admit But to run over some more of his Gables That which he discourses of in his 30th page is a For-gavel which is rightly rendred foris Gabulum and is defined to be quasi extra vel praeter Gabulum quod Domino capitali debetur and this corresponds with what before I have said that it was a Rent or a Duty besides over and above or beyond the Original contract or bargain The like is in Mete-gavel which is Cibi Gablum a Rent of meat or food Swine-gavel which is porcorum Gablum a Rent of Swine Werke-gavel and Werke-gabulum which is operis Gablum Hunig-gavel which is Gabulum mellis * For before that Sagar was from the Indies brought among us the use of Honey was frequent instead thereof So that I have observ'd in some very antient Rentals as great a proportion of Honey as there would be required of Sugar to seâ—ve such a Family and much reserved to the King in most Counties as appears by Domâ—sdey Rent Honey of which sort in Domesdey you may find much and in the 60. Law of King Ina we find a bere-gafol which is a Rent of Beer or rather Barley as Mr. Lambard expoundeth it For in some Countries of England and in Scotland they to this day call Barley Beer There is also in the 66. of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speaking of a yard of Land which Mr. Lambard renders to signifie Mercede conductam that is hired for Rent or Wages So is it in the Covenants betwixt King Alured and Guthrun the Dane In the second Article where it is said bu tan ðaem câ—oâ—le de on gafollande rit which Mr. Lambard renders thus Siquidem is Rusticus censum annuum impendens non fuerit which I think in English is provided that that Country-man doth not sit on Rented Land for But in the old English as well as to this day in the present Scotch signifies without or wanting c. There I find gafollande is turned into Census which is as much as I have need to make use of or take notice of In the Laws of King Aethelstan it is thus Æ¿ealisc monnes c. ê§ He ðam cyng gafol-gyldan maeg which is thus Translated Wallus si in eas opes creverit c. ut annuum Regi censum pendat which is if a Welsh-man increaseth so in Riches c. that he can or might yield a yearly Rent to the King Such a one perhaps as we call a Subsidy man or a Man in the King's Books So in the sixth of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is if any one Fights in the House of one that payes Rent and in the 22. of the same King that so often recited Law Æ¿ealH gafolgylda Hund tÆ¿ lftig â—cill which is turned into Latin thus Mr. S. pag. 33. Wallus censum pendens annuum c. in the same sense is the word Gavel-man cited by * Many there are that with Mr. Selden account gafol to signifie several things as tributum c. but not in the least with reference to the Tenure he cites the Aâ—â—ales Anglosaxoas In Bibliotheca Cottoniana Anno 1012. Ãa ê§ gafol gelaest sae frið aþas asporene Æ¿aeson þa to ferde se Here Æ¿ide sÆ¿a He aer gegaderode Æ¿as Ãa bugon to þam cynge of þam Here fif feoÆ¿ertig scypa Him beHeton ê§ Hi Æ¿oldon þysne eard Healoan He Hi fedan sceolde scÆ¿ydon id est Tributo soluto amicitiae juramentis praestitis excrcitus ut ante erat congregatus late dispergitur Maneb vit vero cum Rege ex ipso exercitu quadraginta quinque naves ipsique side datâ promiserunt se Terram hanc dâ—fensuros modo eos aleret vestiret Rex Danorum Rex tunc Swanus crat quorum ita pepigit Ethelredus Utrumque autem praestationis quam diximus genus Danegeld Danegeldum seu Danageldum id est Tributum Danicum dicebatur Seld. Mar. claus l. 2. c. 11. Here we may observe that geld is most properly Tribute though in the former part of this Saxon citation Mr. Selden renders gafol by Tributum and properly it doth signifie a payment Mr. S. which hath no more in signification than one that payes a Rent and relates not at all to the Tenure and I believe if seriously looked into that many of these compounds who have this similitude of sounds do not hold under or by the Tenure of partition which if so here were nomen sine re and this last may be a Term as significant for any one that payes a rent in Cumberland as in Kent In this recited page it is that Mr. S. hath rightly fixed his Gavel for saith he one thing more I have to note before I leave Gable Gavel c. that with Mala it fignifies Rents Services or Customs and in his 35th page he addeth by this time the Reader is satisfied I hope saith he touching the true construction of Gavel Gafol Gable or how ever else he shall chance to find it written in each importing Cens i. e. a Rent either in Money Provision or Works To conclude I am of the same opinion with Mr. S. that these intermixtures and compounds do all hold a reference to gafol Gablum or Gabulum that all of them have one and the same exposition yet that none of them have any relation to the Tenure of partition or to any other Tenure besides the Renting or paying of a Rent for Land c. There is only one thing more left to be considered which may seem to have in it some strength and that is in the 31. page of Mr. S. where he cites this postea per quandam consuetudinem quae vocatur Gavelate usitatam in Comitatu isto viz. Kanc de terris tenementis de Gavelkynde pro redditibus servitiis quae à retro fuerint de eisdem per plures annos devenerunt eaedem terrae in manus cujusdam Abbatis c. Now this consuetudo de Gavelate used in the Lands and Tenements held in Gavelkind seems the one to have relation to the other for Mr. S. in the beginning of that Paragraph tells us that this Gavelate was not a Reut or a Service but betokeneth a Rent or a Service with-held denied or detained causing the Forfeiture of the Tenement to the Lord and whereas that Record saith it was used in that County upon Lands and Tenements held in Gavelkind Sir Edward Coke as Mr. S. himself cites him saith Gaveletum is as much as to say as to cease or let to pay the Rent Breve de Gavelleto in London est Breve de cessavit in Biennium c. pro redditu ibidem quia Tenementa fuerunt indistringibilia So that this Brief lay in London as well as Kent and Minshew in his Dictionary upon the word Gavelet exemplifies it by a Case That if any Tenant in Gavelkind with-hold his Rent and his Services of the Tenement which he holdeth of
Board or Table and Cotarii were Cottagers such as dwelt in a Cottage * Anno 4. Ed. 1. Stat. 1. that is to say a House without Land belonging to it and comes from the Saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is the same with Tugurium and Tectum in Latin a â—egendo so as this is in signification a Cover or Shelter because those small Habitations were only made to cover them from the Sun and Weather I am not ignorant of that great mistake the whole Current of Writers have run into those whose Works have been published within these last 300 years where they generally endeavour to load all the indignities of Tenures of Servility and Vassalage upon this Norman change I deny not but that some were at that time introduced especially many Jocular Tenures which were the effects of private contracts betwixt the Lord and his Tenants and not of any general concernment but hence I cannot yield to conclude that all Tenures of Servility were of their introduction Mr. S. continues in his opinion in the 104th page where he writes That Fee-simple Fee-tayl Fee-farm Grand petit Serjeanty Escuage Burgage Villenage c. being all of the Norman plantation and we by them saith he at least since their Conquest of us brought acquainted with them c. perhaps those compounds might be the effect of the consultations of some of the Kings of the Norman race but for the word Fee Minshew discourseth very well upon it for saith he our antient Lawyers either not observed from whence the word grew or at least not sufficiently expressed their knowledge what it signified among them from whom they took it Feudum whence the word Fief or Fee commeth signifieth in the German Language * In like manner doth Mr. S. labour to deduce it from a Saxon original p. 107. Beneficium cujus nomine opera quaedam gratiae testificandae causa debentur and our of Hotoman saith that by this name go all Lands and Tenements that are held by any acknowledgment of any superiority to any higher Lord so is all the Land in England except the Crown land held that is of Feudum or Fee for he that can say most for his Estute sayeth but this Seisitus inde in Dominico meo ut de seudo which is I am seised of this or that Land or Tenement in my demain as of Fee which is no more than if he should say It is my Demain or proper Land after a sort because it is to me and my Heirs for ever yet not simply mine because I hold it in the nature of a benefit from another and Fee-tayl as distinguished was not an introduction of the Normans for that Minshew observes it to have its Original from the Statute of Westm. 2. c. 1. which was made Anno 13. Edw. 1. The word Feud is used familiarly to this day in the Higher and lower Germanyes For what concerus grand petit Serjeanty I believe the words to be French and so introduced by the Normans to express those Services that were due to the Kings of England before the Conquest such Services being reserved by the Saxon Kings The service of Escuage was before the Norman Conquest though not known by that name the like was of Burgage which is no more than a yearly Rent whereby men of Cities and Burrows held their Lands or Tenements of the King or any other Lord which was in use before the Conquest Concerning Villenage Mr. S. doth cite out of Mr. Lambards Perambulation of Kent in Mepham under the Term of Agenes-land this as a very antient passage which had been enough to have convinced me that there had been Villains before the Norman Conquest and it is this Et si Villanus ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio alledio c. and in his 114. page citeth an old Version of the 19. and 21. of King Ina's Laws of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is made thereby to signifie Villanus or Colonus and it is convicted by Domesdey Book Survey in Sudsexe thus Radulfus tenet de Willielmo viz. de Warene BRISTELMESTUNE Brictric tenuit de dono Godwini Comitis T. R. E. modo se defendit pro V. hid dim TraÌ„ est III car In dniÌ„o est dimid car XVIII villiÌ„ IX Bordarii cum III car uno servo De gablo IV milia alletium In eadem villa tenet VVidardus de Willo VI. hid unam Vs. proâ—tanto se defendit Tres Aloarn tenuerunt de Rege Edwardo potuerunt ire quolibet Unus ex eis habuit Aulam Villani tenuerunt partes aliorum Duorum Here is an express of a Servus and also of the Villani who held this Land in the time of Edward the Confessour Besides this I could allege many more but Sir Edward Coke upon Littleton saith that Villani in Domesday are not there taken for Bond-men but had their name de Villis because they had Ferms and there did works of Husbandry for the Lord and they were ever before named Bordarii which is contrary to Mr. S. in what I cited before of him concerning Bordmanni which I believe is one and the same thing with Bordarii and such as are Bond-men are called Servi Thus Sir Edward Coke But I believe the Normans found these Villains here even by their name by which I believe they were of a very antient standing for that I find them known by the Britains by that Title as they are often mentioned in the Laws of Howel-dha in a Law which before in this 〈◊〉 I mentioned is notice taken of a King's Villain and of a Nobleman's Villain and then another that gives a right to the Foster-children of dividing Land with the Children of the Villein but a little more plainly to bring the proof in those Laws it is Demonstrated how that Tres homines promoveri possunt uâ—a die that is to say as I guess it they are made Gentlemen in one day here you must take the Latine as I found it Captivus si movetus in Swyd de XXIV officialibus Swyd is dignitas dignity so that the sense of it is this if the Prince bestows upon a Caprive the dignity of being one of the twenty four Chief officers of his Court it is an advancement peculiar or he becomes by it a Gentleman Secundus filius villani si sit clericus our common Law doth differ from the Civil Law which saith Partus sequitur ventrem where as the Common Law hath it partus sequitur Patrem but here provision is made that the Son of a villain being a Clergy man should become a Gentleman which is somewhat explained by the next Tertius Homo ex captiva villa si villa habeat à Domino patrie licentiam Ecclesiam aedificare in Cimiterio ejus corpora sepeliri tunc villa siâ— omnes homines de ea postea sunt liberi that
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
order their own Lands and Tenements one part they kept in their own hands and in them stately Houses and Castles were erected and made for their Habitation and defence of their Persons and the Realm also Forests and Parks were made there for the Pleasures Solace and Delight some were of a round Building of Stone for the most part Built upon a round pile of Earth either Natural but most commonly Cast up by man's Industry others upon a small rising or a plain Ground seldome more Capacious than to receive about twenty or thirty Men and were made rather to preserve the Persons and Goods of the Owners and his Servants and Tenants than to endure a long Siege of which sort there are many in Ireland because of their Antient intestine feuds but more upon the English and Scotish Borders many of which I have seen but with this difference as I said before that those the English did antiently Build were round and these for the most part square with one round Tower at one of the Angles both sorts of which were antiently called Fortalices and seldome made use of for Habitation because I find their mean dwelling Houses were made commonly under it or very near adjoyning to it And I discern a difference made betwixt those for Habitation and those I spake of that were only for a Safe-guard against sudden Inroads and Incursions for in Domesdey Book in the Survey of Erdisley in Herefordshire it is there recorded that ibi est domus defensabilis that is to say there is a dwelling House fortified which is now called the Castle of Erdisley and was Builded because of its Vicinity to the Welsh Borders and was intended by that Denomination to signifie more than one of those small Casties or Fortalices I lately spoke of these were the Strengths and Fortifications of those times most frequently in use I come lastly to speak of their Buildings in which there was something of an advantagious or at least an honourable change by the difference that was in the Mode of them I must confess the Norman manner was very noble and magnificent which by their Churches may be observed for the Saxons made theirs with Descents into them the Normans with Ascents the first made their Lights small and mean the second made them high and large these made their Arches stately with heights proportionable the others had their Arches and Coverings low and made their Walls of so great a thickness that they were a great Dammage and Impediment to the pleasure of their Lights when the Normans made use of no greater thickness or breadth in their Walls than would but well serve to bear their Height and Covering In the antient form of the Saxons before mentioned I have observed several Churches and pieces of other Architecture their entrances especially in their West-ends by Descents inwardly with Arches formed to correspond with those gradual Declensions and Steps all which shortning towards the greatest Door at the bottom of the Stairs over which for the most part was a finishing of a Semicircular piece of Gothick work and together made a kind of an artificial Perspective I have hitherto endeavoured in this tract to make it appear that for the space of 1700. years past we received no considerable Mutations or Alterations in our Laws and Customs That this our Tenure the subject of our present Discourse hath had the fortune to continue here from our British aborigines the first Planters of our Isle through those several changes and revolutions of Affairs and Governments that have hapned to it since that time and although in this Discourse preceding I may be thought to have walked a little beside the path yet I am perswaded I have not missed the way but kept and preserv'd the Goal in my eye Those alterations that are now found as to the general usage of this Tenure which was the Super-eminent custom of this Nation proceed not at all from any Enforcement or Coercion by reason of any of these forementioned Intrusions or Conquests but clearly by the consent and desire of the Proprietors and Persons therein concerned for in the County of Kent where Mr. S. saith this Tenure did generally over-spread there I say in the time of Hen. 8. several Lordships were discharged of this Tenure by Act of Parliament I have not all this while pleaded for the settlement or goodness of the Tenure to be used in this Age where Lands are well Peopled and fully Inhabited for it would be the destruction both of Lands and Linage but my business hath been to enquire into the state of the question the true Original Etymology and Use thereof The people of England by degrees have inextricated themselves from much servitude in their Customs and are now instated into a great privilege of Liberty and more particularly from those heavy pressures of Villenage the Slavery of which Custom hath received its Deaths wound in favorem libertatis for Sir Edward Coke out of Fortescue hath this note Impius Crudelis judicandus qui libertati non favet and gives this as the reason of it Angliae jura in omni casu dant favorem libertati the sense of Liberty was of so great force and power and the favour due unto it according to Law and Right of so great respect that those and the like pressures have received change and alteration and by the same power and equity joyned with the consent of the Proprietors it is so come to pass also that this our Gavelkind in most places of England is turned into the preference of Primogeniture for the preservation of Houses and Lands the next Chapter shall enquire though it seems to return far back whether we have any ground to believe that the CHAP. V. Trojan Brytains used the Tenure of Partition I Could not pass by without taking notice of a Marginal question that Mr. S. makes in pag. 54. and it is this By the way saith he how do our Britains claim descent from the Trojans Sith with them the eldest Son by Prerogative of primogeniture Monopolized the whole Inheritance I know not what Authors Mr. S. hath met with that he affirms so positively with our Britains the eldest Son did Monopolize all if his Sith with them relates to the Trojans I have nothing then left to answer to it nor do I think it worth the while to concern my self therein believing that neither Dares Phrygius nor Dictys Cretensis nor Homer nor any other pretended Trojan writer did intermeddle in the relation of Descent But I am perswaded it must have reference to the Brytains and that to them it is that he saith Sith with them the eldest Son Monopolizeth c. and notwithstanding I have some inducements to believe that Mr. S. asketh the question how our Britains claim Descent from the Trojans in Merriment and Jest yet in their defence to that very question there may so much be said which will carry a greater probability than any
the name but what referrs to the Tenure of Partition The Brytains enjoyed that part of Wales in the Saxon Governments and had not any fixed impression upon them by any before the Normans who over this County at last stretched their victorious Armes after many various successes on both parts and stout defence made by the Welsh for their Lands and proprieties enjoying it partly by force and partly by composition and agreement as the private family Histories do manifest which I have seen for there are several Familyâ—s of the greatest note in that Countrey that are able to produce testimonyes of enjoying their Lands and Birth in that circuit of Land for shires and Countreys are not of a VVelsh institution before the Norman Conquest so that by this it is probable they did not subvert all neither were they in quier about Abergavenny after the Reign of Henry Fitz Empress Gyraldus Cambrensis relates a series of their Actions in those parts But to leave these storyes I think it least of all probable that the Normans would borrow a â—entish word to denominate any thing to their British Tenants or plant it there as a Kentish Custome seeing in case the derivation according to Mr S's opinion should prove true this denomination was as much unknown to the Normans themselves as possibly it could be unto the Britains and alike to both of them if the Normans had found a necessity of making an intelligible expression and appellation of such a Custome of Partition certainly I should have met amongst them with the Roturier which I understand is in use over all France at this day and very frequently in Normandy the Island of Jersey parcell of the Norman Dukedome retaining still this Custome to this day under the name of the Roturier whilst her Sister Guernesey hath no footsteps of it but are as different in their Tenures as in the nature of their Soyl for in one as I am informed like as in Ireland no Toads Spiders or Venomous Creatures will live whilst in the other they have them in distastfull abundance But even now I touched upon the Saxon division of Shires and Countyes and told you it was not the British Policy which puts me in mind of that Order that was observed by the Welsh and rectified by Howel-dda in the ordering of his Principality with the carefull intermixture of civil-descents and military disposition wherein we shall find something to our matter in hand worthy the notice the description as Humfride Lloyd hath written out of the Laws and Ordinances of that Prince is in short thus First a Cantref which had its Denomination from one hundred Towns and signifies as much under which was so many Commots which the Welsh call Cwmmwd and signifies Provincia Regio Cohabitancia and confisted of twelve Mannours or Circuits and two Townships there were four Townships to every Circuit or Mannour and every Township comprehended four Gavels every Gavel had four Rhandirs and four Tenements were constituted under every Rhandir Of Gavel I have told you before that it signifies Tenura a Tenure Rhandir is a word that admits not of any proper Sign ficancy in our English speech but is by Doctor Davies rendred Pars aut Sors haereditaria from the Verb Rhannu Partiâ—i distribuere These divisions were set out by him as it were into a proper and peaccable Conveyance and Conduit-pipe for the Lands of his Principality which were lyable to this Partition so that we find in every Township four Gavels which were four great Holds or Tenures out of which I cannot find the Prince had any Rent for that the Gentry held their Lands very free from any base service only subjected to their Military policy and provision the Prince his own maintenance that so he might be obliged to a respect and care of every particular in his Principality was set out in every Cwmmwd or Commot which as I said before confisted of twelve Mannors or Circuits and two Townships which two Townships were belonging to the Prince thorough out each Commot in the Principality of Wales for in the person of this Howel the Territories of North-wales and South-wales were united as himself in the * M S. Penes Authorens Prooemium of his Laws doth declare This Gavel in the description aforesaid seems to be a large apportionment of Land belonging to a * Which by the Irish are called Canfimiy's and are the chief of their Gavels or Rhin-taloon See Davies his Irish reports Pen-cennedl or chief of a Family or Clan and doth per eminentiam signifie the Tenure that is to say their Gavel this being only or at the least most notably known by them So that every Pen-cennedl in his Gavel having four Rhandirs that is sortes or partes Hereditariae ready divided and apportioned for his Cennedl or Generation and not only so but also a sub-division of many Tenements under the Rhandirs shews perfectly a Gavel Tenure or Hold exactly observed even in their general partition of Lands and this so antient at least as the time when Howel-Dda collected these Laws which was about the year of our Lord 942. so that the true genuine Signification of all is Tot partes Hereditariae in Tenura that is each Gavel or Tenure did consist of so many Rhandirs or Hereditary divisions ready parted each of these Tenures being supposed to be so ordered as to admit of a Division and if need were of Sub-divisions also that so a Township might the more aptly be constituted for the execution of this common Tenure and these so holding in or rather by their Gafael were not only the antient Villati or Villani among the Brytains but also the Gentry Lords and Prince himself were subject to it The use of the word viz. Gavel to a proper Signification I have shew'd and that also Extra Cantium to which County Mr. S. doth labour to Monopolize it and the use thereof for several hundreds of year past even at such a time when the Correspondency in probability betwixt the Brytains and Saxons was so small and the Odium so great in respect of the unforgotten intrusion of the last that in that continued state of Warr it was not probable they would have accepted of any Saxon Customs by a name so insignificant to the thing as antiently the Etymology of it was received or so little to the matter as Mr. S's novel Exposition would render it or to the rational use thereof But I have already shewn in the fore-going Discourse in what sense the Brytains have received it and also what Doctor Davies in his Cambro-British Dictionary which in my judgment is an Elaborate and Critical piece hath said and exemplified thereupon for he it is that not only affirms Gafaelu by English Letters pronounced Gavaily to signifie Tenere to hold as before I have said But also Gafael by English Letters spoken Gavel the word in Controversie to be Tenura a hold But for the Statutum Walliae wich Mr. S. discourseth
of wherein he affirms that the tâ—tm Gavelkind is not to be found though the Castom of partition is there in mentioned which without any great trouble all things considered might argue it to be a British custom yet confesses that the Parliament in the Statute of 34 Hen. 8. can 26. did make use of the word Gavelkind But how saith he questioning and then resolving it only as bâ—rrowed to help to Describe and Illâ—strate that partible quality of the Lands in Wales therein mentioned and that it was transmitted by our Lawyers who borrowed the term to make use of it foâ— Illustration sake But with pardon I shall â—ence â—â—ferr that it passed there as a most natural and genuine Expression and is properly a peculiar of their own upon the grounds before set down As for the antient Customs of the Kingdome of Ireland I am informed by the Irish that their Rhein-ta-loon which is their parting of Land is generally among the Comminalty and is like that oâ— the Country of Flanders where Daughters share as well as the Sons and spreads all over that Country also the like to which I shall shew you in Wareham in Dorsetshire in the next Chapter Râ—ein in the Irish is to part and I believe comes from the British Rhannu I have little to say except it be that when King John overthrew the Brehon Law Anno Regni sui 12. and then setled the English Laws that this Tenure of partition might probably receive a great abatement of its common usage and force among them who it seems have the foot-steps and remainders thereof very Visible unto these our days But in this I shall desire to be excus'd as not having informed my self sufficiently so as to make a satisfactory Discourse thereof confessing my self much ignorant in that History and shall proceed in the Discourse CHAP. VII Of soveral Customs of Descent of Lands of the welsh Laws of Partition of Knights-sâ—rvice and warâ—ship among them STill it is that Mr. S. goes about to confine the Knowledge of Gavelkind to the Circuit of Kent and will not allow it Gavelkind in any other Country but that For in pag. 49. he saith thus what else where I mean in other Shires and Counties they properly call by the name of Socage whether free or base we here in Kent are wont to call by the name of Gavelkind or if you please in Mr. Lambards expression all Socage-service here properly so called is cloathed with the apparel of Gavelkind and under it in a large acception is understood all such Land within the County as is not Knights-fee or Knights-service-Land the term serving here to Contra-distinguish it from Knights-service-Land But let a man go into Urchinfield in the County of Hereford and inquire of an Inhabitant thereof in what manner Lands there are held he will readily and speedily resolve him that they are subject to Gavelkind and as fully inform you of the nature of that their Tenure viz. that by it their Lands are all partible among the Males and in defect of them among the Females as other Lands of Inheritance are throughout England I have met with another kind and fort of Partition which I dare venture to call Gavelkind and is very unusual because by the Custom of the place both Males and Females have a right equally in the Partition I think it may not prove displeasing to insert the Record as it was shewn to me by my Industrious friend Mr. Falconbridge to whom for this and many others favours I must acknowledge my self with much-gratefulness Indebted and thus it is in the Office of the Chamberlains of the Exchequer of Receipt being the like as I find it in Flanders and the same with that in Ireland Dorset Placita de jurat is Assiss Anno 16. Edw. 1. Metingh Edwardus Kaynel Maria filia Roberti de Camma The Irish have the same manner of Partition Davies-Irish reports Jobannes Bereset Matill uxor ejus Johanna soror ejusdem Matill petunt versus Johannem Alfrith de Warham unum Toftum cum pertinentiis in Warham de quo Johannes Gerard. consanguineus predictorum Edwardi Mariae Matill Johannae cujus heredes ipsi sunt fuit seisitus in Dominico suo ut de feodo die quo obiit c. unde dicunt c. Et Johannes venit dicit quod Tenementa in Warham sunt partibilia inter Mascuâ—os Femellas dicit quod predictus Edwardus habet quasdam Gunnoram Matill Christianam Albredam Eufemiam sorores participes ipsius Edwardi aliorum petentium que tantum jus habent in re petita sicut c. que non nominantur in Bâ—evi unde petit judicium de Brevi c. Edwardus alii non possunt hoc dedicere Ideo consideratum est quod praedictus Johannes eat inde sine die c. This though it may seem strange yet may properly enough be called a Gavelkind for let the Custom of any place be according to the usual or unusual way of Partition it is but the Tenure of that place and will come well enough under that Denomination and that which Mr. S. brings in his 49th page as a Solution to an Objection viz. That it is no other than a Custom generally spreading it self throughout the whole Country in Land of that nature should have been thus laid down without confining it to the County of Kent viz. throughout any Country or all Countries in Land of that nature for so indeed it is In the Villages round the City of Hereford Item Lou per Custonie aâ—pel Burgh-English en ascun Burgh le fits puisn inherita touts les Tenements c. Littleton Lib. 2. Sect. 211. I find their Lands are all held in the Tenure of Borough-English where without difficulty I conclude that it is a Custom spreading it self throughout those Parishes and Villages in Land of that nature neither can it be otherwise but that the youngest Son ought to be and must by Law be found Heir so long as that Land remains under the same Services and Copy-holdings of their respective Mannours and the Suters here do as much stand upon their Customs as in Urchenfield they insist upon their Custom of Partition among the Males or as Wareham in Dorsetshire among both Males and Females another sort of usage in the Tenure of Burgh-English is mentioned by Sir Edward Coke upon * Lib. 2. Cap. 11. Sect. 211. Littleton in these words within the Mannour of B. in the County of Berk there is such a Custom that if a Man have divers Daughters and no Son and Dyeth the eldest Daughter shall only Inherit and if he have no Daughters but Sisters the eldest Sister by the Custom shall Inherit and sometime the youngest and divers other Customs there be in like Cases And brings in Britton to strengthen him and to confirm what I have said saying De terres des ancienes
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
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
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
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
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
practice in all such places where Pecus is in greater abundance than Pecunia And for the Antiquâ—ty of Partition of Lands we shall find an example thereof in the holy Scripture where it seems to me that the Community of the Law and the Knowledge of it are both taken for granted this being a Case of Law resolved upon a question and it is to be found in the 21 Chapter of Deuteronomy verse 7. where though the Case be in Bigamy yet there we find an Order of Partition which was to be observed even nolenti patre If a man hath two wives saith the Text one beloved and another hated and they have born him Children both the beloved and the hated and if the first-born son be hers that was hated then it shall be when he maketh his sons to inherit that which he hath that he may not make the son of the beloved first-born before the son of the hated which is indeed the first-born but he shall acknowledge the son of the hated for the first-born by giving him a double portion of all that is found with him for he is the beginning of his strength the right of the first-born is his This Law provides that the eldestson notwithstanding the father's hatred shall have his right in all whereof the father was possessed according to the Rule of Right which was thus In case a man had five sons the father's possessions were divided into six parts and the eldest had by right two of those parts By this we may observe the Antiquity of the Partition of Lands and Goods constituted even amongst those People to whom God himself was Legislator and it is observable that it was at the first Plantation of the Land of Canaan where to me it seems that this Law glanceth at the fundamental of Dividing binding up the father to do this rectifi'd Justice to his son got of the woman hated * Which Law as Mr. Selden illustrates it may seem to be grounded upon the practice of Noah Noachus tres filii ejus Semus Chamus laphetus qui velut Adae in generis humaai post diluvium instaurationem personam jam simul induerant Domini pro indiviso rerum omnium sacti sunt Formula donationts est Genes cap. 9.2 Crescite multiplicamini replete terram Pavor vester Tremor vester erit super omne animal terrae super cunctum volatile coeli c. Et scimus ex sacris literis Tellurem à Noachid is seculis aliquot post diluvium esse divisam A Japeto filiis ejus divisae sunt Insulae Gentium in terris suis unusquisque juxta linguam suam juxta familias suas in nationibus suis Quod in Genes 10.25 3. ait Moses Scilicet à Tanai fluvio usque in Mare Atlanticum sâ—u per Magnam Asiae Occidentalis quae in Septentrionem vergit partem praeter totam Europam limitibus juxta familiaruâ— rumerum designatis sedes ut Domini privati accipere Quemadmodum Chamus posterique ejus non dissimili modo quod Austro Africo expofitum est Semus plagas Orientales usque ad Indiam Invaluit etiam Traditio ipsum Noachum perinde ac si totius Dominus in solidum aut Arbiter per comoromissum suisset distributionis hujus sâ—â—l privati hujusmodi Dominii post diluvium instaurationis autorem suisse idque 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 juxta oraculnm divinitus acceptum eamque anno aetatis sua 930. qui à diluvio erat 330. ante obitum ejus vigesimus Testamento firmâsse atque moribundum illud in Semi silii primogeniti maâ—us tradidisse cunctosque simul monuisse nequis corum fratris fines invaderet nec injuriâ alter alterum afficeret quoniam inde ut discordiarum atque bellorum intestinorum causa oriretur foret necessum Selden Mare clausum lib. 1. cap. 4. To which I think fit to subjoyn what he writes in the same Book cap. 8. how this partition was mystically in the mist of their inventions observed by the Heathen Vera sunt quae loquuntur Poetae ut rect è Lactantius sed obtentu aliquo specieque velata Et sic veritatem mendacio velaverunt ut veritas ipsa persuasioni publicae nihil derogaret Fabuloso quod diximus tempore devictis scribunt Titanibus sorte Mundum divisisse Deos fratres Iovem Pluronem Neptunum Iovi Coelum Plutoni Inferna Neptuno Mare cessisse Rejectis autem augis illis de sydereo heic coelo seu aethere de infernorum seu mortuorum regno demum de Terra tota fratrum omnium post divisionem communi quibus patienter sibi imponi vulgus sinebat res ipsâ— quam in larvatâ hâc historiâ latere veterum aliquot docuere alia omnine erat Non Deos hosce sed homines fuisse asserunt Nec coeli sed plagae orientalis ex qua mortalibus lux datur unde superior visa est ideoque coelum dictum Iovem Regem fuisse Plutonem autem accidentis quae solis recessum Noctemque â—stendit unde inferior ea dicta inferna Maris denique interjectarum Insularum Dominum fuisse Neptunum è Lactantio porra scribit Iupiter Neptuno imperium dat Maris ut Insulis emnibus quae loca essent secus Mare omnibus regnaret Iohannis Gryphiander de Insulis Cap. 31. S. 75. de Tribus Noachi filiis rem totam de tribus Diis narratam fidentèr capiat Verba ejus sunt Id â—roculdubio ex partitione Terrarum inter Tres filios Noachi ex quibus Japheto Insulae obvenerunt causam traxit Sir Henry Spelman in Verb. Gaveletum thinking Gavelkind to be of a Sà xon Original affirms it to be brought out of Germany and describes the Tenure of it very justly Qua omnes filii ex aequis portionibus patris adeunt hereditatem and out of Tacitus proves it to be Mos vetus Germaniae Out of whom I shall add by way of explanation what he in his Tract de Moribus Germanorum saith Haeredes tamen successoresque sui cuique liberi nullum Test amentum si liberi non sunt proximus gradus in possessione fratres patrui avunculi This proximus gradus argues precisely for this antient usage although it had not been set down to be Mos vetus Germaniae and deduced from these antient Times we find it also to this day even in regno adeundo among the Princes of the German Empire which was once very wittily evicted by a merry Gentleman or as some say the Duke's Jester who perceiving after the death of one of the Dukes of Saxony the Brethren participants claiming according to custom their Apportionments and Divisions in the Dukedom with the Elder Brother involv'd into high discontents and the Council of the Nobility at a stand what course to take for a reconciliation of them about the parting of the Demesns of the deceased Duke This Man comes in and borrows of the young Duke