his Lord let the Lord seek by the award of his Court from three weeks to three weeks to find some distress upon the Tenements untill the fourth Court alwayes with witnesses and if within that time he can find no distress in that Tenement whereby he may have Justice of his Tenant then at the fourth Court let it be awarded that he shall take that Tenement into his hand in the name of a distress as if it were an Ox or a Cow and let him keep it a year and a day in his hand without manuring it within which term if the Tenant come and pay his arrearages and make reasonable amends for the withholding then let him have and enjoy his Tenement as his Ancestors and he before held it and if he do not come before the year and the day be past then let the Lord goe to the next County Court with his witnesses of his own Court and pronounce there this process to have further witnesses and by the award of his Court after the County Court holden he shall enter and manare in those Lands and Tenements as in his own and if the Tenant come afterwards and will re-have his Tenements and hold them as he aid before let him make agreement with the Lord according as it is antiently said Nighesith yeld and Nighesith geld i. e. Let him nine times pay and Nine times repay Hath he not since any thing given nor hath he not since any thing paid let him pay V. lib. for his errour before he become Tenant or Holder again See hereof 10 Hen. 3. Fitz. Cessavit 60. statute 10. Edw. 2. of Gavelet in London In the Collection of Statutes London 2. matter much tending to this purpose that by this word Gavelet the Lord shall have the Land for the Ceasing of the Tenant I have read much to this purpose in Mr. Lambards perambulation of Kent but the whole hereof relates to a Writ of Recovery for default or non-payment of Gafol or Gable or Rent the word Gavelet which is nothing but the let hindrance or with-holding of Gavel Gable or Rent which Writ runs in London as well as in Kent and all of it nothing to our Tenure in Question To the same purpose is that which Mr. S. urgeth in his 12th page where he gives a Learned exposition which serves for a fortification as well as an explanation upon the word Gafol which he describes varied in the Dialect Testament Saxonic being written gafol gavel gaful and gafel and shews how it passes in Matth. 17. Vers 24 2 and cap. 22. vers 17 19. to signifie Tribute which I think may prove an acceptation thereof naturally enough and in Matth. 25. vers 27. it serveth to express advantage or usury and in King Withreds Laws of Sr. Henry Spelmans Edition of his antient Councils it is expounded to us by what it is commonly received Redditus vel persio and Mr. Selden in his notes upon Eadmerus renders geÆ¿â—â—ic gaful to signifie Solitus census the wonted or usual Payment or Rent But Mr. S. concludes thus To be short saith he Gafol is a word which as Gablum in Domesdey book the skilfull in the Saxon tongue with Sir Henry Spelman else where turn by what Gabella is expounded abroad viz. vectigal portorium Tributum exactio census c. in Latine but in English with Verstegan Tribute Tax or Custome whereunto Mr. Lambard and Sir Edward Coke agree upon which and to all Mr. S. craves leave to add Rent which I shall not in any wise deny him provided as I said before he will be contented with that exposition to signifie Rent and not go about for the sound sake to impose it on the Tenure for in this I would begg an information or rather satisfaction whether Gavelkind-land may not be and is not held without Rent which if it be found to be as I know it is generally used in Urchenfield and perhaps in other places also then doth it destroy the very nature of the Etymologye But with this part upon the mistake of the word Gavel in those compounds mentioned I have spoken sufficiently and further I will not trouble the Readers patience about it In the next place here are CHAP. X. Several Deeds cited by Mr. S. that have their Tenenda's ad Gavilikendam examined and expounded I Am constrained to run over the Examination of several Deeds produced in Transcript by Mr. S. and having finished the Discourse of the word Single and in Composition I am come to experiment the Tryal of it in the Term proper with its affix of which Mr. S. saith pag. 38. Thus for example in a number of Deeds and Conveyances which I have seen recorded in the leiger-books of the Cathedral at Canterbury and St. Austins late Abbey there phrased all of them after this manner Tenendum ad or in Gavelikendam c. I presume he hath cited the principallest of them and if so then I assure you I am not stumbled at any of them and first Pag. 39. for that Deed of the Sons of Wibaldus who did grant Infirmis de Herbaldune unam acram dimidiam terrae scil Langenekre cum fratre suo Wiberto infirmo in perpetuam Eleemâ—synam and to Gavelkynd Reddendo sibi duos denarios c. Mr. S. rightly collects from the mold and cast of that Deed the binding of the Heirs in relation to their gift for these Sons of Wibaldus and their Sons and Heirs and their Daughters do all joyn in the alienation of this Acre and an half to Herbaldune Hospital I will not trouble my self about the Deed to Quarrel at their Scrivener who seldome found dimidiam written for dimidium or believe that he might in his intermixture of and to Gavel-kynd make an ignorant coherence we will grant it all right and straight and take along with us what Mr. S. saith pag. 51. that such an expression as Tenendum in or ad Gavel-kynd or the like was necessary to render the granted Land partible after the Custome of Gavelkind without the help of prescription requisite in partible Land else where out of Kent and hereupon referrs to the pleading of Burga the wife of Peter de Bending put down and published in the appendix to his book Script 5. But the first he would have to be a gift or grant in perpetuam but not in puram Eleemosynam there is no more than perpetuam which whether it be or not is nothing to our purpose but the Reddendum as well as the Tenendum in that Deed hath somewhat not familiar for it is said there Reddendo sibi duos denarios c. which Sibi hath relation to Wiberto infirmo the last immediately before mentioned rather than to any other in that Deed for all other persons therein comprehended are by doubles as Nos filios Wibaldi Herbwinum Eilwardum Heredes suos Thomam Paganum with this also Hoc concedunt filiae suae Basilia
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
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
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
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
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-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
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
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
ut limites essent infra Sterlinum Fortha infra Britannodunum Glotta inter duos amnes vallum Severi ANGLI enim BRITONES agros relictos inter se partiti sunt Glotta eis dirimente The Picts for some time after they had in vain from their Assistants expected Restauration and seeing themselves deluded ad Cimbros Scandianos id est ut nunc loquimur in Daniam Norvegiam transmiserunt This * Severus saith Bedc à caeteris indomitis gentibus non muro ut quidam estimantâ— sed vallot distinguendam putavit Hit begyrde gefaestnade mid â—ice mid eorþƿealle fâ— am sae to Æ¿ae that is and did girt it and firmed it with a Dike and with an Earth-wall from Sea to Sea Vâ—llum Severi was not that Wall which reached from Carlisle to Tinmouth But that the Vestigia's whereof are to be seen ab Abircorno per Glasgoensem agrum ad Clâ—dae fluvii ostia ubi nunc castrum Dunbritonum situm est This Waâ—l was made of Turf without it is at this time remaining a small-Building not very Ruinous which the Scots call Dun a paix which some there say doth signifie the Hill or Memorial of peace about which are still to be seen above twenty Tumuli or Lowes Dun indeed in our antient Language signifies a Hill by which name the Inhabitants in and about Dunkirk call the adjoyning Hills and the name of the Town from its situation among those very Hills takes its Denomination But that noted remain is thought to be a Temple Dedicated to the Deus Terminus Built by the Romans at their Non plus ultra These are those parts of Scotland inhabited by the Saxons and Britains distinguished from the antient Scots now called High-landers from their site among the Hills by the name of Low-landers and Saxons who setled at this time not only their Language in these parts but their Customs also which by my small Observation seem most of them to be such as were in use before the Normans invaded the Southern parts of this Island and no wonder if you find through several Ages among them a succession in the preference of Primogeniture since their Militia's did require it by reason of their continual Broyls These atchievements with their Customs they maintained under a Diversity of Kings both Scots and Saxons for the revolutions were very frequent and various Yet such I say is the Deduction to be made from this Chapter that if any thing proves the Tenure to be the antient one of the original Planters the finding of it in these Corners and Angles in these remote Islands and in these privileged Lands of the Bishops is the greatest argument that I can fancy or imagine Before I conclude I shall speak a little to some other particulars and first of CHAP. XVIII Villenage the meaning of it the antiquity thereof Of the antient words Clown Pagan Knave Of Surnames of Soc and Sac. MR. S. In his third proposition in his 61. and 62. pages taking it for granted that the Term Gavel-kind is of a Saxon Derivation and Parentage sixeth its entrance into our Isle with the comming in of the Saxons concerning which I have formerly Discoursed and therefore in this place shall pass it by Only take notice that he deservedly Censures and Confutes such as have laboured to fix its introduction among us by the comming of the Normans of which number Mr. Selden hath hapned to be one as in his illustrations upon Mr. Draitons Poly-olbion who out of Spot St. Austins Chronicler relates the Story of the Kentish-men with their green Boughs treating with the Norman Conquerour with which Story many persons have been well pleased and yet by what I understand of it it shews rather a procurement of a Confirmation of this Custom among the rest than a Creation thereof at that time But he having sufficiently evicted the improbability of that Story passeth in his 72. and 73. pages to shew Spots mistake in averring there were no Villains in Kent which he confutes by a Citation of an antient M S Chartulary in Sir Thomas Cottons Library and by certain Observations out of the Kentish Survey in Domesdey The same mistake was lately among many others generally received as that Villenage was the Badge of the Norman Conquest but this I can affirm from my own Reading that the name carried with it no such Odium and Reproach in Elder times as it hath done in later Days For what was Villanus more than a Villager to such or such a Lord what their Villenage but their Duties and ustom-services belonging to a Village for the Lord's use So that the intrinsecal yalow of the word Villain is only one that inhabits or lives in a Village The like is of Colonus a Clown which is no more than one that Tills then Land so also of Paganus called in the Saxon Tongue * 18. Leg. Regis Inae 〈…〉 from whence came their Ceoâ—â—ep now called Churls which is not much different in Denomination from Villanus and is one that dwells in a Village and not as we take Pagan commonly to signifie one that is of an Ethnical Religion But to Discouse of them in order as they lye before us Villain is a Villager of whom Minshew upon the word saith Galli suos rusticos villicos propriè dicunt villaines villanus in uit Budaeus dicitur quod villae adscriptus colonoriae conditioniâ—â— aut ipse addictus aut majores sui fuerint quod tamen nomen loquentium inscitia in contumeliam jam vertit But Mr. S. out of the Mirroir speaks them thus Cultivers de fief demorants en villages uplande car de vill est dit villeine but as I said in another place there is to be found almost in every Leaf in Domesd y-book not only an account of what Villains were in each Mannour at the time of that Survey but also how many there were in the time of Edward the Confessour and as Mr. S. hath observed there is a name or two found in that Record that hath much more of Servility than Villenage carries with it One of which is there termed Servi and were more immediately dependant upon the Lord's will than the Villani were which were those Nief's or Neif's they had in antient time which were Bondmen or little better than Slaves Mr. S. is of opinion that the word or term Villanus was not in use before the Norman Conquest for in his 126th page he saith as afore-time the Saxons had their Ceorles Gebures Polcmen c. so afterwards the Normans their Villani Bordmanni Cotarii c. certainly these three names the Normans found here First for the Bordmanni if that name as well as Cotarii be not Saxon I know not what is for the Bordmanni were such as lived upon the Bordlands which were according to Bracton * Bract. Lib. 4. Tract 3. cap. 9. num 5. the Demesnes that Lords kept in their hands to the maintenance of their
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