demeynes soit use solonque le antient usage del lieu dâ—unt en ascun 〈◊〉 le â—ient leu pur usage que le heritage soit departable entre touts les enfants freres sores in ascun lieu que le eigne avera tout in asâ—un lieu que le puisne frere avera tout Here you see several usages and the like with the usage of Warham and all according to the usage of the place which is their Gavel or Tenure But to return to that which is commonly received for Gavelkind which is a Partition among all the Males notwithstanding the existency of Females of which sort there are also many kinds some that consider the Elder as that in Urchenfield others that have a greater respect to the Younger as that in Wales some sort more free other sorâ— more servile yet in Wales it was all called per eminentiam Gavel as being the common Tenure there and indeed by my search among their Laws I could not perceive that they had any other And here I shall recite to you several Laws of Howel-dda one whereof inferrs Knights-service another Wardship and all of them their Gavel under the Community of Partition Ex leg Howeli Boni M S. penes Authorem The first is this Si quis habuit plures filios aliqui eorum vel ownes praeter unum mortui fuerint ille unus hereditatem omnem habebit si potuerit pro heredictate sua Domino respondere Here by Law care is taken that in case all the Sons should Dye except one then that that one ought to enjoy the whole Inheritance to which certainly he had no right that is as to the whole had the other Sons lived and the Law is so general that it referrs not especially to the Eldest or to the Youngest but to any of the Sons who all alike had the same interest and propriety Nevertheless this privilege is under a Condition and that is Sirpotuerit pro heredâ—tate sua Domino respondere this answering to the Lord is a comprehensive term of a Military duty and all other referved Exits of the Land and an those â—aws is the usual expression whereby both Military services and Mailes are understood The Law for Wardship is this Si terram hereditatis sue aliqua Parentela idâ—est Gueily-gord inter se non diviserit quamvis omnibus aliis defunctis non nisi unus unius supersit ipse terram habebit at si de Terra illa utpote deficiens jura sua Regi prestare non poterit Rex terram possidebit donec illesufficienter pro Terra possit respondere In this Law is not only an express of the Tenure of partition but also the service due to the King from the Land and a Title of Wardship to the King untill the service by the proprietor can be sufficiently performed And although Mr. Campden treating of the Court of Wards saith veteri enim instituto è Normannia deducto non ab Henrico tertio yet this shews the Britains had it before the Norman Conquest that our Policy was not wholly derived from beyond the Seas to make out which many writers are very fond but that antiently our Britains had that wisdom in themselves and such Politique Customs among themselves that shew the little need they had of borrowing from others and I believe this is as antient an express of Wardships as may be found certain I am it is the antientest I have met with and notwithstanding the Britains had it amongst them before their acquaintance with the Normans yet that which Mr. Campden writes may be true if he means only the Courts of Wards but the Tenure by Wardship enjoyes that antiquity I before have shewed But a little to consider the form and manner us'd in the composure of these Welsh Laws I observe that frequently it occurrs among them that the expression of the significatum in the Latine is explained by the British Term and was not in those times as some may imagine an ignotum per ignotius but a ready and prompt way to make the Laws facile and easie to the understanding of the concerned Subjects Aliqua parentela doth not so fully explain the design of the Law as it is with id est Gueily-gord which word turned into Latine signifies ex amore lecti aut concubitus and is derived from gwely lectus cubile and gordd Malleus it is c. the mawl of the bedde or the effect of beddmalleating an expression used by the Brytains to difference such Children as were legitimate born in the true bedd of Wedlock from illegitimate or such as were born in bastardy yet for these there was a provision in the Laws but that was ex patris benevolentia here in this Law the Title of partition is made out yet so that in all cases the Land must not be of necessity subject unto it for if the Legitimate Children have not divided the Lands and it should chance that all of them dye except one that one shall have all the Land upon that condition before spoken of But in case that the Land be divided among the Sons and after this division one of them dye what shall become of his part and apportionment This objection is solved by another of their Laws which that it may not want any thing to the full explanation thereof I will bestow the transcribing of it the rather because in all parts it confirms the British Tenure or Gavel and is this Si aliqua progenies inter se dividerit hered tatem post aliqui eorum defecerint pars eorum in manu Regis cadet quia alii partes suas secundum divisionis rationem habuerint here it is provided that the Progenies must inter se hereditatem dividere and then if any portioners dye after the partition the part or portion of the deceased Escheats to the King and the reason and ground thereof is there rendred Quia alii partes suas secundum divisionis rationem habuerunt because that each one had his share or apportionment according to the Rule or Law of dividing or parting But because Mr. S. doth write of the great privileges belonging to Kent by this Tenure I shall make in the following Chapter CHAP. VIII A Competition of Privileges betwixt Kent and Urchenfield MUch of my enquiry hath in these last Chapters been spent about the singularity of the Tenure of Gavelkind in Kent I now proceed to shew a competition in privileges betwixt other places subjected to this Tenure and Kent For that Mr. S. saith in his 53. page Kentish Gavelkind consists of many singular properties which may as well challenge a share and right in the customes name as may that of partition such as dower of the Moyety not to forfeit Lands for Felony and the like I believe not either partition or any of those mentioned privileges have a share or right in the name of the Custome which I shall discourse hereafter nor 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
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-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
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
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-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
and Thule called Britain Fol. 145 Italian partition Fol. 12 13 Juryes Fol. 61 62 63 Juryes among the VVelsh Fol. 64 Jus Angliae both in Socage and Knights-fee Fol. 139 K. KEntish-British Laws not altered by Hengist Fol. 46 Kent invested in Hengist Examined Fol. 37 Kent changes her Gavelkind Fol. 81 Kenneth King of Scots expels the Picts Fol. 163 Kent had four Kings at one time Fol. 45 Kingsland Fol. 44 King Ethelmund ibid King Pibanus of Ergin Fol. 44. 91 Kings Gorvodius Milfrith c. Fol. 45 Kings-Bench Fol. 69 Kindred what it is Fol. 130 131 Knave whence and what Fol. 176 Gods-cnave ibid Knight-service in VVales Fol. 103. 107 Knights-fees descended to the Eldest Fol. 138 Kynd Fol. 27. 130 131. 133 L. Land-scheutan German Tenure Fol. 135 136 137. Land-shifting Landskistan Fol. 136 The Saxon denomination of partition Fol. 143 The proper Kentish appellation Fol. 144 145 Land antiently not valuable Fol. 6. 28 Languages Of Scotland Fol. 76 Saxon English and French Fol. 75 76 English not changed by the Norman Conquest Fol. 75 Welsh the remains of the Gallick and British Fol. 17 Laws of King Edward confirmed by the Normans Fol. 58 59 Lawes-common not written Fol. 69 Law-cases ibid. Laws of England overthrew Norman intruders Fol. 65 Learning of the Druids Fol. 17 Legales homines or Yeomen marg Fol. 63 Lieutenants of the Saxon shores in Britain Fol. 39 Lempster from a Church of Nunns Fol. 44 Lewes in Sussex Fol. 71 Lesley Bishop of Ross in Scotland an Historian Fol. 163 Lewis Island in Scotland hold Gavelkind Fol. 160 Liberty of English-men Fol. 81 Liberi Sokemanni what Fol. 148 Llâ—â— what Fol. 90 Llanfrawtwt a College antiently founded Fol. 90 Llangattock Gafael Meâ—bon ibid Litthfield Chronicle Fol. 58 Loager Loegria Fol. 86 Lonaâ—â— Fol. 87 London a Memorial of Troy Fol. 83 London its Laws very antient Fol. 55 Lower Germany uses Partition Fol. 11 M. MAiles Fol. 120. 133 Mannours or Circuits in Wales antiently Fol. 96 Marquâ—ses Lords Marchers Fol. 42 Mayor whence derived Fol. 49 Menavians understand VVelsh and Irish Fol. 146 Merewoldus a King Fol. 43 Merimnus a King Fol. 44 Mercelin a King ibid. Merchenlaege what Fol. 54 57 Mate-gavel Fol. 118 Mickel-gemote Fol. 65 Military fees Fol. 149 Morgan Fol. 132 133 Monmouthshire Conquered Fol. 93 Mortimer Radulf Fol. 78 Mulcts different in rate in England Fol. 59 Mulmuâ—us Dunwallo British Legisâ—tor Fol. 154 His Laws Translated into Saxon Fol. 54. 154 N. NEifes what antiently Fol. 169 Normans Of their Conquest Fol. 56 57 Of their Alterations ibid. They altered not the English Laws Fol. 57 Of their Laws in Normandy or Neustria ibid. Employed in England before VVilliam the first Fol. 78 Their entring into VVales Fol. 93 Their original from Norway Fol. 58 O. OAth of Allegiance Fol. 55. 61 Oate or Oale-Gavel Fol. 113 Doin what Fol. 174 Ollavintone in Berkshire Fol. 73 Offa's Ditch a limit Fol. 43 Opinions received hardly removed Fol. 1 Ostorius Publius Fol. 34 P. PAganus Pagan what Fol. 168. 175 176 Palatinates Cheshire and Glamorganshire Fol. 94 Pandeborn in Berkshire Fol. 68 Parliament Fol. 65 Parceners per le Custome Fol. 147 148 Partition Used in first Plantations Fol. 6 Used by the Israelites Fol. 8 Antiquity of it by sacred and profane Authority Fol. 9 10 Made use of by Brute to his Sons Fol. 15 16 The Custom of VVales Fol. 28. 103. 156 Among Males and Females Fol. 100 101 Used by the Saxons Fol. 141 142 143 Used by the English Normans Fol. 144 Not in the Term Gavelkind Fol. 147 148 Whether ratione rei aut ratione Terrae Fol. 149 Continued in Wales by Statute Fol. 153 The manner of it among the VVelsh Fol. 156 Pencennedl's or chiefs among the Britains Fol. 23. 97. 132 Jews Fol. 23 Scots Fol. 24 Irish Fol. 97 Pelagian Heresie set against Fol. 90 Penda Pibanus King of Urchenfield Fol. 44. 91 Piben what Fol. 174 Picts They injure and repulse the Britains Fol. 36 The Picts wall ibid. Planters at first the condition of them Fol. 5 Placita what and Pleadings antiently Fol. 68 69 Pleadings in French Fol. 69 Pluntune Fol. 116 Powisland Divided Sub-divided and Parcell'd Fol. 25 26 Polydore Virgil examined Fol. 83 Privileges of Urchenfield Fol. 108. 156 Primogeniture preferred Fol. 82. 138 Price Sir John his defens Hist Brit. Fol. 84 Pride-gavel what Fol. 112 113 Primogeniture in Scotland wâ—y Fol. 166 R. Read-gavel Fol. 119 Reguli or petty Kings Fol. 15 45 Regulus and Rex Fol. 42 Referrees of Howel-dha what they did Fol. 155 Relief Fol. 108 Rents reserved Fol. 7 Rent how to be understood Fol. 115 116 Rents several sorts Fol. 117 Rented Land what antiently called Fol. 119 Rhandir what Fol. 96 Rodeley in Gloucestershire Fol. 112 Roderic the Great Fol. 24 Rogerus Deus salvet Dominas Fol. 177 Rochborn in Hampshire Fol. 66 Roturier of France Fol. 11 95 Rowena Hengist's Daughter Fol. 39 41 Roman Empire parted Fol. 87 88 Romans Altered not the British Laws or Customs Fol. 29 Greedy of Conquests Fol. 30 Their proceedings in the Conquests of Judaea Fol. 30 Of Greece ibid. Of Britain Fol. 30 31 They used words of the British Language Fol. 31 Set up a false Will for the Emperour Fol. 32 The effects of it Fol. 32 33 They desert Britain Fol. 35 S. Saisson and Saisnaeg how to be understood Fol. 86 Saxons They Co-inhabit with the Britains Fol. 37 They defended the Picts wall Fol. 38 Whether they extirpated the Britains or no ibid. They break their Article with the Britains Fol. 38 Their Piracies Fol. 41 They fail in their trust Fol. 42 They expell'd not the Britains Fol. 47 They borrowed many British words Fol. 48 49 They used British Laws and Customs Fol. 49 They intermix their Saxon with British Fol. 50 Their Laws provide for the British Inhabitants Fol. 50 51 52 They used Partition of Lands Fol. 141 Their Nobility who and what Fol. 70 Concerning their Characters Fol. 76 They wrote Latin antiently in Roman Letters Fol. 76 They change their forms of Fighting Fol. 77 Sand-gavel what Fol. 113 Sealing and signing of Charters Fol. 72 73 Serjeanty Grand and Petit Fol. 171 Servi what antiently Fol. 169. 172 Servitude not in England Fol. 81 Scotish Language Fol. 76 Scot and Lot what Fol. 78 Scotland Fol. 87 Scotish-Socage-Land Fol. 159 160 Scotish with their Language had the Saxon Customs Fol. 161 Scotish tongue before William the Conquerour ibid. Scots receive the English temp Willielmi primi Fol. 162 Scotish Tongue when first received Fol. 162 163 Scotish bounds in Scotland Fol. 165 Sherborn against Warren Fol. 65 Shires not antiently in VVales Fol. 94 Soc and Sac what Fol. 177 178 179 Socage Land changed Fol. 139 Socage Land antiently partible Fol. 89 139 Spersold in Berkshire Fol. 73 Surnames when first used Fol. 176 177 Sute and Doom in Urchenfield Fol. 111 Swyddog a Magistrate in Welsh Fol. 93 173 Swine-gavel what Fol. 115
Kingdom c. And after presently discoursing upon what by some Authors hath been affirmed viz. That either the Conqueror or his Brother Odo brought it thither out of Normandy and there planted it by the pattern and practice of his own Country with much reason adds for had it been from thence transplanted probably it would not have been confined to Kent a corner onely of the Kingdom but have spread it self rather over the whole by the Conquerors means whose inclinations and endeavours to propagate and implant here the Customs of his own Country are too eminent and notorious to be doubted of I may by the same reason argue that this Custom being Current in more antient times might have its being not onely in the time of the Saxon Government but its beginning long before And for my part I make no question but in elder times it was the custom of all Europe if not of all the World especially then when the inhabitants by reason of their paucity could so easily afford Ground and Room to their branching and spreading Generations Such thoughts had Thucydides of the first Plantations and Incolae of Greece For it is evident saith he that that which is now called Hellai viz. Greece was not of old constantly inhabited but that at first there were often removals every one easily leaving the place of his abode to the violence always of some greater number and every man so husbanded the ground as but barely to live upon it without any stock of riches and planted nothing because it was uncertain when another should invade them and carry all away especially not having the defence of Walls but made account to be Masters in any place of such necessary sustenance as might serve them from day to day They made little difficulty to change their habitations for the goodness of the Land increasing the power of some particular men both caused Seditions whereby they were ruin'd at home and withall made them more obnoxious to the insidiation of Strangers And a Modern Author out of Homer writing of those first a Salust cited by Mr. Selden in his Mare Claus l. 1. c. 7. de aborigiaibus in conjurat Catilinae saith they are Genus hominum agreste sine legibus sine imperio liberum atque solutum Planters saith In tâ—guriis atque antris habitabant ac sine legibus sine certis sedibus palantes vagerentur Et Trojanis temportbus in Sicilia describit Homerus illus aetatis imaginem Nec fora conciliis fervent nec judice tantum Antra colunt umbrosa altis in montibus aedes Quisquesuas regit uxorem natosque nec ulli Incommune vacat socias extendere curas Then was it I believe that they prudently used this kind of partition which extended it self no further than a division of Stock and Goods by it equally to enable all the Participants to settle to a Livelihood and decline Rapine which was the use and practice of the first Incolae This is also described by thucydides discoursing of the antient Greeks reporting That they in old time and such Barbarians as in the Continent lived near unto the Sea or else inhabited the Islands after once they began to cross over one to another in Ships became Thieves rifling the weaker and made this the best means of their living being a matter at that time no where in disgrace This saith Thucydides of his own Age is manifest by some that dwell on the Continent amongst whom so it be performed nobly it is still esteemed as an Ornament It was in those elder times that Riches consisted not in having a propriety to Land but rather in the numbers of Servants to manage and defend their great Stocks and Herds of Catel And this I guess to be the reason why many have rationally derived Pecunia from Pecus and * It was long after the first Plantation of our Island that Money was in use and longer before the King's Dues were paid in Mony For Judge Doderidge out of Gervasius Tilburiensis a learned man who flourished in the days of King Hen. 2. in his Dialogue of the observation of the King's Exchâ—quer hath in effect as followeth Until the time saith he of King Hen 1. the King used not to receive Mony of their Lands but Victuals for the provision of their House and towards the payment of their Soldiers Wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in parts beyond the Seas needed ready mony for and towards the furniture of the Wars and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realm far distant from their dwellings the King directed Commissions to certain discreet persons who having a regard of those Victuals should reduce them into reasonable sums of mony the levying of which sums they appointed to the Sheriff taking order withall that he should pay them at the Scale or Beam that is to say that he should pay sixpence over and above every pound weight of mony because they thought that the Mony in time would wax so much the worse for the wearing Ex Camden Littleton Treatise of Nobility pag. 118 119. Pecunia in our antient Saxon Laws is often made use of for Pecus And then we must imagine them rather Pastors than Landlords such who changed their Lands at pleasure and their habitations together for the better accommodation of their Stocks wâ—ose wealth was summ'd up as Job's by Servants and Catel But as People multipli'd and their numbers increased so that they had not conveniency of wandring as formerly by the reason that Lands were generally occupi'd according to the abilities of Families in their Stocks and numbers of Catel then did Land also by degrees become impropriated observing nevertheless the same manner of partition of such Lands as before they had done of Goods for as before when they might have had Land enough what should they have done with it without Stock so now when Land was impropriated what should they do with Stocks without Land And for fear of that violence I before discoursed of came first of all Cohabitancia that is living together in Society which without any disgrace was Villenage and so from Families rose Villages and from them Cities By this means we see how men came to be proprietors both of Lands and Goods of which Tacitus makes observation among the antient German customs Caeteris servis except those onely employed about Merchandisâ— non in nostrum morem descriptis perfamiliam ministeriis utuntur suam quisque sedem suos penates regit Frumenti modum Dominus aut pecoris aut vestis ut colono injungit servus hactenus patet Here was their antient manner of living their antient manner of reserving Rents not unlike those which I have met with in Scotland and believe is in
who it seems hath some preference by his Primogeniture his Gown undertaking to shew them a way of Composure The Duke granting for diversion rather than from any expectation of solid counsel his desire the Jester retiring into the conveniency of a near-adjoyning Closset with his Penknife cuts the Gown into long shreds from the shoulders to the bottom and in this injur'd and spoil'd form returns with it on to the Duke and Council who wondring at this fancy He told them That the Dukedom as yet was like the Gown as it was lately perfect and in order but that which was now insisted upon was to render the Dukedom as he had done the Duke's Gown But to prevent the like mis-hap among other such Participants in these our days the late Duke of Brunswick did during his own life apportion his Principality to his three Sons leaving to each of them their Allotments intire who also might each of them have claimed share in one and the same provided it had not been ended by Comprimise The like Tenure among the Heritors of Lower Germany is very frequent especially in the County of Flanders Mr. S. hath saved me the labour of shewing the usage of it in France demonstrating how it takes place even in Paris it self where it is called by the name of the Roturier by which name in like sort the Tenure is also known and used over all the Island of Jersey excepting some few Families and in the same manner it overspreads all the Dukedom of Normandy this last-mentioned Island being formerly an Appurtenant thereof All which considered makes it seem to me to be nothing but the Relicks of those antient Gallick Customs taken up and used upon the Plantation of this part of the Continent at the first and from hence in probability it is as some imagine that the Britans of England must look for their true Ancestrie both as to Customs Language and Progenitors concerning which I shall refer you to Mr. Camden whose labours have set up such a light as can never be extinguish'd who discoursing of the first Inhabitants of Britain misdoubting the History of Brute faith That hereupon it may be concluded That the antient Gauls Inhabitants of the Country now called France and the Britans of this Isle spake one and the same Language and by necessary consequence the Original of the Britans is to be reduced unto the Gauls for me must confess that France or Gaul was Peopled before Britain as lying nearer unto Armenia And that the Gauls sent out and planted their Colonies all abroad in Italy Spain Germany Thracia and Asia much more then by all reason and congruity in Britain so near and no less plenteous than the rest And Dubartas doth observe that most probably all Plantations were by Colohies out of the East which in time as it were gradatim overspread the West and North and not * Martiaus Zeillerus in his Hispaniae Lusitaniae Itinerarium out of a deseription of France wrote by Franciscus de Rues writing of the Province of Bigoâ—re tells us by way of wonder and special remarque that Mos hic obtinuit ut primogenitus omnium bodorum paternorum haeres evadat sive nobilis sive ignobilis onely France but Italy it self the Garden of European Policy which some would have to be a Colony also out of Gauâ— thinks no dishonor to retain her old Customs in preserving this Tonure of Partition of Lands from her first Planters Which was observed by one William Thomas that wrote a desâ—ription of Italy Anno Domini 1549. who in his third Chapter averrs That the Inheritance of Lands in Italy goeth by Gavelkind that is to wit one Brother as good part as another So that if a Conte which is as much to say as an Earl have twenty Sons every one of them is called Conte and the youngest hath as good part in his Father's Lands and Goods as the eldest unless it be in the Estates of Princes as of Mantoua Ferrara Urbino and such others which the eldest evermore enjoyeth And by this means it is come to pass that in process of time with change from Wealth to Poverty there be divers Earls and Marquises without Land or Goods retaining nevertheless the glory of that name to them and theirs for ever And I have read in a more Modern Author who doth not ascribe it to any reason but onely relates the bare State that there be several Counts in Italy who at the same time such is the smallness to which their Estates are reduced by this partition are not able to maintain a Horse a Hound and a Whore Mr. Thomas hath hapned right upon their Tenure though he denominates it by such a Term as is utterly unknown to any Italian but observes that the Tenure is generally among the Families there excepting those who of latter days by force or fraud have wrested themselves from the Dominion of the Roman Empire and in such places the eldest Son inherits whilst the other Families still maintain their old Customs though to the ruine and subversion both of Names and Families Which Custom cannot fancy to be an Innovation of latter Ages but an Impression from the antient Inhabitants when first they did spread themselves in Colonies over Latium This for the proof of the general usage of this Partition of Lands in most parts of Europe and the probability of its use amongst the first Planters of any Nation Proceed we next to shew as being very consonant to the investigation of the Original of this Tenure CHAP. II. The Condition of the Britains when Caesar found them That Gavelkind was antiently among them Of the British Judges the Druides of their Bards Of their Tylwyths Of their manner of Partitions and Laws concerning their Gavel JUlius Caesar resolving upon a War against the Britains for their frequent assisting the Gauls had in the first place to do with the Cantiani whom he Ennoblisheth with the Character of being more civil than the rest of the Britains and renders the reason to be their fire upon the Shore and so the more adapted for Traffick and Commerce with the Gauls who were generally then more civilized than they These Parts upon Caesar's * Beda cap. 2. writing of Caesar's preparations to invade Britaany saith Navibus ectoginta praeparatis in Britanniam transvehitur ubi acerbá primum pugnâ satigatus deinde adversà tempestate correptus plurimam classis partem non parvum numcrum militum equitum verò penè omnem disperdidit Iterum in Britanniam primo vere transvectus dum ipse in hostem cum ingenti exercitu pergit Naves in Anchoris stantes tempestate correptae vel collisae inter se dissolutae sunt Ex quibus 40 pericrunt caeterae cum magna difficultate reparâ—tae suat Caesaris equitatus primo congressu à Britannis victus ibidem Labienus Tribunus occisus est second Invasion first yielding themselves unto him the Second Invasion I term
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
Coronatus est in Regem de Wight manu Regia paulo post Quemadmodum Richardus Rex secuadus cum Robertum comitem Oxoniae qui Marchiâ— Dubliniae Dux Hiberniae fait Regem Hiberniae creare destinarat se interea Insulam illam non minore quam Regis tametsi Domini nomen tunc uti etiam usque ad Henrici Octavi tempora posteriora Regis ibi vicem omnina suppleret titulo ac dignitate possidere proculdubio non dubitavit By which Custome brought down so near our age and deduced from the practice of antient times it is no wonder that we find so many in several ages dignified with that Title either as an especial mark of Honour or by the privilege of descent as the Earls of Derby at this present are with the Title of Kings in Man was an antient Custome among the Britains and after them of the Saxons to give the Title of Reguli to all Lords that had the Charge and Custody of * From this it was that in the time of Rich. 2. came up first the Title of Marquesses which is a Governour of the Marches for before time those that governed the Marches were called commonly Lord Marchers and not Marquesses as Judge Dodaridge hath observed in his Law of Nobility and Peerage under the Title of Marquesses pag 31. where in that Chapter he also adds this Paragraph well worth the reading After the Normans had conquered this Land it was carefully observed by them as a matter of much moment and a point of special Policy to place upon the confines and borders of the Britains or Welsh c. not then subdued men of much valour not only sufficiently able to incounter the inrodes and invasions of the enemy but also willing to make on-set of them and inlarge the Conquest These men thus placed were of high blood credit and countenance among their Countrey-men the Normans and in whose faith and power the Conquetor reposed special considence and trust and therefore in their Territories given unto them to hold their Tenures were devised to be very special and of great Importance and their Honours inriched with the Name and privileges of Earls of Chester and for the North-border of Wales created to be a County Palatine and the Barons of the middle Port of the South Marches were adorned in a manner with a Palatine Jutisdiction having a Court of Chancery and Writs onely among themselves pleadable to the intent that their Attendance might not thence be driven for the Prosecution of Controversies and Quarrels in the Law and as for the other part of the South Marches they seemed sufficiently fenced with the River of Severn and the Sea My business hath been to make it probable that these Reguli were Lords of Marches and Limits long before the Norman conquest to which I referr you neither were those Welsh limits fenced by Severn but for many hundreds of years by Offa his ditch Marches and Limits the names of many Honoured with that Title I can shew especially such as were Custodes or Keepers of that Famous Limit betwixt the Mercians and Britains set out by that Renowned ditch which Offa the King of Mercia drew a Memorial of some of them out of an antient * Hist M S. penes Author M S. Chronicle that I have I shall exhibit wherein such persons were not onely called Reguli but also Reges Penda saith this Anonymous Author did spread his Kingdome of Mercia very farr about the year of Christ 620. for he slew in Battel two Kings of Northumberland Saint Edwin and Saint Oswald and three Kings of the Eastangles Egric St. Sigebert Anna. The said Penda had by his Queen Kineswith sive Sons Wolfer Saint Ethelred Saint Merewald Saint Mercelin and one other This without a Name in this place was his Eldest Son Peada and two Daughters Saint Kynesburg and Kyneswith he Reigned 30 years Wulpher was the first King of the Mercians that received the Faith of Christ and he married St. Ermenild the Daughter of Ercombert King of Kent by his Queen St. Sexburge Germanus vero ipsius Westanheconorum Rex Sanctus Merewoldus married St. Ermenburg the Daughter of Ermenred the King Brother of the said Ercombert and by her had three Daughters all of them Saints two of their Names were Milburg and Mildrith and one Son St. Merimnus who being dead his Uncle St. Mercelin did Reign in his stead Here be several Kings whose Names you will hardly find in the Chronicles But * M S. vol. 4. in Biblioth Bodl. Leland in his Itinerary reports out of some Books in his time found in Religious houses that this Merewaldus whom he calls King of the Marches built a Monastery for Nunns at Lempster which in the Britsh is called Lian-Llieni Lleian signifying virgo Vestalis Sanctimontalis in English the Church of Nunns and endowed it with all the Land thereabout saving onely the Lordship now caulid Kingesland after these successions in this small Kingdom I find one Ethelmund was also King of the West anheconi who were the Inhabitants of the North-west parts of Herefordshire certain to be so not only by the places mentioned in that Tract of Land but for that I find one Wlfhard who by Bishop Godwin is doubtlesly mistaken to be put as Successor to Utellus but should have his place betwixt Podda and Ecca Bishops of Hereford in his signing to the Charter granted to the Abbey of Winchelcomb Anno Dom. 811. writes himself thus Monast Angl. pag. 127. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego Wulfhardus Hecanae Quae nunc Herefordiensis dicitur Episcopus consensi subscripsi And Math. of Westminster writes that he was Bishop of Hereford in the year of our Lord 765. at that time when Offa King of Mercia procured of Pope Adrian an Archbishops Seat at Lichfield Many other Reguli were in these Merches for they did consist of several frontier Jurâ—sdictions I have found some very antient as of Pibanus King of Ergin now Urchinfeld the Grandfather of St. Dubritius the Archhishop of Caerleon in the Reign of King Arthur of one Gorvodius King of the same place after him But I cannot let pass that which I found in a Record transcribed into a Register book of one of the Bishops of Hereford certifyed as I guess from Innocent the third concerning a donation to the Church of Hereford wherein the Donor is termed Regulus his name at present I do not remember but reforr it to another place he is said to fortifie his gift to the Church in it to be in plena Regia potestate Milfrith the principal Benefactor if not Founder of the Minster at Hereford is denominated sometimes Regulus sometimes Rex Four Reguli in Kent at one and the same time witnessing to a Charter of one of the Kings thereof In the time of Julius Caesar Cambd. in Brit. Quatuor erant Reguli qui Cantio praeerant Cingetorix Carvilius Taximagulus Segoâ—ax upon
whereas there is no more in it than the plain acquisition or getting of this Realm of England after his pretences from King Edward the Confessour were made known as in the following Tract appears by the constraint and force that Harald put him unto to get his Settlement by Battel with him which word of Conquest is to this day familiarly used in Scotland to signifie Land purchased and Mr. John Skene saith upon the word that Conquestus signifies Lands quhilk ony person acquiris possessis privato jure vel singulari titulo velâ—ti donatione vel singulari aliquo contractu Quhilk is conform to the Civil Law ubi quae stus dicitur lucrum quod ex Emptione venditione locatione conductione vel generaliter ex opera cu jus descendit l. coiri 7. cum seq ff pro Socio and further writing of Lands so purchased concludes Conquestus dicitur ratione primi conquestoris cum transmittitur ad ejus haeredem exuit naturam conquestus induit naturam haereditatis Norman Conquest concerning which also we have so great a plenty of Writers that they almost extinguish the Truth with their Comments and Conceits all the alterations imaginable are father'd upon this revolution and summ'd up by Mr. Samuel Daniel in these words I come to write of a time meaning this Norman affair wherein the State of England received an alteration of Laws Customs Fashions manner of Living Language Writing with new forms of Fights Fortifications Buildings and generally an innovation in most things but Religion I make choice of this Paragraph of so Elegant an Author as Mr. Daniel who hath deserved very well from the Common-wealth of Learning for his ingenuous Observations to examine the particulars of this great mutation so generally imagined which enumeration will also afford us the method of our Discourse concerning that which hapned to the English at that time and first of all concerning the Alteration of our Laws which is the principal matter of our enquiry of which among many Mr. Camden himself hath thus written Victor Gulielmus in victoriae quasi Trophaeum antiquatis pro maximâ parte Anglorum legibus Normanniae consuetudines induxit causasque Gallicè disceptari jussit Yet presently adds propositis igitur legibus Anglicanis Merchenlage Danelage Westsaxenlage quasdam reprobavit quasdam autem approbans transmarinas Neustriae leges quae ad Regni pacem tuendam efficacissimae videbantur adjecit But to evince this let us have recourse as near as we can to the Authors that were of that Age and seriously weigh what they deliver unto us concerning this matter Mr. Selden our of the Litchfield Chronicle cited also by my very much Honoured friend and incourager Sir Roger Twysden introduceth these words Anno Gulielmus Regni sui Quarto apud Londonias consilio Baronum suorum fecit summoniri per universos Angliae comitatus omnes nobiles sapientes sua lege eruditos ut eorum leges consuetudines audiret Et licet idem Rex Willielmus leges Northfolktae Suffolkiae Grantbrigiae Deirae ubi quondam maxima pars Danorum Norwegiensium inhabitabant prius magis approbaverat eas per totum Regnum observari praeceperat pro eo quod omnes Antecessores ejâ—s fere omnes Barones Normanniae Norwegenses extitissent quod de Norwegia olim venissent Sed postea ad preces communitatis Anglorum Rex adquievit qui deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vixerant patres eorum ipsi in eis nati nutriti sunt scilicet leges Sancti Regis Edwardi ex illo die magna authoritate veneratae per universum Regnum corroboratae conservatae sunt praecaeteris Regni legibus leges Regis Edwardi Unde per praeceptum Regis Willielmi electi sunt de singulis totius Angliae Comitatibus Duodecim Viri sapientiores quibus jurejurando injunctum fuit coram Rege Willielmo ut quoad possent recto tramite neque ad Dexteram neque ad Sinistram declinantes legum suarum consuetu inum sancita patefacerent nil praetermittentes nil addentes nil praevaricando mutantes Alderedus autem Eboracensis Episcopus Hugo Londoniensis Episcopus per praeceptum Regis scripserunt propriis manibus omnia quae praedicti jurati dixerunt c. Ingulphus Crolandensis also who was Chaplain to this King William and being himself somewhat concerned in this affair and so the more to be believed as an Agent writes a little more plainly than the last did thus Attuli saith he eadem vice mecum Lundoniis in meum Monasterium leges aequissimi Regis Ewardi quas Dominus meus inclytus Rex Willielmus autenticas esse perpetuas per totum Regnum Angliae inviolabilitérque tenendas sub poenis gravissimis proclamarat suis justiciariis commendârat eodem idiomate quo editae sunt ne per ignorantiam contingat nos vel nostros aliquando in nostrum grave periculum contraire offendere ausu temerario Regiam Majestatem ac in ejus censuras rigidissimas improvidum pedem ferre contentas saepius in eisdem hoc modo and the Title of those Laws is this Ces sont les leis les Custumes que li Reis William grantut à tut le peuple de Engleterre apres le Conquest de la Terre Iceles meismes que le Reis Edward sun Cosin tint devant lui which is in English these are the Laws and Customs which King William granted to all the people of England after the Conquest of the Land and are the same which King Edward his Cousin did hold before him And the like account given by the Litchfield Chronicle is found in the Laws of King Edward which though from him receiving the Denomination yet probably were Transcripts of a Date since the Norman Conquest for that in them is found an express of the Norman Settlement of them in which is also an account of the difference of the Rate of Mulcâ—s betwixt the Saxons and Danis or Norwegians and because of the â—â—ar relation the Normans had to the Danes it is said that King William made choice of those Laws and would have had them put in Execution as the Law of England Quippe cum aliarum legibus Nationum Brytonum scilicet Anglorum Pictorum Scotorum praeponderassent he praised and liked of this Dane-laege best onely this observe if it be worth taking notice of that not onely the British Laws come into the account but also they are set in the first place But King Williams desigment had this Effect and Issue for taking that resolution it is said Quo audito mox universi compatriotae regni qui leges edixerant tristes effecti unanimiter deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vix runt patres eorum ipsi in eis nati nutriti sunt
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
named Lloigria or Lloiger now differenced from the other parts by the name of England Saison that is to say Saxons who together with the Jutes a third sort of Provincials that assisted in the Conquest of this part of Brytanny are now under the single Title of English-men these Twmri also call the Speech generally spoken in England Saisnaeg that is to say the Saxon tongue Somewhat doubtlesly there is of extraordinary reason in these names of distinction and difference of Cambria Loigria and Albania in case we could recover it but I am afraid the truth in this point is lost for the Denomination of places from the names of men as it is an old and fond conceit so I think it an ill one * As itis remarked by Sir J. B. and may be worth the Enquiry and for my part I had rather believe that Brytannia is derived from the Greek word BRYTON which signifies Vinum Hordeaceum that Brytish Ale a Drink how Con-natural and antiently peculiar to the Inhabitants of this Island will be now needless to Discourse than that London is the refined Issue of Luds-town or England of Hengists-land or Scotland from one Captain Scoto But this antient Triplicite division whether the effect of Brutes partition or no I will not maintain yet it is recorded by the same Pens as give us our History of Trojanism and may serve very well in answer to Mr. S's Jocular question since his question is a question taken for granted Neither will I averr or much insist upon that action of Constantine the Great who beingâ—â— Brytain and so probably experienced in the British Customs that he upon this ground or custom of partition used among the Brytains his Country-men did Divide the then intire Roman Empire between his two Sons by him I say this division and partition was made be the reasons or grounds of it what they will and upon this Division were differenced and distinguished by the Appellations of the Eastern and Western Empires which afterwards again returning into a single Person came to Theodosius whom * Procop. Bel. Vandalic l. 1. c. 1. Procopius calls a most just Prince and a great Souldier he had two Sons who after his Death succeeded in the Empire Arcadius the Elder in the Eastern and Honorius in the Western Empires which is said to have been done according to the former division viz. That which the Emperour Constantine had made so that the use or custom of partition in Empire as well as in private mens Lands is of great Antiquity I proceed now to shew that there is CHAP. VI. Gavelkind in other places of the Kingdome of England besides Kent in the Principality of Wales Gavel used in denominations of places how used among the Welsh of the word Llan of the Normans invasion of the Territory of Wales the use of Gavell in the division of that Territory and exposition thereof in the Welsh Vocabulary Mr. S. is much given to think that this Tenure of Gavelkind is a singular appurtenance to the County of Kent For in the first page of his book as the Theam of his discourse he layes down this position that Gavelkind is a property of that eminent singularity in the Kentishmens possessions so generally in a manner from great antiquity over-spreading that County as England this day cannot shew her fellow in that particular and in his 54th page For other Country-mens communicating with us of Kent in the Tenure I conceive saith he it first came up by imitation of our example in Ireland especially and amongst the Welsh-men in whose Vocabulary or Dictionary the word is sought in vain as it is also in that old statute which concernâ— them viz. Statutum Walliae To evince this besides the knowledge of several other places in England that have this Tenure eminently unto this day somewhat that Mr. S. himself doth confess in his Tract will help to cleer the contrary as in particular where he testifies pag. 48. that Socage Land in general and by the nature of it is capable of partition and by Custome may be and in many places extra Cantium is partible Now so it is that there is no County in England but have Lands held in Socage Tenure and upon that reason are capable of partition but more especially in Wales where the word is in use among them and more to a just and proper signification than in any other place or by any other Language as I shall shew anon But Mr. S. from its very denomination under the notion of it I mean would perswade us to a belief of its singularity in Kent which I cannot admit for notwithstanding he hath not found any Lands in any other place to pass under that denomination because saith he the Land in any deeds or conveyances hath not any appellations of Gavelkind yet I say use and custome hath still inviolably retained it and the manner of its partition is in several places known under the very Title of Gavelkind There are names of places that are compounded of the word in controversie only to be found among the Welsh the antient Proprietors of this Land from whose Language I shall make it my design to derive its Origine and shall begin with this part first because very much of certainty in antiquity is to be drawn from the retained names of place which if seriously remarked will afford us a great light to History There is a Village or Parish in Monmuthshire that adjoyns to the Territory of Urchinfield in the County of Hereford called to this day Llangattok feibon afel which if any one attempts to read to a Welshman let him be sure to pronounce the single f like a V consonant and then to be read by this power Chlangattok vybon avel but the common denomination thereof without the variation proper to the Welsh Tongue is Llangattok gafael meibon Llan or as it is rendred by our English writers to express the idiomatism of the British Lhan and Chlan signifies a Religious dedication or locus sacer and Doctor Davies in his Cambro-british Dictionary upon the same word saith that vulgò sumitur pro fano templo sed potius existimo he addeth significare coemeterium vel aream Templi Let it be either Church or Church-yard it doth intimate a Religious dedication and notwithstanding there are at this day many places that have the praefix of Llan unto them where no Church is to be found yet if searched into and traced to their foundation will discover some such appropriation and intendment So I find in the forem ntioned Region of Urchenfield a certain Parish called Hen-Ilan commonly Hentland which in the English Tongue signifies the Old-Church and in certain Paâ—â—ures belonging to a Farm in that Parish there is a place which to this day is called Llanfrawtwr which is as much as to say The Church or Convent of the Brethren the Site whereof was upon a small hill not half a mile distant
from Henland The ruines of which place with its old Foundations are yet to be seen and was a place dedicated to Holy use for there it was that the great College for one Thousand students was founded by St Dubricius the Prince of this Region to repell the Progress of the Pelagian Haeresie who succeeded his Grandfather Pibanus King of Ergin the old name of Urchenfield and in the dayes of King Arthur was made Archbishop of Caerleon But I am gone too farr my intentional digression was onely to shew that Llan was not solely appropriated to Churches but antiently to any place intended for a Pious use and exercise But to proceed to the other part of the word which is very facile and is the name of the Saint to which this Church was dedicated and so the signification in the denomination inferrs no more than Ecclesia Sancti Cadoci which strange Saints name may cause some to wonder as not finding it in their Calenders but they must understand that the Brytains had amongst themselves a great number of Saints who were not canonized by the Authority of the Pope but by themselves and this by a long continued Custome which privilege was so familiar among them that by that Authority and Custome almost every Bishop made his Predecessor a Saint but these denominations of dedication compounded with some remarkable distinction do frequently occurr among the Welsh as Llanihangle-Arrow Llanihangle-Eskle which are so called by them unto this day and by them when they speak English as well as by the English themselves thereabouts inhabiting are called Michael-Church-Arrow and Michael-Church-Eskle from the two Rivers upon which they are situated and afford the true interpretation of their names their suffixes being as I said to difference them from others of the same Title in the beginning in like manner is it with this Llangattok who for difference sake from several others of the same dedication in that Countrey is called Gavell-Meibon or Feibon-afel but not as it is most corruptly in several Maps of that Countrey written so that the Welsh could as little be able to retrive the mistaken writing of that word as the English could understand the Orthography thereof It being Printed Llangattok-vinonavel in most of the Mapps of the Countrey and lyes not far from Herefordshire But the British Norma loquendi gives these several sounds as by the familiar transmigration of M into F which last must be sounded like an V consonant in the English or like a Beta or Vita in the Greek and such is their manner that they make these changes whensoever it happens that certain Consonants end the fore-going words as Mab filius a Son transmigrates into Fab Meibon filti Sons into Feibon so also upon such accidents by vertue of their idiomatism they leave out the Letter G as it hath falln out in these two words But what am I run into I am got out of History into Grammar I shall only to put it out of doubt inform you that Feibon afael is the one and the same with gafael meibon which together with its dedication Llangattok-feibonafael signifies Ecclesia Sancti Cadoci de tenura puerorum the Tenure of the Children It will fall out conveniently now to speak to what Mr. S. faith of the Welsh concerning the word that in their Vocabulary or Dictionary it is sought in vain The word Gafael or as by our English pronunciation it receives force and power in the imitation of sounds is Gavel commeth from the British verb Gafaelu which as Doctor Davies in his Dictionary renders it is Tenere Praehendere and in the most ordinary discourse the Welsh to this day have the use of the word expressing themselves thus or in the like manner * Judge Dodaridge in his Treatise of the Nobility saith page 53. oâ—t of Tho. Thomas Aquinas setteth down a more certain Rule saith he in vocibus viden dum non tam à quo quam ad quâ—d sumitur and words should be taken sensu currenti for Use and Custome is the best Exposition of Laws and words quem penes arbitrium et â—â—s norma loquendi where propriety and true sound in words meet this Rule or discourse cannot reach for nomina-sunt omina Cymmeroch chwi gafel which is in English to say Take hold I have wrote it in that manner for the easier reading of it upon the force of the Letters but it should have been thus written Cymeroch the chwi gafael In the same sort they retain the antient denomination of an Officer which they call gafael-swyddog and was an Officer for Arrest being derived from this Gafael which is no more than the Officer his holding or laying hold of a person Swyddog is an Officer but most commonly it is taken for a Magistrate as in the Laws of Howel dda Lastly Forceps a pair of fire-tongs is nominated in the Welsh Gefael derived still from the verb Gafaelu to hold and is a denomination from the use alwayes provided as before I have said you rem mber the pronuntiation of the single F. But to pass by this which proves the word sufficiently in use and knowledge among the Welsh and to be found in the Welsh Vocabulary I come now to an objection which may be made concerning the denomination of this Parish which some may fancy to have been a late Act and that the additional cognomen of it might be caused by and be the proceed of some special remark of this Tenure To which I reply passing by what before seems most probable that all Lands among the Brytains were partible yet there may be somewhat in the distinguishing name of this Village for when most of this Country was wrested from the Welsh by the Normans for till then the Welsh did enjoy it this Village by the favour of the possessing Conqueror may probably retain this Custome and accordingly have its appellation for we must understand that King VVilliam the first not being able to satisfie the expectations of all his Assistants with the forfeited Lands of the English gave leave to several persons to get what they could of the VVelsh and it was not till his Sons dayes VVilliam the second that Glamorgan-shire was attempted these persons having at that time liberty of constituting Regalities and jurisdictions as I have seen by a Charter to Brechnoc from Bernard Newmarch or de Novomercatu and as Cheshire so was Gladmorganshire erected into a Palatinate But there is no reason to believe the additional name of this village was of so novel an imposition as to carry no greater antiquity than the Norman Conquest for in case it were so it was not probable the Brytains would give an appellation to it by a name whereof they knew not the meaning and crowd this Saxon word as Mr. S. would have it in the midst of Welsh so that it carries argument along with it that the word is rather of a Welsh parentage and that there is no other conceit in
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
perquisitum legare cuicunque voluerit tenementum c. Tenementum illud leg atum fuit pred Glodithe Unde dicunt quod Breve istud non currit infra Hundred pred To this Jurati dicunt super Sacram. suum quod predicta Tenementa sunt legabilia quod predict Philippus Tenementa illa legavit predicte Glodithe quod Breve istud non currit infra Hundred predict Ideo Glodithe concessum est inde sine die They have a formal way of Judgment of their own much after the British fashion The Steward with his Officers belonging to the Court being seated there be certain Chiefs among them whose Houses and Lands are held of the Lord by Sute and Doome in the Court of that liberty and hereupon are called Doomes-men that is to say men of Judgment or such who judge of matters in Controversie Rot. quo War ibidem Therefore in the Quo warranto roll of Irchenfield in the 20 Edward 1. it is Recorded that Jurati Hund. de Irchenefeud Webbetre Greytr dicunt quod Botholin qui tenuit villam de Comboglin solebat facere Sectam ad Hundr predict esse unus Domesman de eodem Hundr c. and in other Collections of Antiquity that I have transcribed there is one Record that is Intituled de libertate de Domesman But because my intentions are to be more large upon this Theme in a Tract more proper I shall wave it at this present only among other duties reckoned up in Domesdey this is one that I had almost forgot to carry the Kings Messages into Wales and to Pray for him in three Churches every week and in another Record which is instar omnium and by it they as it were were left to their own Liberty and are said to be extra Comitatum not bound up to any strictness by the Countrey Laws Which how farr transcending the Kentish privileges I leave to any to judge Now if Dower of the Moiety and not to forfeit Lands for Felony be the greatest privileges Kent hath by the Tenure of Gavelkind then are the privileges of other places where the use of Gavelkind is not at this present far greater as in some special privileged Hundreds and Precincts c. in the discourse of which it will be besides the matter in hand to engage I proceed to the discourse of CHAP. IX Several sorts of Gavel not relating to the Tenure answered as urged by Mr. S. How that Gavel was understood by our late Lawyers How in Domesdey by comparing places together and how among the Saxons a Discourse upon the Writ called Gavelet MR. S. In his tenth page writes that the word Gavel as to the main part of it frequently occurrs in the old Records of some Mannours out of Kent sometimes simply but for the most part in composition for example in Gavel-erth Gavelate Gavellond c. I make not a Citation of these words as if I intended to put a force upon them as some at the first reading may imagine because Mr. S. averrs that the word Gavel doth occurr in some old Records of Mannours out of Kent which I take not as there mentioned in composition to have any relation to the Tenure of Partition for that which is applied in those compositions for several uses as in For-gavel Mete-gavel Gavel-rip Swine-gavel Werk-gavel Hunig-gavel c. is little to our purpose Several such I have met withall and divers different from what Mr. S. hath reckoned I have encountred with a Pride-gavel which in the Lordship of Redely in the County of Gloucester is used and paid unto this day as a Rent to the Lord of the Mannour by certain Tenants in duty and acknowledgment to him for their Liberty and Privilege of Fishing in the River Severn for Lamprayes and in the same Lordship is also another called Sand-gavel which is nothing else but a Payment due to the Lord for liberty granted to the Tenents to Digg up Sand for their uses Many such the Reader might be furnished withall did I conceive they would redound in any measure to our discourse for my judgment is that this Gavel in these Compositions and Gavel in the Tenure are very different in their acceptations as I shall shew anon But to examine Mr. S's Collections and Observations concerning these compounded Gavels where in his Paragraph of Oate-gavel in pag. 21. he declares this was a certain proportion of Rent-oates served into the Lord sometimes in Kind and other while by composition redeemed with Money and out of South-Malling Custumal urgeth this quod omnes operarii debent reddere annuatim quod dicitur Gavel-otte in xl m2 i. e. in Quadragesima and in another accompt roll of the same mannor it is said concerning a certain Tenant that respondet de Octo quarteriis c. receptis de Gabulo Custumariorum c. and again de Avena de Gablo vendita iiis. and xs. vid. de quinque quarteriis c. de Gavel-ote de redditu venditis This charge of ten shillings six pence upon five quarters c. sold de Gavel-ote de redditu I guess it to be nothing else but an Imposition an Excise or an Assess which is the proper signification of the word Gablum or Gabulum and so to be understood as the Excise or Assess upon the Corn sold by the Tenants when for Rent they should have paid Oats in kind Which receives a little explanation by the precedent accompt where it is said that respondet de octo quarteriis c. receptis de Gabulo Custumariorum and again iiis. de Gablo de Avena vendita the Excise or Assess upon the Customary Tenants for viii quarters sold and the iiis. to be understood in the like manner that is an Imposition or Excise for Oats sold Certainly Gablum or Gabulum is not a word so much out of use that we had need to grope or were forced to search after it as it were in the Dark for even in these our days with ease we may produce the use of it bearing the same Signification as I have now given to it to the same purpose and sense do I find it us'd in that prodigious insurrection at Naples within these few years under Massaniello a Fisher-man where the Story translated in this point I may say Literatim gives the ground of it to be a certain Payment or Excise upon Fish which the Italians call Gabelli and we have transmitted unto us in the Translation Gabells known in Spain by the term * Martinus Zeillerus in his â—inerarium Hispaniae out of Mariana lib. 16. cap. 9. and lib. 17 cap. 8. Et Hugo Linschoten saith Anno 1341. Introductum est vecâ—igal Hâ—sâ—ans i. e. Alcavala Italis Gabella dictum quod aliquoties postea auctum suit Ejus vi coguntur subditi decimas pendere quotiescuâ—que merces bona praedia aedes agei venâ—untur Eidem obnorii sunt cujuscunque generis opâ—â—ices ut sutores sartores lanii quicuaqâ—e
officinas aâ—â—â—as habent Vinum quoque sive uvae colligaâ—tur sive ipsum in Râ—gâ—o divendatur sive in exteras regiones navibus deseratur c. pag. 78. Alcabala or Alcavala which as Minshew doth expound it is Datio Redditus Census Tributum Vectigal Portorium and in English is rendred an Impost Custom Tax Toll or Tribute and from our use of it is called Gabell Gabella Gablum He addeth that it comes of the French word Gabelle that is Vecligal and hath the same Signification among our Old Writers as Gabelle hath in the French and then concludes Gabella as Cassan defineth it de consuet Burg. f. 119. est vectigal quod solvitur pro bonis Mobilibus id est pro iis quae vehunâ—ur distinguishing it from Tributum for this reason quia Tributum est propriè quod fisco vel Principi solvatur pro rebus immobilibus and is the fame which Mr. S. pag. 23. upon Swine-gavel doth cite Et de viis. xd. de tribus porcis de gablo venditis in which place this de Gablo signifies for Gables or upon the accompt of that Imposition and certainly may without any force upon the word be rendred at large as Mr. S. hath done it A Rent for Rent in Latin is Redditus which is a Payment made or given for any thing whatever and Sir Edward Coke upon Littleton writing of Rents saith L. 2. c. 12. s 213. That bysome Redditus dicitur à redeundo quia retro it quotannis reddit c. for reddendo inde or reservando inde or the like is as much to say as that the Tenant or Lessee shall pay so much out of the profit of the Lands for reddere nihil aliud est quam acceptum aut aliquam partem ejusdem restituere seu reddere est quasi retro dare and hereof commeth redditus for a Rent and adds this to it Here note saith he for the better understanding of antient Records Statutes Charters c. that Gabell or Gavel Gablum Gabellum Gabellettum Galbellettum and Gavillettum do signifie a Rent Custom Duty or Service yielded or done to the King or any other Lord and then cites Domesdey book which he hath thus Wallingford continet Cclxxvi Hagas i. e. domos reddentes IX liberas de gablo i. e. de redditu The which I my self Transcribing out of the Original book find it to be thus In Burgo de Wallingeford habuit Rex Edw. Viii. virgat terre in his erant 276. Hage reddentes XI lib. de Gablo so that Liberas should be corrected and read Libras The other difference betwixt the two Citations is only Sir Edward Coke his Comment or Construction of it XI Lib. de Gablo qui ibi manebant faciebant servitium Regis cum equis vel per aquam usque ad Blidberiam Reddinges Sudtone Besentone hoc facientibus dabat prepositus conredium mercedem non de Censu Regis sed de suo Ex Domesd In Berrochescire but this it seems he takes for granted that Gablum hath no other signification than Rent for by the same Record to be sure that that Rent of xil. not ixl. should come into the King's Coffers there is a Paragraph that provides for it where it is written what and how the Souldiers that the Burrow shall find upon all occasions for the King shall be provided for and is thus ordered Conredium Mercedem non de censu Regis sed de suo all the Cens or Rent that the King had that I could find is that Gablum of eleven Pounds and this Gablum was not always paid in Money For in Sudsexe under the Title of the Lands of William de Warene in the same Record is this that Radulfus tenet de Willielmo that is of William of Warren Bristelmestune Brictric tenuit de dono Godwini Comitis T. R. E. in Dominio c. De Gablo IV. milia Alletium and under the same Title it is there remembred Pluntune Hugo filius Ranulsi tenet de Willielmo c. ibi c. Silva de XX. porc De gablo XVII porc But that Gablum did as well relate to Money as to other things in kind either Herrings or Swine is very plain by that Record in Domesdey book in Windesore in Berkshire where it is said Rex Willielmus tenet Windesores in Dominio Rex Edw. tenuit ibi XX hide c. adhuc sunt in villa C. Hage V. minus ex his sunt XXVI quiete de Gablo de aliis exeunt XXX solid And lastly out of the same Book I still write in Sommersetshire it is thus expressed under the Title of Terra Regis which I desire the Reader to observe Rex tenet Cedre I suppose it is that Chedder so famous for its Cheese Rex Edw. tenuit nunquam Geldavit nec scitur quot hide sunt ibi c. in Dominio c. XX. Bord. cum XVII car VII Gablatores redd XVII s. These seven Gablatores did pay for Rent 17 Shillings and from their paying of Rent were termed Gablatores To me it seems probable that this Gablum is to be distinguished from a Rent or Payment made upon Contract or Bargain and have Relation to such an one as was imposed by the Power and Will of the Lord and these different sorts of Payments are passed in Domesdey book under several expressions according to the nature of them where sometimes it is written that one reddit to such an one so much without any other addition and this I believe is Rent upon Agreement and Contract Another reddit de Consuetudine so much and a third red it de Gablo so much and if the Oate-gavel and the Werke-gavel be taken into this Observation with all the rest by Mr. S. mentioned they will prove to be of the Off-spring of Gablum and should have rather been writ with a B. than a V Consonant which Transmigration is so familiar in our Europaean Languages that nothing more frequently occurrs and not only among these but also in most of the Oriental Languages where the Beth or B Masculine doth pass after the same effeminate manner into V. especially where in the Hebrew and Chaldaick there is to be found the difference by the interposition of the Dagesch or Prick in the Letter without which it is sounded as an Aspirate and so likewise is the F. familiarly turned again into V Consonant as it falls out in most Languages especially in the British But to return to this word Gavel which if it shall receive a common acceptation and that according to what Mr. S. hath rendred it which he labours to make out to be the chief Acme of his design and all is to have it signifie a Rent or Imposition in which we are agreed but then in this we differ and dissent that there ought not to be allowed to it any relation to the Tenure of Partition which is my opinion and which Mr. S. will hardly
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
even as well if it were formerly gavelkind-Gavelkind-land by their grant receive an extinction of its Tenure for that in such cases where it is I say so vested it is wholy depending upon the force of the contract betwixt the persons concerned and again this same specifical Land may so fall out as to be made the very site of the house and the gardens of this religious Society or body and how in such a case it will be capable of partition except as I before have spoken in the members their participation of an equal benefit I know not The progress exhibits CHAP. XI Some offers at the termination Kind affixed in Composition to the word Gavel MR. S. in his 37th page saith that Gavelkynd is a word compounded of Gavel and Kynd the latter Syllable whereof commeth and is contracted of the Saxon word gecynde which by several good Authors is rendred Nature Mr. S. in his 10th page saith that Gavel is the main part of the word Which if so then I hope I have dispatched the main part of my work and could willingly joyn with Mr. S. in his Exposition of the latter part for in what I shall declare my self in this Chapter shall be only Scepticism But I am confident of my opinion in the first and main part and here I must take notice of and give to Mr. S. his due honour for his ingenuous Ratiocination upon the common received Interpretation of Mr. Lambard and all those that follow him concerning the latter part of it which he would have to signifie Kindred and that the whole word together is of a Saxon Original and is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is give to all the Kindred which flatly opposeth the very nature of the Tenure because where such Lands are that are subject to this partible quality the Kindred do not share nor are they partible at all among them but in the common case of the failer of Issue then the next of Kindred in the nearest Line And in this pretended interpretation the word Kyn supposed to be Kindred doth seem to nullifie by it the known use of the Tenure for if the Kindred be to part those Lands then must it so fall out that either the Children part them with the Kindred or the Kindred without the Children for if the Title by this Denomination be in the Kindred it must be one of the two and upon serious consideration I would think that it deserves a Censure for any to affirm that Children are of Kyn to the Father for that Kyndred or Kin betokens a more distantial relation than a Son is to the Father which should it take place in that Notion would carry with it the confusion of Alliances In Latin Kindred is called Cognatio quia Cognati quasi una communiter nati vel orti ab eodem progenitore These Cognati or Kindred that are so distanced may be said to be Sanguine conjuncti and Consanguinei be cause they proceed from one Progenitor yet are well known not to participate of the same privileges with the Children For the Children of one Brother do not divide or part Lands with the Children of another Brother by this our Tenure but if the Land should thus pass then by what Right or Title can the Children expect any part of it for that according to this interpretation it should pass to the Kindred and so as I said before being eminently implanted in them it doth plainly seem to Debarr the Children and Vacate the common use of Partition among the Sons which is the more plainly Evicted by this in that Daughters in case it be insisted upon in relation to Kindred are as much of Kindred to the Father as the Sons are and yet in this Tenure of Partition the Daughters have commonly no share when there be Sons existing Mr. Verstegan who would willingly observing some inconveniences in the Latitude of Mr. Lambards exposition restrain it would make Kynd to signifie Sons or rather Children which if in the last then I say that Daughters as well as Sons at the same time are very rarely participants in the Partition of Lands together except in those cases I formerly shew'd Doctor Powel in his Additaments to the Cambrian History which I cited fully before saith Here I think fit to say somewhat of the Custom and Tenure of Wales c. that is the Division of the Father's Inheritance among all the Sons commonly called Gavel-kynd the Doctor writes Gavel in great and large Characters and Kynd in small as being Dubious of the Connaturality of them Gavel he affirms to be British but not knowing what to make of Kind passeth it over in silence I shall be farr from Peremptoriness in my own sentence concerning it One while I thought it might have been derived from the British word Tennedl which signifies generatio aut familia as in that commonly used word Pen-cennedl which is received and expounded to signifie Princeps Generationis aut familias the chief of a Kindred or Blood who among the Welsh are reverenced and observed as I told you the Lords or Chiefs of Clans were in the High-lands of Scotland and so Gavel-kennedl might signifie Tenura familias aut Generationis Which that I may bring it a little nearer to the ringing of the pronunciation is by some reported to have been sounded Tennedh which with great case in the composition may retreat into Gavel-kynd and is of the same use in that signification Somewhat of that manner was antiently observed among the Britains though it seems to be lost for Morgan was a name of great use among them heretofore as it is at this day which signifies Got of the Sea Mergan signifies got of the Sea as some Criticks in that Language do report and was thought to be the proper name of that Arch Heretick who in imitation of this his name was by the Greeks called Pelagius which termination GAN in the Welsh name I mean is the fruit of Genned from whence with a soft mutation may come the latter part of our word enquired after viz. Kynd The other imagination was this That the Saxons upon their first Co-habitation with the Britains did borrow many of their words by which they expressed the Denominations of places and things I have already shewed several of them in this Tract and could produce so many as that by themselves they would fill a Volume and not only is there to be found this intermixtion with the Saxon tongue but also much of the reliques thereof in the very French being the remainders of the antient Gallick which at this day is the most entirely kept by the Brytains of North-wales for all things that related to Nobility to Propriety to terms of Law to Customs to Offices c. are in British carried through many ages from the Brytains by the Saxons down to us The Saxons call some rents Mailes the same word the Scots use to this day Pag. 34. and is as Mr. S.
equal Portions but according to Right to this I answer I have shewed before several sorts of partible Tenures and none of them opposite in Condition or Nature but that they may all come under the Genus of Gavel-kynd and all those Partitions although not by equal Portions yet are all according to the right of Gavel-kynd which I think is sufficient to make them appear Members of this Tenure But let us examine under what consideration the Saxon Kings had this Tenure as it was diffusive over England in their Laws And first of all those Laws of King Canutus wherewith Mr. S. is so ill satisfied He after he had very piously taken care for what concerned the Worship of God by the counsel and advice of the Wise-men of his Kingdome on ðaem Halgaâ— midÆ¿intres tid on Æ¿intanceastre in the holy Mid-winter-tide at Winchester which Mr. Lambard expounds to be Christmas enacted several Laws with this Proaemium before them Ãis is ðonne seo Æ¿orldcunde gerednes ðeic Æ¿ille mid minan Æ¿itenan raede ê§ man Heald ofer eal Englaland that is This is then the worldly behest that by the counsel of my Wise men that men hold over all England by which we may perceive his Laws had an Universal extent over the whole Kingdome and them we find to be Built upon the Basis of Partition So in his 68th Law which is thus rendred Sive quis incuria sive morte repentina fuerit intestatò mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur Hereoti nomine sibi assumito verum eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito which in the Original is Ac beo be His diHte seo aeHte gescyft sÆ¿iþe siHte þife cildan neh magon aelcum be ðaer maeþe de Him togebyrige which is as I conceive thus And by his judgment let the Estate be shifted or rather divided according to right Wife and Children and next of Kinn to each one according to that proportion that belongeth to them this Shifting if the word signifies so or Division must be according to Right Where by the way note that the Saxon word to them known was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that they made no use of the word Gavel-kynd But this was a general Law and as I said before several places had their several manners and proportions of this Tenure of Partition yet all those Custom were to be parted and descend according to Right We find somewhat to the same purpose in the 70th Law of King Canutus Porrò autem quam maritus sine lite controversia sedem incoluerit eam conjux proles sine controversia possidento Sin quae in illum lis fuerit illata viventem eam heredes ad se perinde atque is vivus accipiunto and in the 75th Law it is provided that if any in the Army before or in the presence of his Lord Dye fighting 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let his Heriot be forgiven and let his Heirs succeed him in his Goods and his paternal Lands and let it be Shifted or Divided according to Right Which Law seems to be word for word found among the Laws of Edward the Confessour where I find qui in bello ante Dominum suum ceciderit sit hoc interra sit alibi sint ei relevationes condonatae habeant haeredes ejus pecuniam terram ejus sine aliqua diminutione rectè dividant inter se Which Laws did also take place among those that William the Conquerour confirm'd as in the 36th Law that passeth under his name Si quis intestatus obierit liberi ejus haereditatem aequaliter dividant Now the collection from hence lyes naturally thus that that Law which generally reacheth to the behoof of his Children or the Descendants of such as Dye Intestate is the most genuine Law for this Law provides that upon some emergent accidents as dying Intestate or in Battel or some such suddain Chance that these notwithstanding the Land shall run in its proper Chanel of Partition so that these occasions should not attain the power of altering the course thereof which not meeting with such an Obstruction would have without any scruple had its natural course of Partition The like was not only in the Knight-service-land spoken of to be in King Alfred's time but also in all their Bocland and other Lands that had the force put upon them by Testaments or Deeds This partition came yet a little nearer to us for in the 70th Law of Hen. 1. upon the account of Partition or Dividing Provision is made that Si mulier absque liberis moriatur parentes ejus cum marito suo partem suam dividant by which I understand a Division of parts upon a part before received And he that wrote the Glossary to the Saxon Laws upon the word Terra ex scripto saith Haereditatem vero temporibus illis non quemadmodum apud nos solus aetate Maximus adibat verum ad filios omnes aequaliter fundus lege veniebat quod illi viz. Saxones Lande fcyftan dixerunt Cantii hac nostra memoria eodem vocabulo to shift Land id est herciscere fundum partiri appellant By which it seems the proper Kentish word is Shifting-land as by this Glossators judgment who I understand is a Kentishman which if so let them be content with their Saxon Land-shifting and let us alone with our Gavel unless they will be pleased to own their true * The Britons Patrons The Laws I confess that I have lately cited do rather glance upon the Custom of Partition because it is supposed and taken for granted that that Custom was so Paramount that there was little need of expressing thereof which lies so Couched there as it doth amongst the Welsh Laws And are like our common Laws known to all yet not expressed generally received yet not written In the 78th page of Mr. S. we are still upon the Tenure in question is cited Davies his Reports of the Irish custom de Gavel-kind which Book I have seen and to it I say if the Irish know the word by which Davies denominates the Custom among them it further confirms me in my opinion of the British Etymology thereof * Seld. Mare Claus lib. 2. cap. 1. Scotland and Ireland were antiently reputed Britain Hiberma 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicta est Ptolomaeo Mahumedes Acharranides Arabs Mathematicus egregius qui ante annos 900. floruit Terrae latitudinem inquit observantes à loco lineae aequalitatis Aequinoctialis versus Septentrionalem partem insula Tile quae est in Britannia ubi est majoris diei longitudo 20. herarum eam determinari deprehenderunt Eriam alii Thulen pro ipsa Britannia usurpacunt seu Anglia Albategnius de Oceano quà ab Hispanis respicitur verba faciens In co inquit à Septentrionali parte sunt
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
properly called villein-services have been as they still are intermitted or rather quite ceased insomuch as all our Gavel-kynd-land in point of service now differs nothing from free Socage being such ubi fit servitium in denariis That there were changes out of Villenage Tenures into others more free and less servile is frequently to be found but by that to lay any force upon the in erpretation or Etymologye of the word or that upon the account of those citations brought in by Mr. S. it should signifie Genus gabli aut redditus because there was a tent fixed upon the change I cannot yield unto it To what he observes in his 59th page out of the Customal of Eastry Mannour in Kent of the changing Octo Cotarii pro Gavel-kende since that Gavel-kind in Kent is received as a Tenure far less servile than their ordinary Villenage this change I say was very considerable and did well deserve a sum of money in Gersum to the Lord for that these Cotarii before this change being by Tenure Villeins and so consequently their Lands not descendable to their Children their persons not scarce their own their acquisitions got by the sweat of their brows at the will of the Lord by this change these cotarii being invested into a propriety of this Land and this Land made to descend as in Gavelkind the mutation was very advantagious to the occupant But yet there appears somewhat further to me to confirm my affirmation and 't is thus to be considered Mutati sunt octo Cotarii Pro Gave-kende Medleferme tenet unum messuagium tres acras quae solent esse cotar modo reddit XL. den de Gablo These Cotarii had their Lands changed into Gavel-kend Medleferm tenet unum messuagium que solent esse Cotarii modo reddit XL. den de Gablo They are changed into the Tenure of Gavelkind and pay rent XL. den de Gablo this last notwithstanding the propinquity of sound cannot have any relation to Gavel-kende for then it had been a Tautologie but Gavel-kind and Gablum are set forth into different and distinct uses The Tenure was changed into Gavel-kind with the reservation of an annual Rent of XL. den de Gablo that is to say upon the account of that imposition made at the agreement by way of acknowledgement for creating this Land Gavel-kind-land The last hath relation to the rent reserved and the acknowledgement the other to the manner of holding in relation to the change and to the future descent So likewise is that other citation out of the Archbishops accompt-roll in the year 1230. where it is thus entred dâ— XIIIs. IVd. de fine Cotariorum ut Coteriae suae ponerentur adredditum that is to say that their Cotages may be fixed and certain in relation to their Gables or Reat for which they paid a fine whereas the first citation had relation both to Tenure and Rent I shall now take my progress northward and inform you that there is also as the remainder of the antient planters CHAP. XVII Gavel-kind in Scotland when the English tongue and the Customes were first planted in Scotland MR. S. in his 53d. page reports That the Tenure of Gavel-kynd in other Countreys besides Kent is a custome indeed but yet like to that in Scottish Socage Land to which he produceth as a Test. Skenaeus I find by Mr. S. that Gavel-kind shall be permitted in other Countreys to be like unto that in Wales like that in Ireland like to Scottish Socage-land rather than like to it self or to the same * Yet Mr. John Skene saith in his Chapter de linea recta descendentium thus Gif ony man deceasis leavis behind him maa Sons nor ane either he is Succomaanus haldis not his Lands be service of Ward and then his Heretage is divided amangst all his Sonns or he is miles la the quhilk case the eldest Sonne succeedis in the haâ— Lands quhilk heretably perteined to his father c. What the manner of the Scottish-Socageland is or hath been antiently in Scotland I am not certain but of this I am assured that there are sevcral Maâ—nours heretofore belonging to certain Bishops of Scotland where there is the same usage of partition of Lands as in Gavel-kind which shews that those Lands belonging in those antient times to the Church did not feel the severity of the War but enjoyed this Custome and Tenure from their most antient proprietors Which is also plainly to be perceived by the retention of this Tenure yet in force amongst the antient Britains of the Isles who by reason of their site were most free from the fury of the War I call them Brytains though now they are called High-landers because upon tryal of words and denominations of places I find that Language and the British so cohaerent as that there is not much difference between them to a serious observer as I have before treated consideration being had to such words as have suffered by the Saxon converse For this Island at its first plantation did certainly upon the increase of families who first setled in the Easternmost parts thereof remove their increase Westward and Northward till such time as by this means both Cornwall and the Orcades were also planted and then the Saxons in process of time inforced the Brytains to leave these their antient Seats in the Eastern parts of the Isle yet not all as I shewed before who retired by their force either into Cornwall Wales the Scottish Highlands or Base Britainy in France where they in their off-spring do occupye these places with Ireland also unto this day There lyes a large Island named Lewis belonging to the Earl of Seaforth between the Hebrides and the Orcadâ—s which wholy holds by this Tenure of partition by what name there called I could not understand for their Language there is Irish-British but if according to Mr. S. the name were Saxon in its original what hinders but that all Countreys where the Saxon Language is in use should have the knowledge of the word and upon this ground it is that I may with moroprobability è contra inferr that because it is not so universally known in those places where the Saxon tongue is spoken it administers more reason to believe and conceive it should have another origine than to be so easily lost among the very users of the Language and in no such place to be found as Mr. S. would have us believe but within the Septs of Kent The time of planting the Saxon Customes in Scotland is difficult to be known but if the planting the Language argues any probability of the planting of Customes then we had best make the time of the planting the Saxon tongue the matter of our enquiry thence being able probably to deduce that at that time the Customes were received for it was far otherwise in the Saxon settlement in Scotland than in England For here they planted and setled with the
Brytains there they drove out the Picts totally and seated themselves in their places upon which account it was that they not having any persons with whom they might co-inhabit and so participate of their Customes were upon their settlement constrained to create new Customes or else to revive their own for their best security I think them much in an errour who affirm that the Identity of Language betwixt us and Scotland was occasioned from the multitude of the Profugi or such as for the security of their persons fled under the protection of Malcolm Canmoir King of Scotland in the time of William the Conqueror certainly considering the old animosities betwixt the two Nations it would have ill become the curtesie at least the policy of the Scotcâ— King to have received so many English guests a by their number or multitude might have been able to plant their Language among his people so different from their own I must confess that notwithstanding this national enmity some he did receive out of whom he chose his wife Margaret Sister to Edgar Etheling and bestowed Lands upon divers of them A Catalogue of several of them the Bishop of Rosse hath given to us by their Surnames of whom he reckons the families of Calder Lokert Gordon Seaton Lauder Waun Meldron Shaw Lermount Libertoun Straquhin Rettraye Dundas Cockeburne Myrtom Inglis Leslye Cargill Cuilra Mar Menzeis Abercrumy Lindsay Vaus Ramsay Loval Torris Preston Sandelandis Bissat Foullis Wardlou Maxuell c. These are the most and principallest in that account from whom it cannot be rationally expected that that Kingdome should receive a mutation of their * Mr. Sâ—ene under the Title of Scotia saith That King David 〈◊〉 first in the third zier of his Reight Ann Dom. 1126. Be his Charter maid Omnibus Scottis Anglis tam in Scotia quam in Lodoneio constitutis gave to St. Cuthbert and his Moâ—ks in Durhâ—m the Laods of Coldingham c. Language and therefore I shall fix it upon a greater-probability Speed saith that Hengist sent for Octa and Ebissa two principal Captains among the Saxons in Germany who being embarked in forty Pinaces sailed about the Picts Coasts wasting the Isles of Orcades and got many Countreys beyond the Trith Yet this was not a settlement for that it is not probable they fixed here at this time again they had much War with the Saxons when the Kingdome of Northumberland was planted in their neighbourhood which may possibly afford some small Knowledge of the Language one to the other but not enough to confine the Scottish tongue within the Mountains and Highlands of Scotland What I find in the Scottish History written by John Lesley Bishop of Rosse a person of great repute being Embassadour for Mary Queen of Scots in the Court of Queen Elizabeth in England whose book was Printed at Rome in the year of our Lord 1578. is that out of which I shall collect this ensuing Discourse Kenneth the 69th King of Scots who flourished about the year of Christ 840. defeated the Picts near Storling and improving his Victory into Northumberland prosecuted them with Fire and Sword so closely that you shall have it in his own words omnes incolas promiscuè nulla sexus habita ratione obtruncat Picticum nomen propè extinxit Qui autem evasere in Daniam Norvegiamvè alii in Northumbriam se abdiderant and presently after concludes Sic Pictorum Gens post Centesimum supra Millesimum ex quo in Albionem venerat annum tantum non deleta est here we find the Pictish Nation in Scotland almost expired who had very long before this been intruders into this part of the Island and during this Kings life those Lands upon which they had lived were re-occupied by the old Irish or Brittish inhabitants of the Hills who were constrained to live in those mountains and fastnesses during the time the Picts kept possession of the Low-lands and at that time the Scots changed the names of those Regions given unto them by the Picts and their Princes into other different appellations But Kenneth dying in the twentieth year of his Reign and in the 855. year of Christ to him succeeded Donald the fifth who is said to be Germanus Kennethi for Buchanan observes that the Custome of Scotland then was If the Sons of the deceased King were * Minoris aetatis under age they elected the most aged and greatest experienced of that Kings line to be their Prince so that this Donald was chosen into the Marble-Chair which Kenneth his Predecesser had brought from Argile and placed in Scone the same that at this present remaineth as a Relique and a Trophy in the Abbey of Westminster Donald proved very offeminate and vicious and puft up with his felicity so over-flowed with vices that he by them gave the opportunity and occasion of the ruine of that which Kenneth by his valour had atchieved the Picts who all this while lay close in Northumberland understanding his carelessness and loosness istam suae libertatis asserendae occasionem arripientes saith the Bishop cum Auxiliaribus Saxonum Britannorum in Scotiam irrumpunt Donaldus collecto exercitu hostibus prope Jedburgum occurrit initoque prelio illos in fugam compulit Rex nostrique milites victoria infolentes â—cctem sequentem sine excubiis supiâ—t sine ordine sparsi sine disciplina negligentes sine timore stulti in luxu compotationibus consumunt Hostis de hac re certioâ— factus ad omnem occasionem intentus illos media nocte somno vinoque sepulâ—os opprimit interfectisque circiter viginti millibus ipsum Donaldum cum nobilibus domum captivum ducit Denaldus ut se in libertatem assererel omnem regionem inter Strivelingum Cludam amnem inte jectam BRITANNIS SAXONIBUS dedidit annuaeque pecuniae tributi nomine pendendae conditione sese astring it Here I observe that this losâ— that Donald received gave opportunity to the Britains and Saxons their planting themselves in the Low-lands the Scots being reforced into the Highlands But concerning the limits and bounds betwixt these and the Scots he gives us a particular account and shews in what parts the one inhabited and in what part the others and informs us that these Angli-Saxones in hujus pugnae memoriam Strivelingi Arcem prius dirutam iterum extruxerunt Fortheam quoque ponte munierunt quopostea in loco crucem tanquam victoriae signum sustulerunt cui ii versus aetatem illam satis redolentes affabrè insculpti sunt Ang los à Stotis separat crux ista remot is Arma hic stant Brutti stant Scoti sub hac cruce tuti Interea Picti qui Scoticae cladis Auctores fuerant tota Albione à Saxonibus praecipites ejiciuntur and to this Buchanan adds that durae conditiones praepositae quas tamen praesens rerum status tolerabiles faciebat vidert ut omni agro qui inter vallum Severi esset Scoti cederent
third Particular said at that time to be much altered and that is our fashions of which I cannot say much and less if I were to speak of our Fashions now a days considering how much we are become the Frenchmens Apes but yet I know not whether a serious observer can find by any probable Record or by the observation of antient Monuments any such Alteration of Fashion as is here affirmed the same manner and form described to be then in use continued many years after if any thing may be Collected from those Habits expressed in the Monumental Effigies of several Persons of those Ages Another Alteration said to have hapned is of our Language concerning which Mr. Daniel hath not without need made a Retractation and saith that the Body of our Language remained in the Saxon yet it came so altered in the habit of the French tongue as now we hardly know it in the antient form it had and not so much as the Character wherein it was Written but was altered to that of the Roman and French now used I know not what Habit he means but this I can affirm that our Language hath in it little of the French from the Norman Conquest but continued as the Normans found it abating only such changes and refinements as Languages receive in the like space of time there being not to be found so much in the English as the very French it self from its self without any such violent Impression as this Conquest may seem to inforce And I would desire of any one that hath observed the Gradual decay of our Primitive English or Saxon what remarkable difference in any thing considerable there is to be found betwixt that of Edward the Confessour's time and that in which Chaucer wrote◠as also how at this day the Saxon Idiom is yet retained among the Commonalty in many Counties of England understand it more especially to have relation to such places that are most Northern and further distant from London a City of great Forein commerce and the usual residence of the English Court for many hundred years for it is plain to me that the present Scotish hath very little receded or altered from the English or Saxon antiently used and by comparing of the Writers of several Centuries together the refining of the English tongue hath not been considerable from Age to Age till within these last Hundred years so that at this instant I cannot perceive into what habit of the French tongue it is altered nevertheless I am not ignorant how that in those first Norman times there wanted not those of the English who by their Adulation and Sycophantizing earnestly laboured to get themselves into some repute of whom that Age took so great notice that in great scorn they reproved and reflected upon them by that common Ironical proverb Jack would be a Gentleman could he but speak French and as for the Characters said to be changed I have seen Charters of Saxon firmed both by William the Conquerour and after his Reign by his Son Henry surnamed Beauclerk all wrote in the Saxon Letter that Character being yet retained in all such Escripts that concern our Laws and is called by the Denomination of Court-hand And again in some very antient Transcripts and Sermons of Saxon written before the Conquest in their own Characters the Latin therein cited did relinquish the Saxon Letters and did espouse the old Roman Characters I urge this the rather to shew that these alterations are not properly to be fixed as an effect of the Norman Conquest and that Writers running much upon Hyperbolical expressions have laid more upon this revolution than it was truly Guilty of To what Mr. Daniel writes that by this Conquest we received new forms of Fights Fortifications Buildings and concludes generally an Innovation in most things but Religion for this last particle that is of so great extent I have said enough already to shew my diffent to his opinion and it being so large in the affirmative I dare not enter into the discourse of it for dolus latet in universalibus and it would take up too much time but to return to these three first particulars now ennumerated I say that probably in them there might be some alteration for I would not be thought so opiniative to believe the English were so tenacious of their own Forms and Modes as not to relinquish them for better they took up afterwards new forms of Fight and came not short of the Normans either in Valour or Renown in the use thereof but to the difference betwixt the forms used by the Normans and Saxons I leave the Reader to the Description of that most remarkable Battel betwixt William the Conquerour and Earl Harold as it is set down by many Historians by which it will appear that there was much difference in the Management and Use of Offensitive Arms But the English presently by their industry in the practique part of Arms came to be not only famous but also terrible to their Neighbours by their Dexterity and Valour Neither will I dispute their Fortifications yet the Romans left the Brytains excellent Notions thereof which afterwards came into the possession of the English and were not at all short of any the Normans could pretend to be Authors of considering the Discipline and Arms of antient times yet true it is that the English at this time were by case and softness almost reduced to that Effeminateness notwithstanding their Danish turmoils that like as the Britains made use of them and their Ancestors against the Picts so now these Saxons make use of the Normans against the Britains for the preservation of their Welsh Borders of whom a considerable party lay in Garrison in Hereford and were after William the Conquerour had been here above a year hard put to it under the Government of Scrâp as he is named in Domesdey by Edricus Silvaticus or Salvage Lord of Wigmore who at last was taken by Radulfe de Mortuomari his Lands being by the King for this great Service bestowed upon the said Radulfe these Normans which I suppose were introduced by Edward the Confessour the Conquerour took care of in a Provisional Law which carries this Title before it De jure Normannorum qui ante adventum Guilielmi Cives fuerant Anglicani where in the Body thereof it is that Omnis Francigena qui tempore Edwardi propinqui nostri fuit in Anglia particeps consuetudinum Anglorum quod ipsi dicunt Anhlote Anscote i.e. Scot and Lot as we call it persolvat secundùm legem Anglorum but this was not altogether so strange if we consider the Warlike disposition of the Normans in that Age in continual Turmoils with the French and the relation King Edward had to Normandy Their Fortifications were not of any great Variety Judge Dodaridge in his Treatise of Nobllity p. 118. Writing of Knights their disposing of their Estates in those Elder times saith For they did thus