in Scotland they to this day call Barley Beer There is also in the 66. of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speaking of a yard of Land which Mr. Lambard renders to signifie Mercede conductam that is hired for Rent or Wages So is it in the Covenants betwixt King Alured and Guthrun the Dane In the second Article where it is said bu tan ðaem câ—oâ—le de on gafollande rit which Mr. Lambard renders thus Siquidem is Rusticus censum annuum impendens non fuerit which I think in English is provided that that Country-man doth not sit on Rented Land for But in the old English as well as to this day in the present Scotch signifies without or wanting c. There I find gafollande is turned into Census which is as much as I have need to make use of or take notice of In the Laws of King Aethelstan it is thus Æ¿ealisc monnes c. ê§ He ðam cyng gafol-gyldan maeg which is thus Translated Wallus si in eas opes creverit c. ut annuum Regi censum pendat which is if a Welsh-man increaseth so in Riches c. that he can or might yield a yearly Rent to the King Such a one perhaps as we call a Subsidy man or a Man in the King's Books So in the sixth of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is if any one Fights in the House of one that payes Rent and in the 22. of the same King that so often recited Law Æ¿ealH gafolgylda Hund tÆ¿ lftig â—cill which is turned into Latin thus Mr. S. pag. 33. Wallus censum pendens annuum c. in the same sense is the word Gavel-man cited by * Many there are that with Mr. Selden account gafol to signifie several things as tributum c. but not in the least with reference to the Tenure he cites the Aâ—â—ales Anglosaxoas In Bibliotheca Cottoniana Anno 1012. Ãa ê§ gafol gelaest sae frið aþas asporene Æ¿aeson þa to ferde se Here Æ¿ide sÆ¿a He aer gegaderode Æ¿as Ãa bugon to þam cynge of þam Here fif feoÆ¿ertig scypa Him beHeton ê§ Hi Æ¿oldon þysne eard Healoan He Hi fedan sceolde scÆ¿ydon id est Tributo soluto amicitiae juramentis praestitis excrcitus ut ante erat congregatus late dispergitur Maneb vit vero cum Rege ex ipso exercitu quadraginta quinque naves ipsique side datâ promiserunt se Terram hanc dâ—fensuros modo eos aleret vestiret Rex Danorum Rex tunc Swanus crat quorum ita pepigit Ethelredus Utrumque autem praestationis quam diximus genus Danegeld Danegeldum seu Danageldum id est Tributum Danicum dicebatur Seld. Mar. claus l. 2. c. 11. Here we may observe that geld is most properly Tribute though in the former part of this Saxon citation Mr. Selden renders gafol by Tributum and properly it doth signifie a payment Mr. S. which hath no more in signification than one that payes a Rent and relates not at all to the Tenure and I believe if seriously looked into that many of these compounds who have this similitude of sounds do not hold under or by the Tenure of partition which if so here were nomen sine re and this last may be a Term as significant for any one that payes a rent in Cumberland as in Kent In this recited page it is that Mr. S. hath rightly fixed his Gavel for saith he one thing more I have to note before I leave Gable Gavel c. that with Mala it fignifies Rents Services or Customs and in his 35th page he addeth by this time the Reader is satisfied I hope saith he touching the true construction of Gavel Gafol Gable or how ever else he shall chance to find it written in each importing Cens i. e. a Rent either in Money Provision or Works To conclude I am of the same opinion with Mr. S. that these intermixtures and compounds do all hold a reference to gafol Gablum or Gabulum that all of them have one and the same exposition yet that none of them have any relation to the Tenure of partition or to any other Tenure besides the Renting or paying of a Rent for Land c. There is only one thing more left to be considered which may seem to have in it some strength and that is in the 31. page of Mr. S. where he cites this postea per quandam consuetudinem quae vocatur Gavelate usitatam in Comitatu isto viz. Kanc de terris tenementis de Gavelkynde pro redditibus servitiis quae à retro fuerint de eisdem per plures annos devenerunt eaedem terrae in manus cujusdam Abbatis c. Now this consuetudo de Gavelate used in the Lands and Tenements held in Gavelkind seems the one to have relation to the other for Mr. S. in the beginning of that Paragraph tells us that this Gavelate was not a Reut or a Service but betokeneth a Rent or a Service with-held denied or detained causing the Forfeiture of the Tenement to the Lord and whereas that Record saith it was used in that County upon Lands and Tenements held in Gavelkind Sir Edward Coke as Mr. S. himself cites him saith Gaveletum is as much as to say as to cease or let to pay the Rent Breve de Gavelleto in London est Breve de cessavit in Biennium c. pro redditu ibidem quia Tenementa fuerunt indistringibilia So that this Brief lay in London as well as Kent and Minshew in his Dictionary upon the word Gavelet exemplifies it by a Case That if any Tenant in Gavelkind with-hold his Rent and his Services of the Tenement which he holdeth of
Board or Table and Cotarii were Cottagers such as dwelt in a Cottage * Anno 4. Ed. 1. Stat. 1. that is to say a House without Land belonging to it and comes from the Saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is the same with Tugurium and Tectum in Latin a â—egendo so as this is in signification a Cover or Shelter because those small Habitations were only made to cover them from the Sun and Weather I am not ignorant of that great mistake the whole Current of Writers have run into those whose Works have been published within these last 300 years where they generally endeavour to load all the indignities of Tenures of Servility and Vassalage upon this Norman change I deny not but that some were at that time introduced especially many Jocular Tenures which were the effects of private contracts betwixt the Lord and his Tenants and not of any general concernment but hence I cannot yield to conclude that all Tenures of Servility were of their introduction Mr. S. continues in his opinion in the 104th page where he writes That Fee-simple Fee-tayl Fee-farm Grand petit Serjeanty Escuage Burgage Villenage c. being all of the Norman plantation and we by them saith he at least since their Conquest of us brought acquainted with them c. perhaps those compounds might be the effect of the consultations of some of the Kings of the Norman race but for the word Fee Minshew discourseth very well upon it for saith he our antient Lawyers either not observed from whence the word grew or at least not sufficiently expressed their knowledge what it signified among them from whom they took it Feudum whence the word Fief or Fee commeth signifieth in the German Language * In like manner doth Mr. S. labour to deduce it from a Saxon original p. 107. Beneficium cujus nomine opera quaedam gratiae testificandae causa debentur and our of Hotoman saith that by this name go all Lands and Tenements that are held by any acknowledgment of any superiority to any higher Lord so is all the Land in England except the Crown land held that is of Feudum or Fee for he that can say most for his Estute sayeth but this Seisitus inde in Dominico meo ut de seudo which is I am seised of this or that Land or Tenement in my demain as of Fee which is no more than if he should say It is my Demain or proper Land after a sort because it is to me and my Heirs for ever yet not simply mine because I hold it in the nature of a benefit from another and Fee-tayl as distinguished was not an introduction of the Normans for that Minshew observes it to have its Original from the Statute of Westm. 2. c. 1. which was made Anno 13. Edw. 1. The word Feud is used familiarly to this day in the Higher and lower Germanyes For what concerus grand petit Serjeanty I believe the words to be French and so introduced by the Normans to express those Services that were due to the Kings of England before the Conquest such Services being reserved by the Saxon Kings The service of Escuage was before the Norman Conquest though not known by that name the like was of Burgage which is no more than a yearly Rent whereby men of Cities and Burrows held their Lands or Tenements of the King or any other Lord which was in use before the Conquest Concerning Villenage Mr. S. doth cite out of Mr. Lambards Perambulation of Kent in Mepham under the Term of Agenes-land this as a very antient passage which had been enough to have convinced me that there had been Villains before the Norman Conquest and it is this Et si Villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio alledio c. and in his 114. page citeth an old Version of the 19. and 21. of King Ina's Laws of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is made thereby to signifie Villanus or Colonus and it is convicted by Domesdey Book Survey in Sudsexe thus Radulfus tenet de Willielmo viz. de Warene BRISTELMESTUNE Brictric tenuit de dono Godwini Comitis T. R. E. modo se defendit pro V. hid dim TraÌ„ est III car In dniÌ„o est dimid car XVIII villiÌ„ IX Bordarii cum III car uno servo De gablo IV milia alletium In eadem villa tenet VVidardus de Willo VI. hid unam Vs. proâ—tanto se defendit Tres Aloarn tenuerunt de Rege Edwardo potuerunt ire quolibet Unus ex eis habuit Aulam Villani tenuerunt partes aliorum Duorum Here is an express of a Servus and also of the Villani who held this Land in the time of Edward the Confessour Besides this I could allege many more but Sir Edward Coke upon Littleton saith that Villani in Domesday are not there taken for Bond-men but had their name de Villis because they had Ferms and there did works of Husbandry for the Lord and they were ever before named Bordarii which is contrary to Mr. S. in what I cited before of him concerning Bordmanni which I believe is one and the same thing with Bordarii and such as are Bond-men are called Servi Thus Sir Edward Coke But I believe the Normans found these Villains here even by their name by which I believe they were of a very antient standing for that I find them known by the Britains by that Title as they are often mentioned in the Laws of Howel-dha in a Law which before in this 〈◊〉 I mentioned is notice taken of a King's Villain and of a Nobleman's Villain and then another that gives a right to the Foster-children of dividing Land with the Children of the Villein but a little more plainly to bring the proof in those Laws it is Demonstrated how that Tres homines promoveri possunt uâ—a die that is to say as I guess it they are made Gentlemen in one day here you must take the Latine as I found it Captivus si movetus in Swyd de XXIV officialibus Swyd is dignitas dignity so that the sense of it is this if the Prince bestows upon a Caprive the dignity of being one of the twenty four Chief officers of his Court it is an advancement peculiar or he becomes by it a Gentleman Secundus filius villani si sit clericus our common Law doth differ from the Civil Law which saith Partus sequitur ventrem where as the Common Law hath it partus sequitur Patrem but here provision is made that the Son of a villain being a Clergy man should become a Gentleman which is somewhat explained by the next Tertius Homo ex captiva villa si villa habeat à Domino patrie licentiam Ecclesiam aedificare in Cimiterio ejus corpora sepeliri tunc villa siâ— omnes homines de ea postea sunt liberi that
Britains Fol. 14 Repulsed by the Britains ibid. He Conquered not Britain ibid. Calumniare in Law what Fol. 65 Camolodunum Fol. 34 Cambria Camber Cwmrt Cwmraeg Fol. 86 Cantref what Fol. 96 Canutus his Laws of Partition Fol. 141 142 143 Caractacus Prince of the Silures Fol. 34 He asserts the British Liberty ibid. His Protestation before Battel ibid. Castles on Borders of Scotland c. Fol. 79 Cattel of more Valew than Land Fol. 28 Cattel dischaged Fines Amerciaments Fol. 29 Cerdiford in Hampshire out of Domesdey Fol. 65 Cennedl what Fol. 132 Characters of Saxon Fol. 76 Charters of Saxon signed by the Norman Kings Fol. 76 Changes from Villenage to Gavelkind Fol. 157 158 Chief Justice Fol. 69 Chiefs in Urchenfield Fol. 110 Chedder in Somersetshire Fol. 117 Children no Kindred to the Parents Fol. 131 Churle what Fol. 168 Cities their Original Fol. 7 Claudius his Temple Fol. 34 Claim and Recovery of Lands against Normans Fol. 65 Clergy-men Gentlemen by the Welsh Laws Fol. 173 Clown or Colonus what Fol. 168 177 Cohabitancia what Fol. 7 Conan Tindaethwy Fol. 26 Conquest and Conqueror what Fol. 56 Coverfeu Fol. 74 Constantine the Great Fol. 87 Common Laws Fol. 69 145 Counties not antiently in Wales Fol. 94 Competition betwixt Kent and Urchenfield Fol. 106 Cornish understand base British and Welsh Fol. 146 Cottagers and Cottages what Fol. 169 Cuntune in Hampshire Fol. 66 Customs that are antient Fol. 70 150 Customs of the Welsh Fol. 71 132 Cwmmwd what Fol. 96 Custom and Common right Fol. 152 D. D. DAvies his Welsh Dictionary Fol. 98 Danelaege what Fol. 54 57 58 Danish impression on our Laws Fol. 54 55 Daniel Samuel examined Fol. 57 Deeds for Gavelkind Fol. 124 125 126 Deeds explained produced by Mr. S. ibid. Discourses Polemical much irregular Fol. 3 Divisions intestine facilitate Conquests Fol. 16 Division of Wales Fol. 96 Domboc what Fol. 53 54 Domesman what Fol. 110 111 Donald the 5th lost Scotland to the Saxons c. Fol. 163 164 Ãâ—pihinge what Fol. 70 Druids Fol. 16 The British Judges Fol. 17 Their Learning ibid. Their judicial employments ibid. Their determinations of right ibid. Caus'd execution of penal Laws ibid Britain their Gymnasium Fol. 17 They cease Fol. 19 Dubritius Prince and Bishop Fol. 90 Dûn what it signifies Fol. 116 Dun a paix in Scotland Fol. 165 166 Dutch Landscheuten what Fol. 136 137 E. EDgar King his Laws what Fol. 54 55 Confirmed by the Conqueror Fol. 58 Edgar Etheling Fol. 60 Edlin expounded Fol. 49 Edward King his Laws Fol. 55 Confirmed by the Conqueror Fol. 58 59 Edward King his Laws concerning the Welsh Fol. 51 52 Edwin and Morchar Earls Fol. 6â— Edric Silvaticus or Salvage Fol. 7â— Eldest Son among the Britain Fol. 49 English recover Lands againsâ— the Normans Fol. 65 66 English Normaniz'd Fol. 76 England Fol. 87 English setled in Scotland Fol. 162 Engin or Urchinfield their Kings Fol. 44 45 Errors once received and taken for granted Fol. 2 Erdisley in Herefordshire Fol. 79 Escuage antiently Fol. 171 Ethelbert King his Translation of the Welsh Laws Fol. 53 Ethelred King his Laws of Tryal Fol. 64 Eubages British Philosophers Fol. 20 Exchequer when erected Fol. 74 F. FAshions Saxon and Norman Fol. 74 75 Fealty or Allegiance very antient Fol. 55 Fee feudum or feodum what Fol. 170 171. Fee-tayl its original Fol. 170 Feminine conduct amongst the Britains Fol. 33 Feofamentum vetus novum Fol. 140 Fighting forms chang'd by the English Fol. 77 For-gavel Fol. 118 Fortifications of Romans Saxons and Normans Fol. 77 78 79 Forfeiture of Lands upon what Grounds to King William Fol. 67 68 Fortalices Fol. 79 Fortified houses antient ib. Foster-children in Wales divided with Foster-brethren Fol. 28 Free-men or liberi homines what Fol. 108 French do use partition Fol. 11 French tenure of partition Fol. 12 French how used in our Laws Fol. 69 G. GAbles Gablum Gabulum what Fol. 113 114 115 Gabelle among the French Fol. 114 Gablum signifies rent Fol. 116 117 158 159 Gablatores Fol. 117 Gabella Fol. 123 Galfridus Monumethensis defended against Polydore virgil Fol. 83 Gallick customes Fol. 11 Gallick colonyes Fol. 12 Gavel as Mr. S. expounds it what Fol. 112 Gavel-Gyldam Fol. 119 Gavel-man Fol. 120 Gavelate a Writ Fol. 121 122 123 Gavel in denominations Fol. 89 90 In the British Dictionary Fol. 92 What it signifies Fol. 92 93 Not imposed by the Normans Fol. 95 Used in VVelsh subdivisions of Lands Fol. 96 Several sorts of Gavels Fol. 102 103 VVelsh Laws for Gavel-kynd Fol. 103 104 105 106 Gavel-kynd a mark of the Antient Britons Fol. 152 153 The hinge of the British Laws Fol. 155 156 Gavelkind in Scotland Fol. 159 Gavelkind Throughout the Kingdome of England Fol. 4 In all first Plantations Fol. 5 Antiquity of it Fol. 18 137 Among the Princes of VVales Fol. 24 The signification of it Fol. 26 The evill and mischief of it Fol. 27 81. The best use of it Fol. 27 That it is extra Cantium Fol. 89 151 Gavelkind in the Term owes it self to partition Fol. 149 Gavelkind in the Statute of VVales Fol. 98 Practised in Urchenfield Fol. 100 Held rent free Fol. 123 124 Gavel-kind Lands in the King Fol. 128 Granted to Hospitals how Fol. 124 128 129 Granted to Religious Societies Fol. 129 Not to be forfeited for Felony Fol. 106 107 Garrison of Normans in Hereford before VVilliam the first Fol. 78 Gentlemen by the British Laws Fol. 172 173 German Customes antiently Fol. 7 German partition in Principalities Fol. 9. 137 German partition in private Estates Fol. 9 German partition evicted by a jest Fol. 9 10 German Landscheutan what Fol. 136 137 Give-all-kynne Fol. 130 131 Gildas Camberius translated Molmutius Laws into Latine Fol. 154 Glamorganshire Conquered Fol. 94 Gothick work used by the Saxons Fol. 80 Guorongus Vice-Roy of Kent Fol. 41 Gueily-gord what Fol. 105 Gymnasium of the Druids was in Britain Fol. 17 H. HAcana and Westanheconi what Fol. 44 45 Hecanae VVulfhardus Episcopus Fol. 44 Hengist and Horsus Fol. 37 Hengists reception of Kent examined Fol. 37 c. How Hengist had Kent Fol. 45 He altered not the Kentish Laws Fol. 49 Heutland Fol. 90 Henry the first commands the observation of King Edwards Laws Fol. 61 His Laws of partition Fol. 144 Hereditary succession amongst the Britains Fol. 18 Heriot Fol. 108 Herring-gable Fol. 116 Highlanders in Scotland antiently Britains Fol. 160 Hony-gavel Fol. 118 Howeldha Fol. 25 He made not the VVelsh Laws Fol. 153 154 When those Laws ascribed to him were compiled Fol. 97 Hugo de port against Picot Fol. 66 67 I. I Arsey Isle Fol. 11. 95 No venemous Creatures therein ibid Ina King his Laws concerning the VVelsh Fol. 50 51. 64 Joseph of Arimathea Fol. 32 Irish Rhein-taloon or partition Fol. 99 Irish and VVelsh one Language originally Fol. 145 Irish and British Laws agree Fol. 153 Irish understand the Manc and Highland Languages Fol. 146 Ireland
the Vaughans of Brechnock-shire and many other Gentlemen who are termed Tylwyth Voreiddig 1. Gwgan ap Blethin 2. Cadivor ap Blethin Gryff Gwyr from whom the Families of Brechn Glamorg and Carmatthenshires come called Tylwyth Howel-Melyn that is Howel-Melyns Posterity Owen Gethyn from whom many Gentlemen in Brechnock-shire are descended called Tylwyth Owen Gethyn that is the Posterity or Tribe of Owen Gethin Here you see this Bard hath not onely vouchsafed unto us the Tylwyths arising out of this short Pedigree but also the very meaning of the word in the English Thus were their Memorials preserved by them who the better to infix them and also for a greater stimulum to Heroick Actions in their Songs deduced from Age to Age delivered to them from their Predecessors did celebrate the Praise of their Worthy Men which Custom in some places they yet retain And of so great account were these Bards that by the Laws of Howel-dha an honorable Provision was made for the chief of them in the Court who was to reside near the Person of the Prince and of so great repute was this Place or Office that to the Dignity was annexed a particular Refugium The use of these Tylwyths was to shew not onely the Originals of Families as if their work had been meerly to run over a Pedigree but the several Distinctions and Distances of Birth that in case any Line should make a failer the next in degree which is the same with the German Proximus Gradus may make an unconfounded use of their interest according to the Rules of Partition by their Gavel I told you before how in all their Pedigrees there was a preference of Primogeniture which was onely in honor and respect and not in unequal divisions of the Patrimony for in these the better to carry a light â—â—d lustre they pointed at the Penennedl of each Family who as the Prince of their Tribe and Kindred was always had in much honor and reverence among them Which respect was like that wherewith the Jews did honor their Chiefs mentioning them with that title of respect in calling them sometimes Heads of their Father's house other-while Chief men and in other places of Scripture they are made known by this account viz. By their Generations after the House of their Fathers and in this form did they inroll their Bands of Soldiers for the War for it is written in the Chronicles 1 Chron 7. and 8 chapters that David assembled all the Princes of Israel the Princes of the Tribes c. unto Jerusalem Numb 25.44 In like manner it is recorded in Numbers that the name of the Israelite that was slain was Zimti the son of Salu a Prince of a chief House among the Simeonites And in the following verse it is remembred that The name of the Midianitish woman that was slain was Cozbi the daughter of Zur he was head of a People and of a chief House in Midian Where this order of Partition was in force there is it most necessary that Genealogies should be most exactly kept and by the Mosaical Law so great care was taken in this point that the Tribes were not permitted to have mixtions together by Inter-marriages And although in many of the High-lands of Scotland they have lost this Tenure yet have they with much affection retained their respects to the Heads of their Clans calling them their Chiefs to whom in former times they gave more respect and were with more obedience commanded than by their Princes The Pedigree before recited I told you I gave to shew their manner of recording their Families of Gentry distinguished from their Pen-cennedl I have another that â—â—ows how tenaciously their Gavel was in force among them even in Regno adâ—unâ—o and how by it in process of time that Principality came to great loss and destruction Roderick the Great being Prince of all Wales had three sons among whom he divided his Territory which three sons were called y Tri Twysoc Talaethioc that is the Three Crowned Princes because every one of them did wear upon his Bonnet or Helmet a Coronet of Gold being a Broad lace or Hatband indented upwards set and wrought with precious Stones which in the British was called Talaeth by which name the Nurses do call the Head-band wherewith a Childs head is bound uppermost at this time as Doctor Powel hath critically observed But that it may be the more plain and perspicuous take it Genealogistically thus Roderick surnamed the Great Prince of Wales 1. Mervyn Prince of North-Wales 2. Cadelh Prince of South-Wales Howel-dha in whom the Territories of North-Wales and South-Wales were united and was the second Legislator of the Britans An. Christi 942. 3. Anarawd Prince of Powis After several Successions which I purposely omit to save the labour of needlesly lengthning the Line there from him proceeded one Convyn-Blethin ap Convyn who being Prince of Powis-land divided it to his two sons 1. Meredith ap Blethin who divided his appartment of Powis-land betwixt his two sons 1. Madoc who had upon the Division that part that was called Powys-Uadoc or Madoc his Powis He died Anno D. 1160. at Winchester and was called the Prince of Powys he was a true friend to the King of England Susanua daughter of Gruffyth ap Conan Prince of North-Wales 2. Gruffyth Prince of Powys had another share of Powys land 1. Gruffith Maelor had for his share Bromefield Yale Hopedale Chirk c. 2. Owen Vachan had Mechain-Iscoid c. 2. Cadogan ap Blethin 1 Owyn Brogynton a base son of Madoc ap Blethin had Dynmael and Edeirneon And Doctor Powel in his Additaments to the Cambrian History in those I mean that he hath set betwixt the years 808. and 810. gives a full Discourse of the Primitive use of this Tenure and also of the Modern abuse thereof For upon those great Feuds that arose betwixt the Descendants of Conan Tindaethwy upon this account of Partition He writes thus Here I think fit to say somewhat of the Custom and Tenure of Wales whereof this mischief grew viz. the Feuds betwixt Brethren the Rending the Government in pieces c. that is the Division of the Father's Inheritance amongst all the Sons commonly called Gavelkind Gavel is a British term signifying a Hold because every one of the Sons did hold some Portion of his Father's Lands as his Lawfull Son and Successor This was the cause not only of the overthrow of all the Antient Nobility in Wales for by that means the Inheritance being continually Divided and Subdivided amongst the Children and the Children's Children c. was at length brought to nothing but also of much Bloodshed and unnatural Strife and Contention amongst Brethren aâ— we have here an Example viz. the History of the Descendants of Conan Tindaethwy and many other in this History He means in Lancarvan's British History * I could wish that those Renowned English Plantations in America would examine of what avail
infamis ante fuerat per serment nomed videlicet XIV a Iudge Dodaridge in his Treatise of the Barons pag. 155 saith The Yeomanry or Common people for they be called of the Saxon word Zemen which doth signifie Common who have some Lands of their own to live upon for a Câ—rve of Land or Plough-Land was in antient times of the yearly value of five Nobles and this was the Living of a Sober man or Yeoman Cokes 9. part fol. 124. b. But in our Laws they are called Legales homines a word very familiar in Writs and Inquests c. homines legales per non si is habere eos poterit purget se duodecima manu c. so in the next number against those that break a Church or a Dwelling-house it is said se purget per XLII a Iudge Dodaridge in his Treatise of the Barons pag. 155 saith The Yeomanry or Common people for they be called of the Saxon word Zemen which doth signifie Common who have some Lands of their own to live upon for a Câ—rve of Land or Plough-Land was in antient times of the yearly value of five Nobles and this was the Living of a Sober man or Yeoman Cokes 9. part fol. 124. b. But in our Laws they are called Legales homines a word very familiar in Writs and Inquests c. legales homines nomes se duodecima manu c. so it is decreed for a pledge of any Thief that is fled or escaped Plegius ejus habebit IV. menses unum diem ad eum quaerendum si possit eum invenire juret se duodecima manu but this all looks on this side the Norman Conquest let us therefore pass beyond it lest any should be so inconsiderate as to think these cited Laws were not the Laws of the Saxons before the Conquest and in the XXXVIII Law of King Edward we find this concerning a person accused Si testarentur hominem de bona vita 2 legalitate purgaret se judicio comitatus c. and in the dayes of King Ethelred who was much infested with the Danes he took order for the like sort of Tryal which was then one of the sorts of and was called also Purgation where one that was accused was to take this course adjunctis sibi Thanis quinque omnem criminis suspitionem diluito and presently after in the same manner and almost in the same words it is repeated ascitis sibi Thanis quinque crimeneluito c. In the Laws of King Ina it is provided That there should be such a quantity of Land containing a certain number of Hydes requisite for the judging of some men for mis-demeanour as in the XLVII Law Si cui objiciatur furto surripuisse rem aliquam vel furtim subductam admisisse is pro ratione LX. hydarum se culpa liberato si modo dignus qui juret habetur Anglus furti postulatus duplici se purget numero Wallus majore juratorum numero non obstringatur Here you see the two last refert to the first and both to the number of Jurates which what they were was to them so well known that they thought it needless to set it down any otherwayes than by the number of Hydes which form occurrs frequently up and down in those Laws but in the XIX of the said King Jna's Laws I find somewhat that gives an explanation to the former recited Law where it is said Regii villici jusjurandum if he be a Master of a Family or a House-keeper ejus est momenti ac ponderis ut cum LX. Terrae hydis exequari intelligatur in the same manner was it among the Welsh where they were to the number of XLII as in several of the Laws of Howel-Dha and in the Epitome of the Customes of Arcenefeld in Domesday is to be seen which I shall for brevity sake omit Again the very Fabrick and make of all our Laws as now at present is not at all different from the antient way of contexture of them among the Saxons in their * Iudge Dâ—daridge in his Treatise of Nobility writes pag. 121. of a Treatise which he calls very antient denominated De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi Mickel-gemote and their Wittan-gemote both these together having received the Norman denomination of Parliament although the thing is one and the same But that which is of greatest perswasion and force with me is that they had in the time of the Norman Conquest contrary to the common received opinion the same way of making Claim for Lands and Titles as before which the word Calumniare doth signifie and which * Coke upon Lit. lib. 2. cap. 12. Sect. 234. Sr. Edward Coke saith was a word common to both if it proves so then probably used by the Saxons before the Conquest The controversie between Warren the Norman and Sherburn of Sherburn in the County of Norfolke Illustrated by Mr. Campden shews that all things in that age did not pass solely according to his will for notwithstanding the Castle of Sherburn was given by the Conqueror to Warren his great favourite yet upon the allegation of Sherburn that he did never bear Armes against him but was his Subject as well as the other and held his Lands by that Law that the King had established amongst all his Subjects The King gave judgement against Warren and commanded that Sherburn should hold his Lands in Peace This is cited as almost the only Act of favour the Conqueror did whereas it is mistaken for it was an Act of justice and such Cases do frequently appear in that Record called Domesday where I finde among others this concerning the Mannour of Cerdeford in Hantescire held by Hugo de Port. In isto Manerio tenet Picot 11. Vs. dimid de Rege Phitelet tenuit in alodium de Rege Edwardo pro Mannerio Istam terram calumniatur VVillielmus de Chernet dicens pertinere ad Mannerium de Cerdisord feudum Hugonis de Port per hereditatem sui Antecessoris de hoc suum testimonium adduxit de melioribus antiquis hominibus totius Comitatus Hundredi Picot contraduxit suum testimonium de villanis vili plebe de prepositis qui volunt defendere per Sacramentum aut per Dei Judicium quod ille qui tenuit terram liber homo fuit Ex Domesdei Hantescira TraÌ„ TainoÌ„r Regis Alwi filius Torber tenet Rocheborne Uluiet tenuit de Rege Edw. in Alodium pro manerio de ista hida i. virg quam calumniabatur dicit Hund. quod T. R. E. quieta soluta fuit inde habet Aluui Sigillum Regis Edw. Ex Domesdei Hantescire TraÌ„ TainoÌ„r Regis Edwinus tenet Acangre dicit quia emit de Rege Willielmo sed scira nescit hoc de hoc manerio calumniatur Prepositus Regis dimÌ„ hid ad pasturam Boum Regis Scira vero testatur quod
non potest habere pasturam nec pasnag de Silva Regis sicut calumniatur nisi per Vicecomitem By this we see they impleaded their rights against the King Ex eodem in eadem Scira Trā Willm̄i Arcuarii Isdem tenet Cuntune quinque Teini tenuerunt de Rege Edw. quo voluerunt ire potuerant Aldredus frater Ode calumniatur unam vs. terre de hoc Manerio dicit se eam tenuisse die qua Rex Edw. fuit vivus mortuus disaisitus fuit postquam Rex Willm̄us Mare transiit◠ipse dirationavit coram Regina Inde est testis ejus Hugo de Port homines de toto Hundredo Here by these you may gather several manners and several reasons and grounds of claimes then potuit ire cum terra sua quo voluit Sed Testes Willielmi nolunt accipere legem nisi Regis Edwardi usque dum definiatur per Regem c. Hugo de Port having the Mannour of Cerdiford from his Ancestors William de Chernet makes claim in his behalf against Picot who held some part of it and makes proof of it by the testimony of the chiefest and best of the Country and also of the most antient of all that Hundred Picot defendant produceth the testimony of the villagers and men of no account and Reeves or Bayliffs who offer their oaths or the ordinary wayes of purgation which was their Ordeales that he that held that Land was a Free man et potuit cum terra sua ire quo voluit that is as not dependant of that Mannour nor of the customes thereof might dispose of his Land as to him seemed best but the witnesses of de Chernet would not accept of the Tryal by any Law but that of King Edward till such time as the King had judged it this you must understand was about the eighteenth year of the King the English still insisting upon the Laws of King Edward which in case they had been repealed it had been a great vanity to have insisted upon them observe further that Picot intitles the King to it though the proof was de vili plebe of the scum of the people but that you may more plainly see what was the occasion and ground of forfeiture of Lands in those dayes and what course was taken for claims thereupon I will exhibit another out of the same Domesday in the same County where under the Title of Terra Tainorum Regis it is Recorded that Alwi filius Turber tenet de Rege Tederlec tres liberi homines tenuerunt in Alodium de Rege Edwardo Dicunt homines de Hundredo quod nunquam viderunt sigillum vel legatum Regis qui saississet Alwinum antecessorem ejus qui modo tenet de isto Manerio nisi Rex testificetur nichil habet ibi duo ex his qui tenuerunt occisi fuerant in Bello de Hastings The inquiry then made for to cause the forfeiture was this whether the Land did belong to any one that was in the battel of Hastings and there did take part with Harold against King William which is the same that Sherborn pleaded for himself against the Kings gift of his Land to Warren that he did never bear Arms against the King But in Berrocshire in the same Record under the Title of Terra Regis it is that Pandeborne jacuit in firma T.R.E. post tenuit Aluuoldus Camerarius sed Hundr nescit quomodo habuit Frogerius postea misit in firma Regis absque placito lege by which we may gather that notwithstanding the entituling the King to the Land yet the Candor and Integrity of the Surveyors at that time was such that they return it to be put under the Kings Rent absque placito lege without either hearing or Law that is unjustly for placita leges at that time were as much observed to evince the right of possession as possibly could be expected But to come to that common objection that our Laws are delivered to us in the French-tongue I shall not take much pains to confute it for that it is evident our antient Laws I mean the Common Laws of the Land are neither written or Printed either in French English or Latine or any other Language that ever I could hear of but still remain like that which Caesar reports of the Learning of the Druids who were our antient judges of the Law not committed to Parchment or Paper and may for ought I can perceive have that manner and Custome continued and retained from the Ages of the Druids Certain reports upon Cases of Law by several excellent Lawyers in our law French are rendred to us but we may as well say the Comment is the Text as imagine those studious illustrations to be the Law and some there are that probably believe because our Common-Laws were never reduced into a form or Body so as to receive a rendition in that or any other Language that the Kings in those first Norman times might undestand them who in their persons did publickly preside heard Causes and gave Judgement that therefore those Cases and Pleadings in French were preserved which Cases gave only the reason of the Justice of the Law as to the diversity of concernments of the Subject and upon this it is that Mr. Campden giving the reason that one of our Courts is called the Kings-bench Bancus Regius sic dictus saith he quod in eo Reges ipsi praesidere soliti c. Judices sunt praeter Regem ipsum cum interesse voluerit Capitalis Angliae Justiciarius alii quatuor and in likelihood the King in person sitting there gave the occasion in those times of the pleadings in French which otherwise could not have been understood by those first Norman Kings that did not understand English they addicting themselves in Letters in Discourses in Messages and in all things to the French Tongue I proceed now to the second particular which is looked upon to receive so great an alteration and that is our antient Customes though much upon this point comprehensively in the former discourse of our Laws hath been said where the Custome was antiently to claim Lands by the Country it continued so at this time of the Conquest as we see in many places of Domesdey-book where it is said Scira dicit Comitatus dicit Hundred dicit c. as in the Saxon Laws all was brought to the Hundreds and Shires so in the 34. Law of King Edward there it is of a ðrihinga which is the circuits of three or four Hundreds in a County et quod autem in ðrihinge definirinon poterat ferebatur in Scyram what could not be judged in the Hundred was brought to the Shire where at a certain place were kept the Pleas of the County and where were to be present take them as I find them recorded Episcopi Comites Vicedomini Vicarii Centenarii Aldermanni Praefecti Praepositi Barones Vavasores Tungrevii et caeteri
order their own Lands and Tenements one part they kept in their own hands and in them stately Houses and Castles were erected and made for their Habitation and defence of their Persons and the Realm also Forests and Parks were made there for the Pleasures Solace and Delight some were of a round Building of Stone for the most part Built upon a round pile of Earth either Natural but most commonly Cast up by man's Industry others upon a small rising or a plain Ground seldome more Capacious than to receive about twenty or thirty Men and were made rather to preserve the Persons and Goods of the Owners and his Servants and Tenants than to endure a long Siege of which sort there are many in Ireland because of their Antient intestine feuds but more upon the English and Scotish Borders many of which I have seen but with this difference as I said before that those the English did antiently Build were round and these for the most part square with one round Tower at one of the Angles both sorts of which were antiently called Fortalices and seldome made use of for Habitation because I find their mean dwelling Houses were made commonly under it or very near adjoyning to it And I discern a difference made betwixt those for Habitation and those I spake of that were only for a Safe-guard against sudden Inroads and Incursions for in Domesdey Book in the Survey of Erdisley in Herefordshire it is there recorded that ibi est domus defensabilis that is to say there is a dwelling House fortified which is now called the Castle of Erdisley and was Builded because of its Vicinity to the Welsh Borders and was intended by that Denomination to signifie more than one of those small Casties or Fortalices I lately spoke of these were the Strengths and Fortifications of those times most frequently in use I come lastly to speak of their Buildings in which there was something of an advantagious or at least an honourable change by the difference that was in the Mode of them I must confess the Norman manner was very noble and magnificent which by their Churches may be observed for the Saxons made theirs with Descents into them the Normans with Ascents the first made their Lights small and mean the second made them high and large these made their Arches stately with heights proportionable the others had their Arches and Coverings low and made their Walls of so great a thickness that they were a great Dammage and Impediment to the pleasure of their Lights when the Normans made use of no greater thickness or breadth in their Walls than would but well serve to bear their Height and Covering In the antient form of the Saxons before mentioned I have observed several Churches and pieces of other Architecture their entrances especially in their West-ends by Descents inwardly with Arches formed to correspond with those gradual Declensions and Steps all which shortning towards the greatest Door at the bottom of the Stairs over which for the most part was a finishing of a Semicircular piece of Gothick work and together made a kind of an artificial Perspective I have hitherto endeavoured in this tract to make it appear that for the space of 1700. years past we received no considerable Mutations or Alterations in our Laws and Customs That this our Tenure the subject of our present Discourse hath had the fortune to continue here from our British aborigines the first Planters of our Isle through those several changes and revolutions of Affairs and Governments that have hapned to it since that time and although in this Discourse preceding I may be thought to have walked a little beside the path yet I am perswaded I have not missed the way but kept and preserv'd the Goal in my eye Those alterations that are now found as to the general usage of this Tenure which was the Super-eminent custom of this Nation proceed not at all from any Enforcement or Coercion by reason of any of these forementioned Intrusions or Conquests but clearly by the consent and desire of the Proprietors and Persons therein concerned for in the County of Kent where Mr. S. saith this Tenure did generally over-spread there I say in the time of Hen. 8. several Lordships were discharged of this Tenure by Act of Parliament I have not all this while pleaded for the settlement or goodness of the Tenure to be used in this Age where Lands are well Peopled and fully Inhabited for it would be the destruction both of Lands and Linage but my business hath been to enquire into the state of the question the true Original Etymology and Use thereof The people of England by degrees have inextricated themselves from much servitude in their Customs and are now instated into a great privilege of Liberty and more particularly from those heavy pressures of Villenage the Slavery of which Custom hath received its Deaths wound in favorem libertatis for Sir Edward Coke out of Fortescue hath this note Impius Crudelis judicandus qui libertati non favet and gives this as the reason of it Angliae jura in omni casu dant favorem libertati the sense of Liberty was of so great force and power and the favour due unto it according to Law and Right of so great respect that those and the like pressures have received change and alteration and by the same power and equity joyned with the consent of the Proprietors it is so come to pass also that this our Gavelkind in most places of England is turned into the preference of Primogeniture for the preservation of Houses and Lands the next Chapter shall enquire though it seems to return far back whether we have any ground to believe that the CHAP. V. Trojan Brytains used the Tenure of Partition I Could not pass by without taking notice of a Marginal question that Mr. S. makes in pag. 54. and it is this By the way saith he how do our Britains claim descent from the Trojans Sith with them the eldest Son by Prerogative of primogeniture Monopolized the whole Inheritance I know not what Authors Mr. S. hath met with that he affirms so positively with our Britains the eldest Son did Monopolize all if his Sith with them relates to the Trojans I have nothing then left to answer to it nor do I think it worth the while to concern my self therein believing that neither Dares Phrygius nor Dictys Cretensis nor Homer nor any other pretended Trojan writer did intermeddle in the relation of Descent But I am perswaded it must have reference to the Brytains and that to them it is that he saith Sith with them the eldest Son Monopolizeth c. and notwithstanding I have some inducements to believe that Mr. S. asketh the question how our Britains claim Descent from the Trojans in Merriment and Jest yet in their defence to that very question there may so much be said which will carry a greater probability than any
the name but what referrs to the Tenure of Partition The Brytains enjoyed that part of Wales in the Saxon Governments and had not any fixed impression upon them by any before the Normans who over this County at last stretched their victorious Armes after many various successes on both parts and stout defence made by the Welsh for their Lands and proprieties enjoying it partly by force and partly by composition and agreement as the private family Histories do manifest which I have seen for there are several Familyâ—s of the greatest note in that Countrey that are able to produce testimonyes of enjoying their Lands and Birth in that circuit of Land for shires and Countreys are not of a VVelsh institution before the Norman Conquest so that by this it is probable they did not subvert all neither were they in quier about Abergavenny after the Reign of Henry Fitz Empress Gyraldus Cambrensis relates a series of their Actions in those parts But to leave these storyes I think it least of all probable that the Normans would borrow a â—entish word to denominate any thing to their British Tenants or plant it there as a Kentish Custome seeing in case the derivation according to Mr S's opinion should prove true this denomination was as much unknown to the Normans themselves as possibly it could be unto the Britains and alike to both of them if the Normans had found a necessity of making an intelligible expression and appellation of such a Custome of Partition certainly I should have met amongst them with the Roturier which I understand is in use over all France at this day and very frequently in Normandy the Island of Jersey parcell of the Norman Dukedome retaining still this Custome to this day under the name of the Roturier whilst her Sister Guernesey hath no footsteps of it but are as different in their Tenures as in the nature of their Soyl for in one as I am informed like as in Ireland no Toads Spiders or Venomous Creatures will live whilst in the other they have them in distastfull abundance But even now I touched upon the Saxon division of Shires and Countyes and told you it was not the British Policy which puts me in mind of that Order that was observed by the Welsh and rectified by Howel-dda in the ordering of his Principality with the carefull intermixture of civil-descents and military disposition wherein we shall find something to our matter in hand worthy the notice the description as Humfride Lloyd hath written out of the Laws and Ordinances of that Prince is in short thus First a Cantref which had its Denomination from one hundred Towns and signifies as much under which was so many Commots which the Welsh call Cwmmwd and signifies Provincia Regio Cohabitancia and confisted of twelve Mannours or Circuits and two Townships there were four Townships to every Circuit or Mannour and every Township comprehended four Gavels every Gavel had four Rhandirs and four Tenements were constituted under every Rhandir Of Gavel I have told you before that it signifies Tenura a Tenure Rhandir is a word that admits not of any proper Sign ficancy in our English speech but is by Doctor Davies rendred Pars aut Sors haereditaria from the Verb Rhannu Partiâ—i distribuere These divisions were set out by him as it were into a proper and peaccable Conveyance and Conduit-pipe for the Lands of his Principality which were lyable to this Partition so that we find in every Township four Gavels which were four great Holds or Tenures out of which I cannot find the Prince had any Rent for that the Gentry held their Lands very free from any base service only subjected to their Military policy and provision the Prince his own maintenance that so he might be obliged to a respect and care of every particular in his Principality was set out in every Cwmmwd or Commot which as I said before confisted of twelve Mannors or Circuits and two Townships which two Townships were belonging to the Prince thorough out each Commot in the Principality of Wales for in the person of this Howel the Territories of North-wales and South-wales were united as himself in the * M S. Penes Authorens Prooemium of his Laws doth declare This Gavel in the description aforesaid seems to be a large apportionment of Land belonging to a * Which by the Irish are called Canfimiy's and are the chief of their Gavels or Rhin-taloon See Davies his Irish reports Pen-cennedl or chief of a Family or Clan and doth per eminentiam signifie the Tenure that is to say their Gavel this being only or at the least most notably known by them So that every Pen-cennedl in his Gavel having four Rhandirs that is sortes or partes Hereditariae ready divided and apportioned for his Cennedl or Generation and not only so but also a sub-division of many Tenements under the Rhandirs shews perfectly a Gavel Tenure or Hold exactly observed even in their general partition of Lands and this so antient at least as the time when Howel-Dda collected these Laws which was about the year of our Lord 942. so that the true genuine Signification of all is Tot partes Hereditariae in Tenura that is each Gavel or Tenure did consist of so many Rhandirs or Hereditary divisions ready parted each of these Tenures being supposed to be so ordered as to admit of a Division and if need were of Sub-divisions also that so a Township might the more aptly be constituted for the execution of this common Tenure and these so holding in or rather by their Gafael were not only the antient Villati or Villani among the Brytains but also the Gentry Lords and Prince himself were subject to it The use of the word viz. Gavel to a proper Signification I have shew'd and that also Extra Cantium to which County Mr. S. doth labour to Monopolize it and the use thereof for several hundreds of year past even at such a time when the Correspondency in probability betwixt the Brytains and Saxons was so small and the Odium so great in respect of the unforgotten intrusion of the last that in that continued state of Warr it was not probable they would have accepted of any Saxon Customs by a name so insignificant to the thing as antiently the Etymology of it was received or so little to the matter as Mr. S's novel Exposition would render it or to the rational use thereof But I have already shewn in the fore-going Discourse in what sense the Brytains have received it and also what Doctor Davies in his Cambro-British Dictionary which in my judgment is an Elaborate and Critical piece hath said and exemplified thereupon for he it is that not only affirms Gafaelu by English Letters pronounced Gavaily to signifie Tenere to hold as before I have said But also Gafael by English Letters spoken Gavel the word in Controversie to be Tenura a hold But for the Statutum Walliae wich Mr. S. discourseth
the singular properties of that Land in Kent comes near to that in Urchenfield * Kanc. Rot. Tur. Lond. Claus 8. Rich. 2. m. 2. I grant they are the same in case of Felony for I find it Recorded Rob. Bonehatch was hanged for Felony the Sheriff of Kent seizes on his Land in Chertham held of the Archbishop in Gavelkind the King writes thus to the then Sheriff Quod Reginaldus Dyke nuper Vic. com predicti habuit inde annum diem vastum non obstante quod ex antiqua consuetudine approbata usitata allocata de Ten. que sic tenentur secundum consuetudinem de Gavelkind in hoc casu nos habere non deberemus annum diem neque vastum nec capitales domini inde escaetam set proximi heredes sic convictorum suspensorum haereditatem suam immediate consequuntur felonia illa non obstante this is the right of both and of all Wales I will not here compare the extent of the two Regions together but yet a small matter would perswade me to believe that at this instant day there is as much Land subject to Gavelkind in Urchenfield as there is in Kent And here first let us observe that the Land that is thus partible cannot be held or received to contra-distinguish it from knights-service-Knights-service-Land for if it be not held by all or most of those tyes and bonds by which knight-service-Knight-service-Land is invested it must then hold by some other servile or baser Tenures Therefore the honourable services of the Lands in Urchenfield by their Tenure are in gross Recorded in Domesdey book thus In Arcenefelde habet Rex C. Domesd penes Cam. Sccii homines IV. minus qui habent LXXIII car cum suis hominibus dant de consuetudine XLI Sextarios Mellis XX. solid pro ovibus quas solebant dare X. solid pro fumagio nec dant geldam aut aliam consuetudinem nisi quod pergunt in exercitu Regis si jussum eis fuerit These Ninety six men here spoken of I reckon them to be liberi homines yet such as held in Gavelkind and the seventy and three Ploughs with their men I look upon them to be their villani and both liberi villani to hold their Lands in Gavelkind for that I find all their Lands in that Territory which consists of two hundreds are so held to this day You find them free from payments and Customes antiently imposed upon the rest of the Nation because as a special remarque it is said nec dant geldam aut aliam consuetudinem unless it be to march in the Kings Army when they are commanded yet paying as the rest of Wales doth their Tatu-fooch and Talu-ffurn this last being the fumagium there Recorded and is a payment for fire whether Peter-pence or no I am not certain but incline to the negative because it is paid still to Lords of Mannours generally over Wales to this day But to cleer the distinction that I made just now of Freemen and Villains in Urchenfield that so I may not seem to speak without book I gathered it out of the same Record which in the next Paragraph gives a further account in these words Domesd Si liber homo ibi moritur Rex habet caballum ejus cum armis de Villano cum moritur habet Rex unum bovem The first seems to me to be Relief from those that held by Knights-service because his Horse and Armes when he dyed did belong to the King the second to be Heriot both which were antient British customes as you may perceive by the conclusion of all the Customes These men had the Chief Honour in the Army given to them for cum Exercitus in hostem pergit Domesd ipsi per consuetudinem faciunt Avauntwarde reverstone Redrewarde they did lead the Vann to fight and out of the field brought up the Rear These honours were not the least in those dayes I assure you no more than in our age I say these men enjoyed these and many other privileges with their Gavelkind unto this present day which being all compared with the Laws of Howel-dha seem to be the same with them as for satisfaction for murder for burning of houses c. all certified in Domesdey with this additional Paragraph in the conclusion Hae consuetudines erant Walensium tempore Regis Eduuardi in Arcenefeld I know not what could have been said more pertinent they have still this Tenure of Gavelkind and they have those other enumerated Customes derived to them from great Antiquity before the Norman Conquest which are all certified to have been Consuetudines Walensium Tempore Regis Edwardi and this by the convictum est of this Record so that it seems plain that this Custome of partition among the rest was devolved over to them as a Welsh custome which by the Laws of Howel-dâ—a I find was so paramount that unto it as to the Center all other provisionary Laws found among them do point and have reference and not probable to be here planted by imitation of any other forein nation or people But to return again to the competition this Region * Regio de Arcenefeld for so in antient writings it is called hath not only the like privileges in respect of Dower of the Moyety and no forfeiture of Lands for felony but also this that ibi non currit Breve Regis and in the Custody of the Chamberlains of the Exchequer of Receipt there is a Plea thus inrolled In Placitis coram Rege Pasch Anno 9. Majus Edw. 1. Heref. 32. Homines Hundredi de Irchinfeld à tempore quo non extat memoria placitaverunt placita sua habuerunt de omnibus placitis que ad coronam pertinent Sive de Appellis sive de transgressionibus contra pacem Regis solummodo coram Vice-comite Heref. non coram aliquibus aliis justiciaris this was exhibited in reference to some appeal made in derogation of the power of Irchenfeld to the Justices Itinerant but upon hearing it was adjudged thus Ideo Appellum remittitur in Hundredo predicto it was it seems then called a Hundred but in several other pleadings it is called Libertas de Irchenfeld and in case of Appeales or any thing else that was impleaded out of the Liberty I find that the Ballivus Libertatis de Irchinfeld came thither and oftentimes claimed those Liberties which were all ordered unto him that ever I yet could meet with for the use of the Liberty They have within that Circuit a Liberty to Arrest for any Sum of money whatsoever That whoever purchases Lands there may bequeath them to whom he pleaseth In Rot. 20 Ed. 1. penes Camer Sccii Recept as that of the 20 Edw. 1. between the Nephews of Philip de Martinestow and GlodithaÌ„ fil Mauricii fil Wasmaeri which said Gloditha pleads quod unusquisque qui terram habet infra Hundr de Irchenefeld de perquisito suo potest illud
Hawisia so that sibi in the singular number has not relation to any else but to the infirm Wibert To him it was that the two pence was to be paid and the profits of the Lands in common to all the infirm of that house in perpetual Almes And to Gavel-kind that is to say that all the Brethren of that Hospital should have the like share and propriety in that Acre and the Half as the Sons of any one could have in their Fathers Land of that nature and if not by this way I can find no other to make any sense of it for this clause And to Gavel kind hath reference clearly to the concession and Habendum and not to the Reddendum and if so who are those that should hold it in Gavelkind The Infirmes no for they were a body though sickly that could not dye Nor the Sons or Grand-children of Wibaldus for they had divessed themselves of this Land and invested their decrepit brother Wibert with the rest of the infirmes of that Hospital with it Nor could the Tenant claim any right by this Deed for that it hath not relation to any Tenancies besides Hospitals in those dayes did not use to create unprosetable Tenures to themselves and where Land is said to be held in Gavel-kynd there is an Estate of Inheritance they are Syncategorematical or relatives In the like sense is that Deed which Mr. S. makes his Script 〈◊〉 pag. 184. where RaduÌ„s From wadidit concessit 〈◊〉 Fratribus Hospitalis Sancti Laurentii juxtà Gantunriam by his Deed septem acras terrae meae saith he tenendas in Gavel-kynde de me heredibus meis â—â—berâ— quiâ—â—â— reddendo inde annuatim mihi vel beredibus meis XLII denarios c. pro hac donatione confirmatione dederunt mihi praedicti fratres heredibus meis quinque Marcas â—ierlingorum All that I can gather out of this is that Ralph Erone sold to the Brethren of St. Lawrences Hospital seven Acres for five Mark and reserved a Rent of two and forty pence the Land to be held of him and his Heirs in Gavel-kind which as in the other of Herbaldune so was this to be understood to be to the common land 〈…〉 and behalf of all the Brethren for if not so I desire 〈◊〉 informed how it could ruâ— into the Tenuâ—e of Glaver-lâ—ynd amongst them any other way and here alsoâ—eâ— me caution you to observe that in the first Deed it is saiâ— to be granted in perpetuam Eleemosyndm And 〈…〉 and then comes in with the Reddendum so like wise in the second Deed where the Tenondum and the Reddendum are at a distance that by means thereof it is not probable at all that Gavel-kynde should have any relation to the Reddenda in either and seriously considered doe plainly contain a different use from either Rents or Purchase But to proceed to those several grants produced by Mr. S. in relation to the Term as that of R. dei gratia Sancti Augustini Cantuar Script 4. shere somewhat is wanting I believe it should be 〈…〉 ejusâ—am loci conventus made to Jordanus â—e Sâ—res much his Heirs of XL. acres of Marsh-land be longing to their Mannour of Cistelet Script 6. and that of Alan the Prior and the Convent of Christ-Church in Canterbury unto Theb. de Einesford and his Heirs of fourscore Acres of Land in their Lordship of Northocholt by them to be holden by rent and Sute of Court at Orpinton ad Gavilikende Script 7. as also that of the same Prior and Convent to Stephen de Kinardentone of 〈◊〉 Acres and to his Heirs ad Gaveliâ—hinde Again that Deed of Gaufridus the Prior and the Convent of Christ-Church Canterbury to Joni and his Heirs of a Sheep Pasture in Osmundeseye Tenend Script 8. say they de nobissuccessivè ad Gavel-kynde by Rent and that his Heirs successively shall give de relevio LVIs. and Sute of Court at Leysdum All these Grantees had by the vertue of these several Grants an instatement into the Tenure of Gavel-kind which was an Estate of Inheritance and was to runn in a Parallel line with Lands of the like nature that is that the Sons or Children of the Possessor when Deceased should hold those Lands according to the Rule of partition in Gavel-kynd and there is no difficulty in them as I can perceive all that I find is that the Granters have Created an Estate of the Tenure of Gavel-kind in case there had been none before none of them to my apprehension carry with them any notable Antiquity Least of all to the purpose is that Script 5. in pag. 178. where it is said Predecessores Dni Regis concesserunt Manerium de Wells in com Cant. postea concessum erat in puram perpetuam Elcemosynam nunquam partitum fuit nec est portibile that is it was never parted nor is partible to which all that I can say is that it never was nor is like to be so holding gavel-kynd-Gavel-kynd-land But the passed discourse in this Chapter only shews the Nature and Tenure of such Lands And makes nothing at all to the Etymology or the investigation of the true derivation of the word in contest To conclude Mr. S. in page 150. draws from his several discourses a double Consectary as he is pleased to term it 1. That the King may hold Land in Gavel-kynde I must needs approve of it and in case the King doth hold such Lands and at his decease leaves several Sons behind him they must part it and that Princes have so done I have already proved by the several examples of the Princes of Wales and of the German Empire 2. That the King holding Land in Gavel-kind in case he shall grant it away to any Religious House in puram perpetuam Eleemosynam in frank Almoign it remaineth notwithstanding partible as before it came to the Crown in their hands at least whom the Religious men shall infeoff with it The first part of this I grant for if such Lands be given to any Religious society they remain partible as to the profits of them that is to say among the Society and so doth Land of any other nature whatever in the same manner being vested pass into a partible Quality that is the whole body having an Interest all members of that body receive part and share of the benefit but for any other sort of partition I cannot fancy how it should be among them And then again it doth not necessarily follow that those that are by this Society interessed with the holding of those Lands under them should hold them in the Tenure of Gavelkind for by such a Grant as I said before in this Tenure of Gavel-kind the said Society or body divest themselves of the fee-simple and invest the taker with an estate of inheritance And again this must have a full reference to the Society their manner of granting it and then it may
Insulae Britannicae quae sunt XII post haec ab inhabitationibus elongatur quo procedat ignoratur for the difference betwixt the two Languages is not so great but that we may upon good reason believe they were one and the same antiently nor so great a Dissonancy at this day between them but that the footsteps of a former union may easily be observed and * Mr. Selden observes a little of the use in the Defusedness of the antient Language saying Corwallensea in Anglia linguâ semper usi sunt Cambro-britannicâ saltem velut Dialecto variatâ uti etiam Aremorici in Galliis Manniae item Insulae incolae Hibernicâ unde tamen nemo est hominum qui velit sequi aut hanc Angliae Regibus quâ Hiberniae sive Domini sive Reges fuerint parere aut illos ex Cambro-Britannici principatû jure aliqâ— principibus suis subjacere Marc Claus lib. 2. cap. 19. the progress of Languages is a thing very well worth the observat on For by sundry discourses with several intelligent persons concern'd in the Languages and somewhat upon my own Observation I can make it out that if one of Base Brytany meets a Cornish-man that speaks the Cornish they with small difficulty will each understand the other the very Denomination of that Country being British for Armorica is derived from At Mor which hath no signification but from the Welsh and is upon or near the Sea with which the situation also agrees let a Cornish-man pass into Wales he will understand the Welsh and be understood of them A Welsh-man meeting with an Inhabitant of the Isle of Man that speaks the Manc-language both of them will understand one the others meaning An Inhabitant of this Isle a Menavian meets in Ireland among the Irish an agreeable Intelligence and the Irish with great facility communicate with the High-land Scots in their several Dialects intelligibly So that animadverting this Progression as I have linked them much may be inferred of Originals Customs and Manners among all of them having found the foot-steps of Gavel-kind by the Saxons deduced to the Normans and not altered by them Concerning which I have been larger before and in my next Chapter shew CHAP. XV. That in the Term Gavelkynd is not Partition Of free Socage and other Customs concerning Gavelkynd extra Cantium of the Antiquity of the Laws of Howel-dha THat in the Term viz. Gavel-kynd there is not any Partition is plain both by what Mr. S. apprehends of it thinking it to be derived from Rent and to signifie Genus Gabli vel redditus nor by what I have given in and exhited for my sentence that it signifies Tenura the â—enure per eminentiam of the Family or Genus Tenurae and so consequently may serve for an answer to one part of the question put by Mr. S. in his 42d. page where he saith Our next enquiry shall be whether Partition owe it self to Gavelkind either ex vi Termini or ratione rei and gives his opinion with me that ex vi Termini partition doth not owe it self to Gavel-kynd and in some considerable cases it is not enforced in the very use of it for in case a Father Dyes possessed or seised of such partible Gavel-kynd-land and leaves but one Son behind him this Land is not then to be parted which if it had been ex vi Termini it must have either ceased its use and force or else there must have been found out some other near Relations with whom the sole Heir had been constrained to a Partition the like whereof I could never read or hear was ever done This was very well understood by Littleton Lib. 3. Sect. 265. and explained by Sir Edward Coke in that Chapter of Parceners per le Custome for Sons saith Sir Edward are Parceners in respect of the Custom of the Fee or Inheritance and not in respect of their persons as Daughters and Sisters be c. And out of Bracton citeth this Et sunt participes quasi partem capientes c. ratione ipsius rei quae partibilis est non ratione personarum quae non sunt quasi unus haeres unum corpus sed diversi haeredes ubi tenementum partibile est inter plures cohaeredes petentes qui descendunt de eodem stipite semper solent dividi ab antiquo for such Lands belonging to a Family relate only to the Males in case of their existency but if not then to the Females So also we have it observed by Glanvil who denominates such as hold by this Tenure of Partition Liberi Sokemanni of whom he writeth quibus mortuis dividetur hereditas inter omnes filios si fuerit Socagium id antiquitùs divisum salvo tamen capitali messuagio primogenito pro dignitate Aesneciae suae ita tamen quod in aliis rebus satisfaciet aliis ad valentiam Si vero non fuerit antiquitùs divisum tunc primogenitus secundùm Quorundam consuetudinem totam haereditatem obtinebit secundùm autem quorundam consuetudinem postnatus filius heres est I shall not enforce any thing from the Custom of preference of Primogeniture to Socage Lands which were such as were non antiquitùs divisae and those to be but secundùm consuetudinem Quorundam which expression signifies a diminution both in respect of Age and Community nor of the Tenure which we call Burgh-English which whether brought in by the Saxons because of its name I cannot tell But concerning that which Glanvil setteth down as the most common Custom of the Kingdome and most antient as in his time it was received to be and the intent of his Paragraph which is to Counter-distinguish the Tenure of this partible Land from the Tenures of the Military fees where the eldest Son in England still Inherits of which sort there were not so many when William the Conquerour took his Survey of the Kingdome as after times did bring them unto when that no Land was permitted to be held free from the Military tenure not excepting the very Lands of the Church But he being so plain I shall not trouble you with a Comment and return to the subject of this Chapter which is that Partition ex vi Termini doth not owe it self to Gavelkind no rather Gavel-kind to Partition for I believe when at first this Partition was used and received into a common Custom those Users were enforced and obliged to find and invent a word by which their Custom might be intelligibly expressed rather than to make a Custom to the signification of the word but where the Custom of Dividing under the Title and Term of Gavel-kind was once received and setled with its appurtenances there it inferrs Partition and passeth as a common Law not only in Kent but in Christendome also To what Mr. S. saith by way of objection out of Bracton that he is express for a Partition ratione rei vel ratione Terrae if by it Relation