Ex Libris C. K. OGDEN TREATISE O F GAVELKIND, Both NAME and THING. SHEWING The True Etymologic and Derivation of the One, the Nature, Antiquity, and Original of the Other, With fundry emergent O B s E RVAT IONS, both pleafant and profitable to be known of Kentifh-men and others, efpe- cially fuch as are ftudious, either of the ancient Cuftome, or the Common Law of this Kingdome. By (a Wcil-willcr to both) WILLIAM SOMNER. The SECOND EDITION corrected from the many Errors of the former Impreffion. To which is added, The LIFE of the AUTHOR, Written, newly revis'dj and much enlarged by the prefenc Lord Bifliop of PETERBOROUGH, Ftrltx qui potutt rerum cognojcere caufas. Virg. 2. Georg. Nemu fibi blandiatur de auttoritate veterum, quibus etft fabul as may fe- cure and refcue both (uncapable of other re- a ^ compence] The PREFACE. compence) from that fcorn, negleEl and con~ tempt m the dayes of fo much novelty fo freely cafl upon them, fence by falling into fome hands, fo good an improvement may be made of them for the publike. I may perchance (at firfl fight, at leaft) be thought too bold with the common Law- yers^ too bufee in their Common-wealth, to& much medling tn matters of their peculiar Science -, yet no otherwife, I hope, than that they and their friends may be willing to ex-" cufe me. I am one that honour their pro- fejjlon, and have here done or fa'id nothing, out of oppojition 5 my intent being onely in my way to do them fervice, and their pro- jejfion right, by holding forth to publike view fome Antiquities tending at once to the fatisfaBion of the one, and illuftration of the other. For which purpofe 1 have by me fome other things in a readinejfe for the pub- like, and which JJjall not (God willing) much longer be retarded, in cafe thefe my prefent endeavours (as my paji have done) meet with any proportionable encouragement, and the times permit, by the continuance of our 3 Counties The PREFACE. Counties peace , (Peace, I fay, that mo- ther of Arts : ) which with an enlarge- ment and eftablifhment of that blejjlng throughout the three Kingdomes, is a 'chief fubje& (courteous Reader) in the daily devo- tions of Thine humble Servant, THE POSTSCRIPT, -HE Reader is here further to be ad- vertifed, that both this Preface and iSBRl the following Treatife were firft '.-written more than twelve years agone, have lien by the Authour ever fince, and had not now come forth, but upon the encou- ragement of fome worthy and judicious friends. If therefore any thing (whether for language or otherwife) in either the one or the other, feem improper, uncouth, or un- fuitable to the prefent times, his patience and pardon is humbly craved and expeded. To O expedite fuch (in their perufal of this work) as are ignorant, but ftu- dious, of the Saxon Language, the Authour (although he have but lately fet forth a Saxon Dictionary) hath thought it very fit here to prefix the Saxdq Alphabet and Abbreviations. abcdefghikl mnopqrftuwxyz. ilk 1 mno pqjiJTu p x yz. th th that and Cantuarienfi,f the Court of Canterbury under Sir Nathanael Erent Commiflary. This name had been eminent in other ages, and in other Counties. 'John Somenour of Multon near Cropland was a Commoner of fome figure in the reign of b Pref. Antiq. Canterb. 4/0. 1640. c Ibid. d Cafaub. 4e Ling. Saxon, p. 141. 5 Henry The LIFE of Mr. SOMNER. $ Henry the fifth c . There was a publick Hall or Inn within this Univerfity, that was called from the firft owner of it, Hofpitium Som- weri, or Somenorfhyn f . And there is now a gentile branch of this ancient name in the County of Bucks. [And of late there was a Family of the Somners, or Sumners^ (proba- bly owing to the Ecclefiaftical Office oiSum- momtores, Summmers^ or Apparitors} of long ftanding in the Parifh of Pafton near Peterborough^ But let me obferve this for the honour of our modeft Author 5 that tho' the knowledge of Pedigrees was one of his proper talents, yet in all his works he gives no one hint of his own Parentage or name. When his forward years made him capa- ble of literature, he was committed to the Free School of that City, then govern'd by Mr. Ludd^ which he after gratefully remem- bers as the place of his Education*. What his improvements here were, I know none liv- ing who can atteft, and it fhall not be my vanity to conjecture. Tho 3 perhaps he here imbib'd the inclinations to Antiquity from e Htft. Croyland. contin. p, 5-02. f H'tfl. jf Antiq. Oxon. f. ij-8. b. e Antiq. Canter b. Prrf. the The LIFE of Mr. SOMNER. the frefli memory of the late Mafter John Twine LL. B. who dying 1581. had been very inquifitive into former ages, had left a public monument of fuch knowledge h , and had made particular colle&tons of the Anti- quities of this City * : whofe fame in this part of learning might well incite an emulous youth, and raife that fpirit, which carried him at laft beyond this great example. How- ever, here was our Author initiated in the elements of Rome and Greece, among many rival wits, of whom let me mention only Peter Gunning fon of a Clergyman born at How in Kent, An. 1613. and bred at this School to the age of fifteen , when being re- markably ripe for the Univerfity^ he wasfent to Clare-Hall in Cambridge* , and left his fchool-fellow behind. Their acquaintance here contra&ed, fettled after into a facred friendfliip, and there hapned good oppor- tunities to confirm it, by Mr. Gunnings fre- quent vifits to this City, and by his Prefer- ment to a Prebend in this Church, An. 1660. But let the School be proud of this honour, h De rebus Albionlcis, &c. Lon4. 15*90. 8vo. * Somtter Avtiq. 'Cant. Pref. k Wood Athen. Oxon. Tom. 2. fag. 5-77. that The LIFE of Mr. SOMNER. that at the fame time it inftru&ed two of the greateft Men of their age and nation, one of the beft of Divines, and one of the beft of Antiquaries. When our young Scholar had made fuch prpgrefs in years, and in his ftudies, as qua- lified him for admiflion ta either of the two greater Schools of Learning $ then, either by the perfuafion of his friends, who in tender- nefs would keep him near themfelves, or by his own inclination to deal with ancient Re- cords, he was plac't as Clerk to his Father in the Ecclefiaftical Courts of that Diocefe. And when the ufual time of apprehending >j L c c *T was expird, he was loon prererrd to a cre- ditable office in thofe Courts by that true Judge of men, Arch-bifliop Laud^ to whom he after dedicated his firft labours for the public, and gratefully declares, that the chief inducement whereby he was animated to ap- pear in that kind, was his Grace's inter eft in the Author, as fubfifling in his place and pro- fejjlon, under God^ chiefly by his Grace s fa- vour and goodnefs 1 . What made that great it[. Cant. Ef. DeJ* .-* 8 The LIFE of Mr. SOMNER. Patron of letters to prefer him, was no doubt a fenfe of his happy Genius, comprehend ve of paft ages. For that wife difpoier of fta- tions in the Church, made it his care and his glory to felecl: fuch perfons, whofe abilities might beft fuit their relpe&ive employs. And being therefore to entruft the many antient Records of his Mefropolitical Church, [with fafe and clean hands,] he would provide a Man of that fpirit, who fhould with inte- grity preferve them, and with induftry apply them to the fervice of the Public 5 as feems modeftly acknowledged by our Author, when he commemorates his Grace s extraordinary care and coft for the collection of Antiqui- ties of all forts from all parts, crowned by Jingular piety and noblenefs in difpojing them to the good and fervice of the Publick. Be- lieve me (friend) however fome narrow en- vious fouls would detract from the merits of this glorious Prelate, and reprefent him fo, as if even his memory were to be martyr'd : yet no one Governour of the Church ever did greater things, or promoted greater men. M Antiq. Cant. Ep.. Ded. Where The LIFE of Mr. SOMNEIL Where fliall we find that fpirit to ferve the Public ? where that noble zeal for Books and Scholars ? Forgive me thefe expreffions : We of this place had in him the moft effectual Patron of our ftudies. He endow'd us with many admirable Manufcripts, and encouraged thofe that would fearch them. Not that we now want an acceffion of fuch treafure to our Bodley Archives. You will be pleas'd, I know, to hear that in one year elaps'd, we have expended fixteen hundred pounds in the trueft riches of the Eaft, in the purchafe of fuch Manufcripts as had been imported from thofe parts by two learned and judicious Men. Yet of thefe, the greateft part were in effect owing to the fame Prelate 5 who fupported the travels of Dr. Pocock* and enabled him to make that Return we now enjoy. But I haft to Mr. Somner^ who profecu- ted the duties of his office with prudence and integrity. An office (as he calls it) laud" able^ and enough honourable* . And when he had any hours relieved from the bujinefs of his calling* ', thofe he devoted to his be- n Pref. Dift. Saxon. Ibid. C loved io The LIFE of Mr. SOMNER. loved fearch into the myfteries of time: to which by the nature of his profefiion, he feemed the more determined $ he himfelf ob- ferving, that to the fludie of Antiquities his particular calling did in fome manner lead him*. He lov'd much, and much frequented the Cathedral fervice \ where after his devo- tions were paid, he had a new zeal for the honour of the Houfe, walking often in the Nave, and in the more reclufe parts, not in that idle and inadvertent pofture, nor with that common and trivial difcourfe, with which thofe open 'Temples are vulgarly pro- fan'd: but with a curious and obfervant eye, to diftinguifli the age of the buildings, ta fift the aflhes of the dead > and, in a word, to eternize the memory of things and Men. His vifits within the City were to find out the Anceftors, rather than the prefent inhabi- tants 3 and to know the genealogie of houfes, and walls, and duft. When he had leifure to refrefli himfelf in the Suburbs and the fields, it was not meerly for digeftion, and for air 5 but to furvey the Eritifh brtcks\ the p A)itiq. Cant. Pref. Antif. Canter, fag. 6. Roman The LIFE of Mr. SOMNER. n Roman ways 1 , the Danifh hills and the Saxcn Monafleries e and the Norman Churches v . At the digging up foundations, and other defcents into the bowels of the earth, he came often to furvey the Workmen 5 and to purchafe from them the treafure of Coins, Medals, and other buried reliques, of which he informs us, that many were found in al moft all farts of the City, fome of which came to his hands w . Whenever he relaxt his mind to any other recreation, it was to that of fhooting with the long bow, which no doubt he lov'd as much for the antiquity, as for the health and pleafure of that manly fport. He forgets not to give a worthy commen- dation of it) to ccnfefs himfelf grounded in a good opimon of Archery^ and not unwilling to vindicate the undervaluing of it with other Men. He recommends to the Reader a ju- dicious Elogte on this England's anttent glory by Mr. John Bingham in his Notes upon ALharfs Taffiicksy which becaufe the book was dear and fcarce^ he prefects a true copy of that whole paffage * . 1 Antiq. Canter, p. 21. f Ib. pag.itft. * K, fag. 46. * Ib. fag. 15-6, &c. w /. fag. 3. * Append, fcr Anti^ Canterb. fag, 476. C ^ This 12 The LIFE of Mr. SOMNER." This was his diverfion : but his more con- ftarit delight was in claffic Hiftonans, in old Manufcnpts, Leiger~books y Rolls and Re- cords. Which made him fo quickly known to be a man of ufe and fervice to his Coun- trey, that upon the great queftions in defcent of families, tenure of eftates, dedication of Churches, right of tithes, and all the hiftory of ufe and cuftom, he was confulted as a Druid or a Bard. While appeal to his judg- ment and deference to it fatisfied contending parties, and ftopt litigious fuits. This ho- nour and trouble done to him he modeftly owns in the Epilogue to his Countryme^ where he mentions the reconrfe 'which fome of them had to him for fatisfattion and in- j or mat ion y rejoicing to give content to them and others x . And truly I know no one part of humane learning, that can render any Man a more agreeable Companion, and a more beneficial friend, than this knowledge of places, times, and people. Whoever is thus accompliflit, can never want informa- tion to ftrangers, inftruction to neighbours, . & dttfiq. Cavterb. 2 and The LIFE of Mr. SOMNER^ 13 and a turn of diversion and profit to all fo- ciety. If he have prudence and good na- ture, he may be as Mr. Somner was, the O- racle of his Countrey. But the foul of our Author thought it too narrow a Province to refolve the doubts of private Men, and therefore would fatisfie the whole inquifitive world. Hence when he had digefted his elaborate collections made for the honour of that ancient Metropolis, and his good AffeBion to Antiquities , he dedi- cates them in a humble unaffected ftile to the Arch-bifhop of Canterbury , had them licensed by his Chaplain Guil. Bray y O$ob. 13. 1639. and the next year publifiit under this title. The Antiquities of Canterbury, or a furvey of that ancient City, with the Suburbs and Cathedral, containing principally matters of Antiquity in them all, &c. \Collefled chiefly from old Manufiripts , Lieger - Books , and other like Records, for the mofl part never as yet printed. Wherein (for better fatisf ac- tion to the Learned) the Manufcripts and Records of chiefefi confequence are faithfully exhibited^ all for the honour of that ancient Metropolis y and his good Affeflion to Anti- quities* 14. The LIFE of Mr. SOMNER. gutties. Sought out and publifhed by the Induftry and Good-will of WILLIAM SOMNER. Cic. In oratore nefcire quid antea quam natus fis accident , eft femper ejje puerum. London , Printed by J.L. 1640. 4*0. p. 516. Imprimatur, Gut I. Bray. Ex JEdibm Lambeth arts, Oftob. 13. 1639.] In his Preface with wit and learning he cele- brates the knowledge of ancient things, confefles his own thoughts and affections to lie that way, and owns the encouragement of worthy Fr tends y of whom he names Dr. Cafaubon, one of the- Prebendaries of the Church, and Thomas Denne Efq-^ This accurate performance is the more laudable, becaufe he could find no way, but what he made. There had indeed been two difcourfes of the like nature, SpofsHiftory of Canterbury, mention'd by Bale, and Collec- tions of the Antiquities of Canterbury, by John Twine, to which he refers in his Com- ment, de rebus Albionicis -, but both thefe were loft to the ufe of our Author*, and we do not hear they are yet recovered. So 7 Pref. to Antiq. Cant. as The LIFE of Mr. SOMNER. 15 as he had no one writer to tranfcribe or imi- . tate, but all the labour and glory were his own. And indeed this difficult honour is the reward of true Antiquaries 3 they tread in fteps unknown, and bring to light the hid- den things of paft ages. While moft other Authors write over again in new words : and do not difcover, but only reprefent. In this ufeful book, he forgets not to juf- tifie his own profeffion. He enquires into the inftitution of Notaries 2 : proves Ecclefiaftical Courts to be Courts of Record, &c a . He often fhews his duty and zeal to his Mother, the Church of England: defends her difci- pline, and juftifies her conftitution in his learned remarks on Church government 1 *, on Archbifliops c , on privilege of the Clergy d , on dedication of holy places e , inifchief of Impropriations f , and fuch other fubjeclrs, on which, by the beft of arguments, reafon and authority, he vindicates the eftablifhment which then began to fhake. And truly this juftice rnuft be done to Antiquities and the Church of England. None have been per- Prtf. toAntiq. Cant. p. 2X7. * Ib. p. 2%$. b Ib. p. . p. 223. " Ib. p. 25-0. lb. p. 5-10, f Ib. p. f8. 16 The LIFE of Mr. SOMNER. feet Mafters of the one, but what have been true Sons and fervants to the other. It was emi- nently fo in thofe great names, Camden, Sf>el~ man^ Twifden^ Mar/ham , Dugdale. And might I mention the living, I know many who by improvement in thefe ftudies, have in the fame way fettled their judgment, and im- prov'd their zeal. For indeed there is a na- tural reafon for this effect: a good caufe muft appear beft to thofe who look fartheft back upon it. Our Church cannot have more ge- nuine Sons than thofe, who by refearch into the primitive ftate of things, can refute the impudence of thofe abroad, who pretend to Antiquity 3 and can expofc the ignorance of thofe at home, who affect Innovation. Thefe Men can ftand m the ways, and fee the old paths , and are fit guides to thofe who are but of yefterday^ and know nothing. But of one providence which attended this work, I muft remind you. It was done in fuch a juncture as preferv'd the memorial of many Epitaphs, Infcriptions, and proper ob- fervations which otherwife had foon been loft to all fucceeding ages. For immediately be- gan that Rebellion and Sacrilege, which plun- dred The LIFE of Mr. SOMNER. 17 dred and defac't mod of the Cathedral Churches 3 and among other fad examples of popular phanatic fury, by the inftigation of Richard Culmer call'd in contempt Blew Dick (the fame I ,think, who procured an Or- der from the Houfe of Lords to Arch-bifhop Laud'vb the Tower Feb. 4. 1641. to have the Rectory of Cbartbam conferr'd on him, void by the death of Dr. Ifaac Bargrave Dean of Canterbury^ to which his Majefty by Letters, recommended that Loyal fufferer Mr. John Reading*) this ftately Cathedral was ftorm'd and pillag'd, the beautified win- dows were broke, the Tombs of Princes and Prelates were ravag'd, and every grace- ful ornament defpoil'd. So that had not Mr. Somner took a faithful tranfcript before the originals were thus eras'd, all had been loft ' in ignorance and oblivion. The like provi- dence has often watcht over and preferv'd ma- ny monuments of Antiquity, jiift before the fatal ruine of them. The days of defolation were coming on, when that excellent Anti- quary, Mr. John Leland obtained a commif- s Brcviat of Archbiihop Laud, p. 27. D fion i8 fion from Henry 8. An. Dom. 1533. to anthcrife him to have accefs to all the Li- braries of Cathedrals., Abbies, Priories, and all other places wherein Records and ancient writings were repos'd, for collecting and tran* fcribing whatever pertain'd to the hiftory of the Nation 5 . By virtue of this power he tranfmitted the knowledge of many Manu- fcripts, and other evidences which might have been difperft by the diflblutions which fol- lowed in the years 1536, and 1537. Thus the indefatigable Mr. Roger Dodfworth, juft. before the late deftruftive wars, tranfcrib'd moft of the Charters and other Manufcripts, then lying in St. Marie's tower in Tork, which tower was foon after blown up, and all thofe facred remains were mingled with the com- mon daft and aflies. Thus again the wor- thy Mr. Wtlltam Dugdale, (after honour'd and preferred for his perfection in thefe ftudies) fearch'd over all the Manufcript Books, ori- ginal Charters, old Rolls, and other evidences relating to the Cathedral of St. Paul in Lon- don, copied out the monumental Infcriptions, Athen. Oxon. Vol. i. />. 67. and ^ The LIFE 0f Afr. SOMNER. 19 and procured Sculptures of the whole Fabric, and all the parts of it, about the year 1 65 6. when that Mother Church was converted into a ftable, and ten years after to a heap of rub- bifh. So that had not that Antiquary drawn the image, as it .were, before the lois of the original, all had been forgot, but what tra- dition had moft imperfectly convey'd to us. [The fame Confervator of Remains made a ftrift Survey of the Cathedral Church of Pe- terborough, and took lively Draughts of the few Monuments and Infcriptions within that noble Fabrick, and lodg'd them in the Hands of the Lord Hatton 3 and they ftill remain an honour to that ancient Family, preferv'd in the Library at Kirby in Northampton/hire. And the Reverend Dr. Rob. Sanderfon, Rec- tor of Boothby Patnell, feeing the Defolations coming on Cathedral Churches, took,, or caufed to be taken, a fair Tranfcript of the Epitaphs and Infcriptions within the Walls of the Cathedral Church of Lincoln? to which See he was the more worthily preferr'd for having been the Guardian of the Treafures of it.] Thus are Antiquaries, if not infpir'd, yet guided by the counfel of Providence, to re- D i mit 20 The LIFE of Mr. SOM&ER! mit to pofterity the memorial of things paft, before their final period. It was thus our Author recorded that flourishing beauty of ho- linefs in that critical feafon $ which had it been omitted, the Church had foon been loft with- in its own walls. I cannot forbear to recommend to you that ingenious Poem, which on this occafion was wrote by Mr. Charles Fotherby, Grandfon; of a worthy Dean of that Church. It is in- fcrib'd In direptionem Metrofofttic* Redefine Chrifti Cantuarienfis, ad fidijjlmum & antique probitatis virum^ deque Clero Anghcano opt'tme meritum y Gulielmum Somnerum. Heu lapidiim venerandaftrues! fa corruis! Sacrilega has audent Jtc temerare manus ? Qu and the firft Epifcopal Church of the Saxon Chriftians : fo had they both, a new prece- dence in this honour : they were the firft whofe Antiquities were publifht to the world. And how few have been fince conformed to their ex- ample ? The hiftory of St. Paufs Cathedral in London from its foundation, &c. is an ab- folute performance". And the hiftory of the Church of Peterburg will be its everlafting monument . But befide thefe two, I know of none but mean attempts. The hiftorical account of the original, increafe, and prefent flate oj St. Peters , or the Abby Church of JVeflminfler^ is little more than a bundle of Epitaphs and Infcriptionsp. The remarkable " Wtll Dugd. hiftory of St. Paul's London, 165-8. fol. [ Since improved in a Second Edition corrected and enlarged by the Au- thor's own Hand. To which is prefix'd his life written by him- felf publifh'd by Edward Maynard, D. D. Reclor of ~Bo aldington in Northampton/Is ire y London for Jonah Bo-wyer, MDCCXVI./o/.J Hiftory of the Church of Peter If. by Symon Gunton, publilht by Symon Patrick D. D. Lond. 1686. fol. p Monument. Weflmon. by Henry Keep, Lond. 1683. 8w. [There is now publiflit the Hi- ftory and Antiquities of the Abby Church of St. Peter* slVeftminfter, containing an account of its ancient and modern Building, &c. by Mr. John Dart, in a vol. fol. 1713. 3 Ami- The LIFE of Mr. SOMNER. 25 Antiquities of the City of Exeter*, are a dry collection, full of miftakes. The hiflory of the Eifhopsand Bijho prick of IVinchefler^ with a definition of that City r , I prefume to be an imperfect work, and therefore not publifht. The brief account of the Monuments of the Ca- thedral of Norwich* was wrote for private life, and feems more to fear, than to deferve an Edition 1 . The ancient Rites and Monu- ments of the Monaftical and Cathedral Church of Durham u , is an ignorant and pitiful Legend. The hiflory of St. Cuthbert with the Antique ties of the ( fame ) Church of Durham, was drawn by a much better hand*, but the Edi- tion of it that has crept abroad is falfe and fpurious y . We expect the Author's own exact and neat original to be publiflit, with fit notes and illuftrations, by an ingenious perfon of fingular induftry, and great progrefs in thefe ftudies z . I hear of fome others, who are now defigning the Antiquities of Tork y q By Richard Izaac Efq; Lond. 1681. 8z>0. fel, MS. Athen. Oxon. Tom. i./>. 380. f By Sir Tho.Brown. ' Temfiits Preface to Browns Miicellan. u Publifht by J. Davis of Kid-welly, London 1672. iz. x By Robert Hcgge Fellow of C. C. C. 0*9*. y London 1663. 8z-^. * . Tanner of Queen's Coll. 26 The LIFE of Mr. SOMNER. | and Carlifle: all of character and abilities for fuch performance. How happily would it fpread the glory of the Engltfh Church and Nation, if among Divines addicted to thefe ftudies, fome one were prefer'd to a dignity in every Collegiate Church, on condition to employ his talent in the Hiftory and Antiqui- ties of that Body, of which he was a grateful and an ufeful Member ? [Let me only add, that a printed Copy of Mr. Somner's Antiquities of Canterbury is now in the hands of the Bifliop of Peterborough, with fome notes upon it chiefly relating to the Archdeacons of Canterbury. The fame perfonhad an 8zw.MS.of Mr.Sotnners col- lections towards this and his other works, which he lent to Dr. Hams for his gleanings of the hi- ftory vtKent^ and never received it back again 3 that being often the neglect of Undertakers, to borrow materials without returning of them.] Thus far lAt.Somner had fearcht only into the Latin writers, and fuch National Records, as had been penn'd fince the Norman conqueft, But there is a facred ambition in the /pirit of Learning, that will not let a man reft with- out new conquefts, and enlarg'd dominions. Efpecially in Antiquities, every acqueft heigh- tens The LIFE of Mr. SOMNER." 27 tens the defire, and the wifhes are thofe of the Eaftern Monarch, to have more than one old world to bring into fubje&ion. This ge- nerous emulation invited our Author to pro- ceed, and attain the Britifli and the Saxon tongues. To acquire the firft, there were rules of Grammar, explication of words, and other fufficient Memoirs, befide the living Dialed:, to guide a man of induftry and re- folution. But the Saxon language was extinct, and the monuments of it fo few and fo latent, that it required infinite courage and patience, to attempt and profecute the knowledge of it. To this trial he was encourag'd by the advice of his conftant friend Dr. Meric Cafaubon, who gives this account of it : that while he was lamenting the obfcure remains of that tongue^ 'it happily fell out y that he grew acquainted with Mr. Somner, born of a creditable family^ one of primitive probity and fimplicity. Be- ing extremely taken with his fagacious wit> andobferving his wonder ful induftry in fe arch- ing for the Antiquities of his Country and much approving his/harp and folid judgment ', temper d with the great eft modefty 5 he began earnejily to perfuade and excite him to the E * ftudy The LIFE of Mr. SOMNER. ftudy of the Saxon tongue, as a labour worthy his patient and ingenious fpirit, promifmg his own ajjiftance if he were able to give any y and to furnijh him with any materials, that might aid and promote thofe ftudies*. Mr. Somner, whofe humility of mind made him obfequious to the counfel of his friends, and tractable to any motion of doing good, com- plied with the advice of that Reverend Perfon, confirm'd by his own judicious thoughts, be- ing fenfible of the truth of what Sir Henry Spelman had found by his own experience, that the knowledge of the Saxon language was fo far neceffary, as without it the Antiqui- ties of England be either not difcoverd, or at leaft imperfectly known b . When Mr. Somner began this talk, give me leave to reprefent the difficulties he labour'd under. When the Saxons had made the Bri- tains ftrangers in their own land, then the lan- guage which the Conquerors brought with them, foon grew into Contempt among them- felves. Even fo early as the year <5jz. Many out of this I/land were fent to the Monafteries e frattat. ds Liftg. Saxon, p. 140. b Somne ri Diftion. Sa xon* E-f. Ded. Z- Of The LIFE of Mr. SOMNER. 29 of France for Education, and to bring back the manners and language of thofe parts*. In the reign of Edward the Confeffor, by the great refort of Normans to his Court, the whole IJland began to lofe their Englifh rites, and to imitate the manners of the Franks ^ especially it wa? efteemd a piece of breeding for all the leffer fort to fpeak the Gallic Idiom y and to defp'ife the language and cuftoms of their own Ceuntry*. This inglorious affectation is con- fefs'd by an Hiftorian who liv'd in that age. It lookt like an omen of being to be fliortly conquer'd by that nation, of whofe tongue and fafliions they were fo induftrioufly fond. The event was fo. Three and twenty years after came in the Norman Lords, who threat- ned an extirpation to that language of which the Natives began to be aftiam'd. For thefe new Mafters hated the Englifli, and fo much abhorfd their Idiom^ that the Laws were all admimftredin theftznthtongue, the very chil- dren in Schools were kept from learning to read their Mother language -, and were inftruEl- ed only in the Norman $ the Engliflh manner c Mon. Angl Tom. i . p. 89. " Hifo ".Ingutyhi f, fa.jub an. 1043. of go The LIFE of Mr. SOMNER? of writing was omitted*. The ignominious marks of a conquered people. The fame Author from his own experience does again lament, that the Saxon hand which had been us din all writings grew into difgrace, and the French hand, becaufe it was more legible and morepleajing to the eyes, did every where obtain* , fo as in the very next reign, the Saxon letters were fo obfolete andfo unknown, that but few of the elder people were able to read them *. Nay in the year 1005. Wulflan Bifhop of Worcefler was depos'd, when fcarce any other thing was objected againft him, but that he was an old Englifh Idiot, who did not under ^ fland the French tongue h . It is true, the next fucceflbr Henry the firft, gave a Charter to William Archbifhop of Canterbury, confirm- ing to him the poffeflions of his See, in the Saxon language and characters \ This was but a fingle inftance, and perhaps done to o- blige his Queen of the Saxon line, and to in- gratiate himfelf with the #///& fubjeds, who might hope by this marriage they had a bet- ter title inhim. And therefore it is amiftake e !b./. 71. /*. 1066. f Ib./>.85-. *Ib.;>. 98. /*. 1091. b Mat. Par, fub an, * //. WhartQn Auttar. Hijior. Dogmat.f. 388. in The LIFE of Mr. SOMNER' in the learned Mabillon*, andfome other Au- thors, who aflert the Saxon way of writing was loft from the very time of the Norman conqueft. It was with the Saxon characters as with figns of the Crofs in public Deeds, which were for the moft part changed into the Norman way of feals and fubfcriptions, yet fome Charters were with the old form of Crofles. The Saxon Dialect obtained no doubt in Country Vills, with fome borrowed variation from the French, and fome remains of it did intermix with the Court language. But the Barons and Knights who were moft of them Norman, were fo afraid of their children's talking the old En- gltfh) that in the reign of Henry the fecond, 7%ey fent them over into France for education, to wear off the barbaroufhefs of the native tongue 1 . At the beginning of the reign of Edward the third, Robert Holcot a Domini- can, confefles, there was no inftitution of chil- dren in the old Englifh, but they firfi learn d the French, and from the French the Latin tongue, which he obferves to have been a prac- tice introduced by William the Conqueror, and k De re diplomat, p. fi. * Gervaf. Ttlbttr. de off is Jmffr. MS. i Bib. Bod, 2 tO 32 The LIFE of Mr. SOMBER. to have ever fine e obtain* d m . Tho' from the firft decline of the Barons, and advance of the Commons who were more of Englifb blood, the Country language grew more in- to requeft} till at laft the Commons in Par- liament at Wefim'mfter the 3 6. of Edw. the third, (hewed fo much of the Englifh fpirit, a* to reprefent to the King the great mifchiefs which would happen to divers of the Realm, if that the Laws were pleaded, Jhewed, and judged in the French tongue, which is much unknown in the faid Realm, &c. Upon which it was ordain d and eftablifhed, that all Pleas, &c. Jhould be pleaded, Jhewed and defended, anjwered, debated, and judg- ed m the Englifh tongue, &c n . Yet this law did by no means reftore the Saxon, either in the Alphabet or in the prime Dialed: : It on- ly redeemed the kingdom from an old token of fubjeclion, and did honour to the then compound language, much vitiated by im- ported words and phrafes. And ftill there ieem'd a dafh of the Norman fpirit, which m Rob. Holcot Left. z. fuper fapient. n Pulton Stat. 36. Edward $. p. 119. If }. The LIFE of Mr. SOMNER. 33 by the fame law provided that attfuch Pleas Jhould le entred and enroll* d in the Latin. If there were any conveyance of the true Saxon tongue, it was in the Monafteries, but in thofe only which were founded before the Norman Conqueft $ for in fuch, intereft did oblige them to underftand the language of their original Charters. It was for this rea- fan, that in the Abby of Cropland \ a Tutor was appointed to teach Saxon to fome of the younger brethren, that in their old age they might be more fit to alledge the Records of their Monaftery againfl their adverfartes . And it was no doubt for the like reafon, that in the Abby of Taviftock, which had a Saxon Founder about 69 1 . there were folemn Lec- tures in the Saxon tongue , even to the time of our Fathers, that the knowledge of that lan- guage might not fail, as it has fence well nigh done P. So that had Mr. Somner liv'd before, or in the age of reformation, the way of attain* ment had been lefs difficult. Or had he been referv'dto thefe lower times, he had met with Ingulf hi Hiftor. p. 98. * Cantden Britart. in Dannton. F more The LIFE of Mr. SOMNER^ more of help and conduit. Forwehavefince had a good part of the Scriptures more corre&ly publifht, with excellent notes i. We have had hiftories moft correft 1 . But what above all facilitates the progrefs and perfe&i- on of learners 5 We have had methodical and accurate Inftitutiom of Grammar by the learn- ed Dr. George Hicks, incomparably fkill'd in the Antiquities of our Church and Nation, j^who after a refolute Deprivation was per- fuaded by the friends of his Perfon, to carry thofe ftudies into a more elaborate work inti- tledj Linguamm vett. Septentrtonahum Thefau- rus Grammatico-Criticus & Arch 141 . From The LIFE of Mr. SOMNER^ From his time of engaging in the memo- rials of Canterbury ^ he laid the foundation of a larger defign, to colled all the remains of the ftate of the whole County, for a juft and perfed Hiftory of the Antiquities of Kent. This projeded labour he owns to have taken on him, in the kind Epilogue to his Countrymen. If by your good acceptance of thefe my labours for the City, I may re- ceive encouragement to proceed in my endea- vours j it is in my thoughts, by God's affif- tance , in convenient time^ to dofomewhat tn like kind for you in the Country z . And to confirm the truth and honefty of thefe inten- tions, An account of what Saints had the de~ die at ton of Parochial Churches within that Diocefs he leaves with them in pawn, and as a pledge of thofe his future endeavours^ for their farther content hereafter, if God per- mit. He omitted no time, and fpar'd no pains, to prepare this work without, and to make it fit in the field, that he might after- wards build the houfe: a houfe that was not to be built in a day, but the foundations to be dug deep, and the materials to be fetcht * Ant'ttf. Canterb* Append, p. TO^. 2 from The LIFE of Mr. SOMNEIL 39 from afar, with great contrivance, great pa>- tience, and great expence. But he made a gradual progrefs, and in the Preface to his Traffi of QaveHuM, which he wrote twelve years before the publication 5 i. e. An. 164$. He confefles it was now full eighteen (I think it fhould be eight) years, fmce by folemn promife he became indebted to his Country^ men, upon their good acceptance of certain of his labours in behalf of their City, to pro- ceed to the fame or fome other fitch like un- dertaking for the County : a thing which as he then really intended, fo had he not fmce wanted that encouragement for it from the better forty which he could expect. But (fays he) being foon after (proh dolor!) overtaken by that impetuous Jlorm of civil war, not yet quite blown over - y / was neceffltated to betake my felf to other thoughts. This was a juft excufe, and he had the fame reafon to beg their longer patience. For he refolv'd the conception fliould be an Elephant before its birth, therefore he was ftill encreafing his plen- tiful ftore, and ftill digefting and difpofing the order of it. In the mean time he hop d not only to be excused of his Countrymen for (what 40 The LIFE of Mr. SOMNER. (what had not elfe been hitherto delay d) his County "undertaking, but alfo to obtain of them yet farther refpite y in hope of a better oppor- tunity to difcharge that debt. In the year 1659. the time of ptiblifliing his Saxon Dic- tionary y he again renewed his promife, that when that work was finifht, he would adorn and complete the Antiquities of Kent *. [[And in that laborious work he often renews the mention of his good defignj as in the word Abbandune idem forfan ac Clovefho olim De hoc autem amplius impofterum inter An- tiquitates Cantianas a nobis (hoc opere tandem abfoluto) Deo volente adornandas. And fub voce DEN faltus Cantianus ille olim incubus, porcis glande fagmandis erat pr. 1 84. 267. lingfleet Ong. Britan. ch. J*. p. 312. G z pofe. 44 The LIFE of Mr. SOMNER. pofe. The judicious Mr. Somner in his Roman Ports and Forts labours hard to prove that new Romney was the ancient Portus Lemanm. And indeed it is not unlikely, that the river Rother, which anciently ran along under the Hills, and difembogucl into the Sea, near Stutfal Caftle under Limne-Hill, where was the ancient Portm Lemanus, might in courfe of time, by the terrible alterations which the Sea made in and about that large tract of ground called Romney Marfh* came to run out into the Sea firft at Old and afterwards at New Romney. And I agree with Somner in believing that here might be then a large and commodious harbour, but this will not make good his Notion, that the Old Portus Lemanus was at New Romney. I agree with him alfo, that this river Rother was anciently called Limene^ as it is in the grant of Ethel- bert Son of Wightred King of Kent about the year 721. as alfo in another of King Eadbrigbt dated 741. and in the Saxon An- nals An. 8^3. And I doubt not but that this is the river which in Archbifhop Plef- mund's Grant, and which is cited by Mr. Somner, is called Rumen Ea. And he fhews 2 from The LIFE of Mr. SOMNER. 45 from a Charter of King Oft a about the year 774. that the Sea flow'd in between Liddand Romney^ with a wide and fpacious Opening into the mouth of the Uimene. And from another Charter of King Eadbright to the Church of Canterbury , he makes it probable, that the mouth of the river LJmen or the toother was then near to New Romney /] Had he liv'd to fupply and methodize the whole, how would he have corre&ed the remarks of all that went before, and fuperfeded the en- deavours of moft that could follow after? For I believe it is your opinion, Sir, as well as mine, that what Lambard and Camden did before, might admit of emendations, and considerable additions. And what Mr. Kil~ burn and Mr. Pkilpot did fince, was all mo- dern and fuperficial. I wonder thefe two laft, who were contemporary with our Author, fliould feem to have had no recourfe to him, nor any knowledge of his more complete de- fign; which could be only owing to their own pride, or want of addrefs to an eafie and communicative man. Mr. Phtlpot did engagage to write another difcourfe of the [ e And Mr. Somner AW to fifply, &c. as f- 37.] Porn The LIFE of Mr. SOJMNERJ Ports in Kent, fpeaking lefs of the Cinque Ports, becaufe he intended to publifh a par- ticular Treatife relating folely to their im- munities, and their juft right to take cogm- fance of the fifhery at Yarmouth f . This faith die writer might have kept, for he liv'd to the year 1684. but there is no dependance on a man who could afford to rob his own Father of the credit of that book. For the / > //- lare Cantianum, or Kent farveyed and illuf- trated republifht, London , 1659. and 1664. fol. under the name of Thomas Philpot^ is laid to have been done by John Philpot the Father, born at Folkftone, Somerfet Herald at Arms, who died i64j s . Let this only be obferv'd for the honour of Kent, that while other Counties (and but few of them) have met with fingle pens to give the Hiftory and de&ription of them $ ours of Kent has had no let than four Writers to celebrate the glo- ries of it, Lambard, Somner, Ktlburn, Phd- pot. QAnd imce there has been publifht (both from Collections and intimate views) THE H i ST o R Y of K E N T in five Parts 5 containing, f ViUtre Cantlanum. p. 14. fol. An. 1664. e Albert. Ox on. Vol. i. f. 102. & Vol. 2 f. 719. I. An The LIFE of Mr. SOMNER. 47 I. An exact Topography or Defcription of the County. II. The civil Hiftory of Kent. III.The ecclefiaftical Hiftory of Kent. IV. The Hiftory of the Royal Navy ^England. V.The natural Hiftory of Kent. By JOHN HARRIS. D> and F. R. S. [Prebendary of Rochefter] London, MDCCXIX. fol. of which we have only the firft Volume. It had been the greater honour to this capital County if a Native of it , Dr. Robert Plot (born at Borden near Sittmgburn, and edu-< cated in Rye School under ray Mafter Paris]) had finifht his defign of writing the natural Hiftory of Kent, after the manner that he did thofe of Oxford/hire and Stafford/hire. And for this (faith Dr. Harris} as I am told by fome of his family, he had a Patent to be one of the Kings at Arms, and another to be Regifter of the Heralds Office - y thefe were great Encouragements, but he died before he made any Progrefs in it. All that I had the favour of obtaining from his Papers of Col- lections, being only a Catalogue of fome Ma- nufcripts relating to Kent, and a difcourfe up- on the Roman Ways in this County h .] Let me obferve farther in refpect and duty to my h Dr. Harris Prtf. to ////?. c/Kent./o//V. />, u. x native 48 The LIFE of Mr. SOMNER. T ** native Town, that what Mr. Somner aflerts of Dover ^ being the place where Julius Ctefar in- tended and attempted to arrive, is from Aftro- nomical computation, fully demonftrated by the very ingenious Mr. E. Halley^ who proves the year, the day, the time of day, and place, the Downs , where he made his firft defcent*. Let not pofterity cenfure Mr. Somner for this abortive defign on the Antiquities oj Kent^ nor impute it to flothfulnefs, or change of mind, that he did not complete the model he had fo long fram'd. It is a common infirmi- ty of thofe who write nothing, to reflect on the delay of any one expe&ed work. As if it were no more to do, than to talk of be- ing done. Of the fatigues in a great per- formance, none are fenfible but thofe who are engag'd in them. Thought and reflections, fearches and reviews, remarks and collations, method and ftile, and ten thoufand cares, all multiplied on the men of greater fidelity and caution , retard the Author , and protract his work : efpecially in matters of Antiquity, to be in hafte does make the blinder birth. For thofe writers cannot at one profpect get . Tranfaft. for March, &c. 1691. a view The LIFE of Mr. SOMNER, a view of their defign. Like the new im- provement of Perfpe&ive , the fcene opens wider by longer looking on : that is, the bu- finefs multiplies on the undertaker's hand, and the burden encreafes on the weary Bearer. It is this has made more Antiquaries fail of their propofed attempts, than any other fort of writers. Mr. John Leland the firft reitorer fef Englifh Antiquities after the age of print- ing, undertook fo immenfe a taik, that the very thoughts of completing, did (as 'tts faid) diftratt him k . So as after the publifhing fome fliort and trivial eflays, he left his four Vo- lumes of collections, foL his five Volumes of Itinerary , 4 to . and fome other monuments of induftry in Manufcript, for the moft part in- digefted without leifure, or without patience to complete them. The next Antiquary Mr. Robert Talbot^ had a great genius and an equal diligence, to gather and preferve the fragments of time : but defigning Annotations on the lit" nerary of Antonine - y and a Colle&ion of an- cient Charters, Sec. he died with his thoughts and his papers in conftifion. With what te- dious application and gradual advances, did k Wood Atken. Qxo*. Vol. i.f. 67. H the The LIFE of Mr. SOMNER, the great Camclen conceive and nourifli his fam'd Britannia! Had his life and ftrength endur'd, no doubt he had (till been altering and augmenting the glorious work. But he fell, and left unfiniflht this and fome other of his own, and the world's" difappointed hopes 1 , Mr. Roger Dodfworth fill'd above fixty Vo- lumes with the moft elaborate collections $ but was flill hunting for more, without the con- tent of difpofing what he had. And there- fore excepting the Charters inferted in the two Volumes of Monafitcon^ which coft him lit- tle other pains than finding, and remitting to the prefs; he left nothing but infinite mate- rials for thofe who would apply them better. SAxSitnaindsD y EweS) a great valuer of Hiftory and Coins, had laid a fcheme for the Anti* quities and ft ate of Britain, wherein he pre- tends he would difcover errors in every page of Camden m ; but by death he fell from his great and vain attempt. Mr. T. Allen^ Mr. B. Twine y Mr. /^. Fulman, and many other Antiquaries of this place, had the fame am- bition to collect, and the fame misfortune 1 GuL Camd. Vita a f. Smith. S. T. P. f. /tf. m Ep'tjl. of Archbifliop UJher. p. 496. i never The LIFE of Mr. SOMNER. 51 never to methodize or publifli. But befide thefe inftances of general defigns, the parti- cular efforts on a Hiftory of fingle Counties, (like Mr. Sonmers on Kent) have dropt into the graves of their intended Authors. Mr. Thomas Rifdon drew up a Survey or Choro- graphical Defcription oj Devon/hire - y but had not time to make the Edition of it n . Sir Simonds D'Ewes attempted the Topography of Suffolk . Sir EdwardB/Jhepromisd the An- tiquities of the County of Surry P. Sir Mat- thew Hale made great collections relating to the County of Glocefter^ but would not frame them into any difpofition for the prefs q . Cap- tain Silas Taylor fpent fome years in picking up various remarks on the County of Here- ford^ but caft them into no juft difcourfe r . Mr. Sampfon Erdefwick wrote a fhort view of Staffordshire^ containing the Antiquities of the faid County $ but could carry it no farther than MS. notes 1 ". And Mr. Randal Gather al^ got voluminous collections that refpe&ed this County of Oxford 1 ^ but never could caft them Atben. Oxon. Vol. T. p. f 16. R. Dotfwortb MS. Vol. 38. fol. 39. p fPoo^s Atken. Oxon. Vol. a. p. 484. q Life of Sir AT. Hale by Dr. gurnet. r Atben. Oxon. Vol. i . p. 46 f. f Ib. Vol. i. p. J7f . Ib. Vol. i.f. 731, H 2 into y*y The LIFE of Mr. SOMNER. into a regular Hiftory, and took fo little cate to repofite his MSS. that to all my enquiries, they are now loft. Not to mention the re- Frted defisns of later men. Dr. Nat. John" O * *J flon on the Weft-riding of Torkfhire. John Aubrey Efcjj on Wtltfhire. Walter Chetwmd Efq$ on Stafford/hire , to whofe labours, if ftili depending, I wifli refolution and fuccefs. Forgive me this digreflion, and think it lefs impertinent, becaufe it ferves to juftifie the memory of our Author, when fo many others have fallen mort of the like intentions: and the nature of fuch attempts is more apt to abforb and difcourage the aggreflbrs. In the mean time, we fliould better accept and efteem this remnant that is fav'd of the Antiquities of Kent^ and hang up the little plank, as more facred than the whole flhip. But it is a more juft Apology for Mr. Som ner, that he did not devote his whole time to this ineffe&ual labour j but was all along em- ploy 'd in fome other duties to the public. He found it neceflary, not only to know the places and perfons, but the cuftoms and tenures of his Country 3 of which none fo c- minent, and fo peculiar, as that of Gavelkind. This The LIFE of Mr. SOMNER. 53 This the Lawyers informed him to be the local cuftom of Kent) whereby if the Anteceflpr died inceftate, all the Heirs male did equally fhare in the inheritance of lands, which had not been held/;* cap'tte wo* dtfgavett d by fpe- cial Aft of Parliament. But this account would not fatisfie fo inquifitive a mind as that of Mr. Somntr, for his aim was always to nnderftand properties and nature, more than names : "according to that end propounded by himfelf in all his refearches y which was to know things, not fo much in their prefent as primitive ftate^ more in their caufes than ef- Jetfs". And to this enquiry he was the more induc'd , that he might fatisfie his Country- men^ and gain excuje for delay of his County- undertaking. For the more eafee pur chafing whereof that they and others might perceive he had not been altogether idle^ he pitch' d in his thoughts upon the Kentifh cuftom of Gavelkind, and to fome more than vulgar difcourfe thereof \ as a fpecimen and earnefl of his farther intentions for the County. This difcourfe he divided into five heads, i. The true Etymologte and derivation of the name, Treatifeof Gavelkkid, Pref. i where The LIFE of Mr. SOMNER. where he refutes the continued fancy of Lam - bard, Coke^ Camden, Veftegan, Cowel, Spel- man, Doddeiidge, and many other Lawyers and Antiquaries, who would derive it from the Saxon ^ip-calcyn give to all kindred, or to all alike. Whereas he proves the name is by no means borrowed from the partible nature of the land ; but from gapl or avel a tribute or cuftomary rent, and ^ecyn&e na- ture, fort or kind-, implying it to be land not held in fee, as Knigbtsfervice ; but chargeable with fuch rents as made it foe age tenure. 2. He enquires into the nature of Gavelkind~ land in foint of partition, and proves it was neither from the name, nor bare nature of the land 3 but partly from the nature of the land and partly from a general cuftom extended thro 3 the whole County in fuch cenfual land. 3 . He fearches into the An- tiquity of Gavelkind-cu&om (in point efpecially of partition) and why more general in Kent than elfewhere. 4. Whether Gavelkind be proper- ly a tenure or cuftom? where he treats with incomparable learning of all feudatory right, and all menial fervice. j. Whether before the ftatute of Wtlh (31, & 34, Henry 8.) GavelkmdAixA in Kent were devi&ble or not ? which The LIFE of Mr. SOMNER. 5$ which he refolves in the negative, and an- fwers all arguments of thofe who hold the contrary. All thefe points are difcuft with that variety of knowledge, and that ingenuity of fpirit, as will make the Author and the book valued, while Learning and Law are va- lued. At the end is an Appendix of fuch Muni- ments, Charters, and other Efcripts, as were quoted in the precedent difcourfe. Thisfubject led him thro' a long courfe of Common Law, and thro 7 the fenfe of very many Statutes: for which he was afraid he might be thought too bold with the men of that robe, too much medling with matters of their peculiar fcience $ but hopes they would excufe him, being one that honour d their projeffion , and had an intent only in his way to do them fervice y and their profejjion right , by holding forth to pub" lick view fome Antiquities^ tending at once to the fatisf action of the one , and illuftration of the other. What efteem this treadle bears a- mongmen of that honourable facultie, I might fliggeft by this familiar hint. I fought in vain for the book among many Libraries, till it was lent me by a worthy friend eminent in that profeffion. I hope in a fhort time a new Edition $6 The LIFE of Mr. SOMNER. Edition may fpread it into more hands. But let me give you a farther hiftory of it. When Mr. Somner had drawn all his thoughts and authorities into a juft difcourfe, he fent his papers to his judicious friend ArchbifhopUfher^ who returned them with this teftimony : / have perusdthis learned treat ife of Gavelkind, and judge it very fa to be publifhed. Ja. Arma- chanus. Apr. 7. 1647*. This approbation of fo great and good ^ man, was the beft Li- cenfe that could be askt, or given to the book. But there were two reafons that hindred the publication. Firft, the diftrefs and perfecuti- on of the writer, which might take from him the appetite and ability of printing. Secondly, the ignorance and aflfedation of thofe times, that hated all Antiquity Ecclefiaftical and Civil 5 and doted on a new Gofpel,and newLaws : fo that till the nation was difpoflefs'd of this fpirit, it was not fit to caft the pearl before them. The Au- thor laid it up in his own Archives, and impart- ed it only t<* the perufal of fome peculiar friends. Dr. M> Cafaubon had feen and read it, and in the year 1 650. told the world, that his friend bad wrote a juft treatife in Englifli, upon that 1 Treat.-of Gavelkind, Append. />, IT 6. moft The LIFE of Mr. SOAINER. moft famous and moft ancient cuflom m Kent, calldGavelk'mdj &c?. The Author himfelf upon occafion own'd the hidden treafure, and pointed to it once or more in his notes to the words of Lipjius, An. idjo*. and very often in his GloJJar^jy An. itfji*. But when Mo-- narchy, Epifcopacy, and Learning were reftor'd, then the Author brought forth the things new and old, when the eyes of men were opened. Yet ftill his own mcdefty would have longer conceal'd the talent, if the importunity of friends had not prevail'd. For he confefles An. 1660. That the Preface and Treatife had be en written more than twelve years agon^ and had lam by the Author ever fence ^ and they had not now come forth but upon the en- couragement of fome worthy and judicious friends. At their requeft it appear'd abroad with this title. Atreattfc ofGavelk'md, both name andthwg^ fhewing the true Etymology and derivation of the one, the nature ', anti- quity, and original of the other JVith fandry emergent obftrvations, both pleafant and pro- y Cafanb. de L'tg. Sax. p. 141. ' JVff/tf ad verb. Liff. Ap- pend. ad Cafaub. de Ling. Sax. p. l6. 8 doff, ad X. Script, in vocibus Fcodiim, Allodium, &c I faable The LIFE of Mr. SOMNER. fa able to be known of Kentifh men and others, efpe dally fuch as are fiudious either of the an- dent cufiom, or the common Law of this king- dom^ by a Wellwifher to both^ William Somner. London^ 1660 4'. In this elaborate work, the Author is moft happy in the Etymology and defcription of Gavelkind^ and Socage^ the Norman's Fief de Haubert^ and fief de Rotuner^ of the Saxon's Boclanb and Folclanb- of the Feudifts Allodium and Eeudum^ &c. wherein he is fin- gular and diflenting from all precedent writers, with fuch a vein of modefty, and fuch a ftrength of reafon and authority, as has yet fatisfied all Readers, and filenc'd all Critics. He has farther explained all the different te- nures In capite 5 Kntghts-fervice , Fee-farm ; Frank- almoign - y Divine- fervice Rfcuage cer- tain-, Bur gage ; Vdlenage^ &c. with all lands denominated from their fervice, as Work-land ', Bo c- land j Aver-land-, Drof-land-^ Swilling* land 5 Mol-land) Ber-land -, M ; are-land\ Terra- fufanna^ For-land; Board-land-^ Scrud-land' y Over -land, Monday-land^ Sec. Wherein he fup- plies and corrects Littleton^ and- his oraculom Commentator: He fills up the defects of Spel- The LIFE of Mr. SOMNER. man, and prevents the induftry of Gloflbgra- phers, thatflhould follow after. And therefore the diligent Du-Frefne^ in explication of moft of thefe terms, barely tranilates the Engliflj of this book, and faithfully refers to it b . By this one performance he has indeed fliew'd himfelf an abfolute Civilian, and a complete Common Lawyer 5 ftating all te- nures and methods of conveyance with exqui* fite judgment 5 and examining the Writ dera- tionabdt parte bonorum^ with that nice hand, as prov'd him Mafter of more than he pro- feft. And in many of thefe difputes he could have been a more final Arbiter, but that his habitual modefty reftrain'd him 3 So that when many other founts of Common Law did offer themfelves to his dijcourfe^ yet being out of his profeffion^ he would not wade or engage any farther in the argument : left he fhould be cen* fnfd of a mind to thruft his fickle into another man's harvejl*. To obtain this knowledge in the Laws of his Country, he had trac'd all the dreams of juitice to their fountain head} He had fearcht b Du-Frcfne Gloff. Lat. ?' vodkas Gavelkind, Gavelman, &c. c Trcatitc of Gavel kind, />. 170. I i back 60 The LIFE of Mr. SOMNER. back into all the Inftitutions of the Norman and the Saxon ages. And having firft dili- gently enquir'd into the Laws of Henry the firft, and adorn'd them with Notes, and a Glojfary^ as was before obferv'd 3 he went back farther, and reviewed all the policy of the Saxon Kings : a copy of whofe Laws had been firft gathered up by Mr. Laurence No-well, (whom Mr. Cam Jen d calls the Reviver of the Saxon language) in the year 1567. who going then beyond the feas committed them to his pu- pil in thofe ftudies, Mr. William Lambard, defiring him to tranflate them into Latin, and to make them publick e . Which was done the following year under the title of APXAIONOMTA, Jive de prifcis Anglorum Legibus^ &c. Lon- dini, 1568. 4*. reprinted fol. at Cambridge , 1644. [_Laurence Nowell was a moft dili- gent fearcher into venerable Antiquity, a righp learned Clerk alfo in the Saxon language, arfd was one of the firft that recalled the ftufly thereof, when he abode in Lmcolns-Inn, in the Lodgings of one of his brethren, who was a Couniellor of Note there 3 he was a Tutor in thofe ftudies to Will. Lambard the 4 Britan. in Danmoniis* ' Lambardi Epiftola ad Arehaionsm. i Anti- The LIFE of Mr. SOMNER. 61 Antiquary of Kent, who was efteemed the fe- condbeftinthem, and made ufe of his afliftance and Notes when he compiled his book De prif- cis Anglorum Legibus. He, Laurence Nowell, hath written l^ocubulariium Saxonicum , or a Saxon Englifh Dictionary, written in 1657. 'tis a MS. in 4'. and was fometime in the hands of the Learned Selden y but now in Bodleys Library. Franc. Junius, who maketh honour- able mention of the Author,, had a Copy of it, and Will. Somner the Antiquary of Can- terbury made ufe of the Original, when he compiled his Saxon Dictionary*. Upon re- citing this account given by Mr. Wood^ it may not be improper to make a few Addi- tions to it, he conceives him to have been born at Great Meerley in Lancajhire^ but at his Ordination he was enter'd as born at Wkalley in that County L,aurentius Nowell moram trahens tf^/Sutton Colfield oriundus apud Whalley in com. Lane, ordinatur Dia~ conus 9. Nov. 1550. Reg. Ridley Ep. Lond. Mr. Wood tells us that in 1543. he was li- cenfed to proceed in Arts, and about thattime being in facred Orders became Mafter of the ' A Wood Atbe*. Oxon. Vol. i. Col. 146. Free- 62 The LIFE of Mr. SOMNER. Free -School at Sutton Col field in Warwickfhire, where he continued for fome years. But Mr. Dugdale had before inform'd us, in his/^zr- wickfhire^ p. 670. " that the Grammar School of SuttonColjieldthzn lately founded tyJohnHar- man Bifhop of Exeter was confer'd on Laurence Nowell.Ottob. i. 38//.VIII. ij47- Soon af- ter his fettlement the Corporation took great ex- ceptions againft him for neglecting of his School, and exhibited Articles againft him in the Chan- cery. So that accepting of his Arrears, and a gratuity of ten pounds, he refigned in the i . of Ed. VI. So that his ftay in this place was not much more than a year." And yet we find upon much better authority he ftaid longer by fome years 3 and that the exceptions taken againft him were rather for his Zeal to the Reformation, than for any neglect of his School $ and therefore he appealed to the King in Council, and fo well juftified his character, as to obtain Letters to the Corporation to give him no further diftur- bance, i jjo. 18. Fehr. 4 Ed. VI. A let- ter to the Warden and Fellows of the King's town of Sutton not to remove Laurence Nowell from being Schoolmafter of that place. Coun- cil Book of Ed. VI. MS. But to return to z Mr. The LIFE of Mr. SoMN-fift. 63 Mr. Somner upon his perufal of Mr. LambarcFs work,]] he found, ^#* / *&? Latin verfion there was a polite and elaborate Jlile^ too much affefted, that gave little or no help to the Rea- der in underftanding the Original Saxons. Which opinion was after confirm'd by that ftupendious Mafter of the Northern tongues, Fr. Juntas, who fpeaking of Mr. Lambard's publifhing the Laws of the Englifh Saxon Kings y tranjlated by himfelf, tells us that he better approves the ancient verfion by Jo. Brompton, and advifes all that love the genuine Monu- ments of Antiquity , rather to embrace the old interpretation of a rough and impolite age^ than rafhly adhere to the modern and more refiridTranflator^. The fame cenfure was continued by the Annotators on the Life of Alfred*, and by the laft Editor of the Sax- on Chronicle k . Upon this principle Mr. Somner did believe, that fuch an elegant and paraphraftic way of rendring old Records, was too much like paint on the face of a wrink- led matron, or a cap and feather upon gray hairs. He refolv'd to take off the difguife, B Somneri Pr.rfaf. ad, Saxon. Difl. h Junii Catal. Lib. ad Evang. Goth. ' JEAfredi vita /. (56. k . Giifoa Pra-f. and 64 The LIFE of Mr. SOMNER. and reprefent the true venerable afpeftj by a new verjion flam and nigh to literal, for the benefit of all who were ftudiom of the Saxon tongue > to which he added fome Laws that were omitted in that collection by Mr. Lam- bard 1 . And defigning farther, that fuch Gen- tlemen who would read only their mother tongue, might not be ignorant of thefe fun- damental conftitutions, he turn'd them all to modern Etiglifh, and has left the Tranfcript thus entitled, The ancient Saxon Laws tranf- lated into Englifh. Neither of thefe verfions has yet feen the light, tho' moft worthy of it. The firft of them efpecially, will be of great ufe to the next Editor of the Saxonl^aws. For Mr. Lombard's collection might be now greatly improv'd, as one, who beft knows, aflures the world, that befide the Laws firft publifht by Lambard, and revisd by Whee- lock, it was probable that many others lie c once aid in the Bennet and Cottonian Libra- ries, which it would be good fervice to fend abroad into the world. And (fays the fame great man) / have by me a Tranfcript of the Laws 0/A/;/gythelbert, Hlothare, ^^Edric, 1 Cafaub. de Lig. Saxon, p. i and Pre- bendary of his Grace's Metropol. Ch. of Can* terbury. Leges Anglo Saxonies Ecclejiaftictf Sf Civiles. Accedunt Leges Edvardi Latin# y o * Guilielmi Conqueftoris Gallo-Normanmc and ntfv over the many monuments of venerable Antiquity m that language and Char affier^ the peculiar trea~ fure of their nation^ Poffibly Eftates and ^ feme titles may have been obtained by lighter means 5 but the good 'name^ and the abilities to ferve a Kingdom, have been acquir'd only by thefe induftrious ftudies^. This keeps up the memory of Coke y Dodderidge, Noy y S el- den, Hale y and many other oracles, whom no authority nor time can filence. But I proceed to tell you the next labour of Mr. Somner: which was a diflertation de ' i /: o:or. b ! r o^ Jfjh t * - ' tj - n Hickefii Pnefat. ad Gram. Saxon. * Portu The LIFE of Mr. SOMNER. 69 *J 7 Portulccio. For examining the expedition of Ceefar into Britain^ he found by his own ac- count , that his firft voyage began from a Port of the Morini^ from whence was the fliorteft paflage into Britain. And where he took fliip the fecond time, (which by defcription appears to be the fame place) he exprefly call'd Portus Iccius. Men of learning were not agreed in thefite of this haven. lAt.Camdenm&Ortelius thought it to be Witfan. Raimundm Mar- lian, %x\& Adrian Junius, believ'd it the fame with Calais. Jac. Chifletius for the honour of his Mafter the King of Sfa'm^ would have it Mar dike in Flanders* But Mr. Somner fixes it at Gefforiacum, now Bologne^ wherein he was followed by Sanjbn^ Sec. Of later wri- ters, Adrian Valefius* concludes it to kzEfta- fles nigh Bologne. The noble Du-Frefne* and M.Eaudrand 1 reftore it to IVitfan or Witfant. And Mr. Halley f conjectures it was near Calais- clifs, either Awbleteufe on the one fide, or Calais on the other. Other Critics may fufpend their judgment, till they fee this ^..-, .- C*f. Comment. /. 4. Notitia Galliarutn in voc. Iccius Portus, * Dijffertatio 28. in not is ad wtam L. Ludovici. ' Lex. Geog. ' Pbilofofh. Tranfafi. March 1691. dif- jo The LIFE of Mr. SOMNER. difcourfe of Mr. S owner ^ which defer vcs to be fairly publiflht. The MS. bears this title, A difcourfe of Portus Iccius, wherein the late conceits of Chifletius, in his Topographical Dif- courfe, are examined and rejuted: the judg- ment of Cluverius concerning the fame Port ajferted and embraced^ and the true fete thereof more clearly demonftrated y ly William Somner. Soon after tranflated mtoLatme y and adorn'd with a newDiflertation by the prefent Lord Bi- {hop of London^ then a fevere Student at Oxford, there publiflit under this title, JULII CM- SARIS PORTUS 1C CIUS llluflratus. Sive i.GULIELMI SOMNER/ ad Chifletii Librum de Portu Iccio Refponfeo, fiunc primum ex MS. edita. z. CAROL I DU FRESNE Differtatio de Portu Iccio. TraBatumutmmqi Latine vertit>&nova Dif- fertatione auxit Edmundus Gibfon Art. Bacc. e Coll. Reg. Oxon.0xonit y e 7*heatro Shel- doniano Anno Dom. MDCXCIV. 8w. He gives Mr. Somner the defer ved title vtimtnor- tale Cantuari Amawtenfis Letfori X. Script. there The LIFE of Mr. SOMNEH. 75 there wanted a Glojfary, or explication of the more obfcure and obfolete words, which of- ten occurr'd in thofe primaeve writers. For this province, they knew none fo well quali- fied as Mr. Somner : to him they commit the office, and he difcharg'd it with infinite inte- grity and honour. So that when in itfyi. this beft collection of Hi/iorians came forth under this title, Hiftori* Anglican* fcriptores X. &c. ex vetuftis Manufcriptis nunv primum m lucem edrti, &c. The Appendix was Mr. Somner's labour, thus infcribd, Gloffar'tum, zn quo obfcuriora quxq^ vocabula^ qu 76 The LIFE of Mr. SOMNER~ fagacious fe archer into the Anti* quities of his Country y and moft expert in the Saxon tongue. If-fome words are here gloft upon, not found in thefe writers , know, this was not done out of oftentation, or the affeBed glory to appear learned-, but it was granted at the importunate requeft of his friends, by a man oj\ the greateft modefly and ingenuity ,- that if fuch terms occur in other Hijtorians of our nation, and by none that I know of ex- plain' d; you may from hence difcover the fenfe of them: our defi^n being not to grve trouble to him , but fatisfaBion to you : fuch are Culvertagium, Wkerden, Tenmantale, (the under ft anding of which I owe purely to him) and others of that kind. This key to reclufe and antiquated words, improved whatever of this nature had been done before: it amends and fupplies the old Gallic Glojfary y Cooper: whofe di fingenuity is much the greater, hecaufe in his Preface and Dedication, he mentions the Bib- Itothece of Sir Tho. Elliot , and the Thefaums of Rob. Stephens - y but fpeaks not a word of this other Dictionary of Charles Stephens , which was the copy (I allure you) that he ton- ic rib'd verbatim. When Mr. Somner had made an immenfe col- lection of materials, in order to compile his Dic- tionary, and had methodized them in two large volumes, now remaining in the Canterbury Ar- chives 3 he fent up his papers to Oxford, and the Impreffion was here made for the Author, Apr. . with an elegant infcri ption to all Students in 96 The LIFE of Mr. SOMNER. in the Saxon tongue $ a grateful Dedication to his Patron Roger SpelmanHLtc^ and a proper ufeful Preface. The Author and his work recommend- ed by the ingenious verfes Englijh and Latin, of John deEofco , Henry Hitgford jjojhua Chtl- drey- y and/^ 7 ///. Jacob Phyfician; with an Ap- pendix of the Grammar and Gloffary of &lfnc. And at the end of all is a Catalogue of thofe wor- thy per fom who contributed to the great charge of the Impreffion y whofe names and example he commends to the prefent age y . and to po- fterity for the perpetual honour of Pbdolo- gers y and as a teftimony of the Author s grate* ful mind. Let none be offended, that fo excellent a work was forced to be thrown upon the pub- lick flock, and brought up on common cha- rity. Till the men of curiofity encreafe their number, this muft be the fate of the beft books, that they fhall not bear the charges of their own Impreffion. It is this has ftifled the con* ception of many glorious defigns, to fee ex- quifite Volumes thrown back upon an Author's empty hands 3 while Plays and Pamphlets re- ward the trifling writers. What elfe was the reafon that moft of our old Hiftorians were firft printed Tie LIFE of Mr. SOMNER. 97 printed beyond the feas j but only, that cheaper methods, and quicker fale, made the Editors to gain abroad, what they muft have loft at home ? What induc'd Sir IValter Raleigh to burn the fecond part of his admirable Htftory y but only a fordid complaint, that the firft five books were a burden to the printer 11 ? What inclined Sir Henry Spelman fo long to fupprefs the fecond part of his incomparable Glof- fary^ but this only 5 that when he offer'd the copy of the firft part to Bill the King's Prin- ter, for five pounds in books, that light pro-' pofal was rejected, and he was forc'd to make the Impreffion at his own great charge *? How could Dr. Brian Walton have carried on thofe fix ftupendious volumes of the BMia Polyglotta, An. 1657. if there had not been a public fund, and Treafurer appointed to collect and difpofe the contributions of wor- thy men 7 ? In a word, it was a credit to this work of Mr. Somner^ that it appeared fo little the intereft of the writer, and de- ferv'd fo much the charity of public bene- factors. Efpecially at a time, when the op- n Life of the Author, Prof. Gett. Hift. of the world. * Editorts Pref. ad Gh/arium. 1687. y Wood. Atben. Oxon. vol. z. Fafti. O The LIFE of Mr. SOMNER! preffed Royalifts were more tempted to write for bread, than for glory $ and- were driven upon a double neceffity, to beg for the fup- port of themfelves, and the Edition of their books. For this indeed is a farther honour to the work, and the Author of it 5 that it was done in the days of Anarchy and Confufion, of Ig- norance and Tyranny 5 when all the Prof eflbrs of true Religion and good Literature were fi- lenc'd and oppreft. And yet Providence fo order'd, that the loyal fuffering party did all that was then done, for the improvement of letters, and the honour of the nation. Thofe that intruded into the places of power and pro- fit, did nothing but defile the prefs with lying news, and Faft-Sermons 5 while the poor eject- ed Church -men did works, of which the world was not worthy. I appeal to the Mo~ nafticon^ the Decem Script ores, the Polyglot Btble y [[the London Criticks, the Council of Florence^ and the Saxon Dictionary. I need not tell of the good reception this labour met with among men of judgment 5 nor how the great progrefs in the knowledge of this tongue was owing moll to this one work. I. would The LIFE of Mr. SOMNER. I would only remind you, that our eminent Linguift Dr. Tho Marejhall y in the Preface to his Saxon Gofpels, refers the Reader upon all doubtful words, to this complete Dictionary, 'which Mr. Somner compos d with great dili- gence. And our firft excellent Grammarian does gratefully acknowledge, that he collected many critical obfervations, which lay difperfi in this work*. It is true, this firft public eflay on the con- ftru&ion of the Saxon tongue, was not fo full and abfolute, but that it is now capable of additions, and great improvement. For how indeed can any works, but thofe of crea- tion, be perfect, when they are firft produc'dj Efpecially in a performance of this nature, that depends on the variety of words, and Author's various acceptation of them: here the prime birth can give no more than infancy: it is age and education muft encreafe the fta- ture, and mature the ftrength. Befides, our Author had this peculiar difadvantage, that while the abundant fenfe of words can be ga- thered only from a multitude of writers in all different times, and all different profeffionsj i Pr#f. ad Gram. Sax, O z he loo The LIFE of Mr. SOMNEIU - he could procure but few books, and thofe of a fhort and ignorant age* This Apology I can better reprefent in the words of an inge- nious Etymologift. How fmall a portion of our ancient tongue ', like a few planks from a? fatal fhipwrack) has come into our hands? What a /lender flock of words can be drawn out of three or four fmall Traffs? If of Ro- man Authors, none had been left to us but the Offices of Tully, and the Hiflories of Saluft and Tacitus. If of the Grecian, none but Herodotus, Thucydides, and Zenophon, how could Calepine and Stephanus have fevelfd their volumes to fo great a bulk? If you com" fare our Somner to thofe giant Authors^ tho* in diligence not inferiour to either of them, you would fee there a Hercules and a Cyclops - r here a Hylas and a Pigmy*. Tho' certainly, if we look back on the firft attempts of this kind, in all the ancient and modern tongues,, we flhall find no one Nomenclature, in its pure beginning fo copious, and fo exact, as this of Mr. Somner. , He himfelf was moft confcious, what was- wanting to it, and therefore was alway im- * Skivyeri. Etymol pr. 16 64. which runs thus. I return you many thanks for thofe papers of Mr. Davenport , which you were pleas d to impart unto me. I have more than once per" ufed them, and am fo well pleas' d with them, and inftruffied by them, that I fhatt improve them to a good degree ; in point of correction to fome, enlargement and illuftration in other parts of my Lexicon -, not without the ingenuous acknowledgment of my Author. Mean time, \_as in order to fetch a ufe I keep them by me y fo it is my very great defire that with my beft refpeffls, and jervice to the Gentleman my ap* proved Friend ( of whofe communicative good" nefs I have formerly tafted) my hearty thanks may be prefented at your next opportunity for inter courfe, with my earneft Suit for the con~ tinuance of his favour towards, Reverend Sir, Your moft and much oblig'd WILLIAM SOMBER.], Buc The LIFE of Mr. SOMNER. But Mr. Somner liv'd not to execute the gooddefign,- nor has any yet refum'd it 5 tho' materials lie ready gathered. For among the printed Authors, left corrected and illuftrated by the hand of Junius, there is this Lexicon of Mr. Somner , with other loofe (fleets, and the Grammar of JElfric collated with fome Manufcripts. Another of thefe printed vo- lumes was in poffeflion of the forefaid Mr. George 'Davenport^ much noted and enlarg'd by the curious owner 3 and is now in other hands, interleav'd, and much farther improv'd. The want of a new Edition would indeed be fuperfeded, could the world at laft enjoy the Etymologtcon Angltcanum^ completed by F. F. Junius in two volumes, and that Au- thor's incomparable Lexicon of five Northern languages , which that mod worthy Prelate Bi- fhop Fell took care to have tranfcrit/d in eleven volumes : and fome few years fince, we were fcncourag'd with the hopes of a fpeedy publi- cation b . But chance and change have employed mens thoughts another way. Whenever the impreffion is refolv'd upon, it muft pafs thro' * Hickefii Cataf. Lib-, append. Gram. Sax. p 147. i many The LIFE of Mr. SOMNER. 103 many hands, which will never joyn, if they muft return empty. It wants and deferves a public fpirit, and a public fund. The laft fervice of our Author was to pub* lifli his Treatife of Gavelkmd y Sec. An. 1660. which I have already mention'd $ and need on- ly add, that fome reflections were made on this difcourfe by Silas Taylor Gentleman, in his Hiftory of Gavelkind, with the Etymology thereof, &c. London, 1663. 4** who, in his Preface, does inform the Reader, that he took occafion to publifh his notes of this Tf- nure^ from the late printed Treatife of that induftrious Gentleman ^ Mr. William Somner #/" Canterbury, that he has intermingled thofe firft obfervations with thefe Animadverfions on his learned dtfcourfes: that he entred not on this undertaking to quarrel with him^ or with a defign to carp at any thing , which he hath laborioufly written^ &c. This lefs accurate writer has only attempted to carry the original of the name and of the cuftom from the Saxons to the Britains , and to prove it not proper to Kent, but of an ancient ufe in other parts of the Kingdom, Sec. In all material points he confirms the opinion of Mr.. Somner r ; The LIFE of Mr. SOMKER. .,-"!>" . . t > * " Somner^ who in other exceptions has made his own defence in marginal Notes , on Mr. Silas Taylor'* Gavelkmd Hiflory, cor reft ing his miftakes, &c. And his own printed trea- tife, when he was after confcious of any omif- fions, or lighter errors, he fupplied and amend- ed with his own hand. Both the books fo annotated are now in the Canterbury Archives, and will be of great ufe to the next Editor of this very excellent Treatifi ofGavelkind. Tho' our Author publifht nothing more in his own name 5 yet he was a fellow-labourer in many other works. Particularly in they- cond Tome of Councils, of which the firft had been publifht by Sir Henry Spelman, London, 1639. who had projected two other volumes. After the Reftauration, Archbiflhop Sheldon, and Chancellor Hide, importuned Mr. Dug" dale to perfect a fecond Tome, who is faid to have added as many Tranfcripts as now fill 143. of the 200. printed flieets$ of which he had feveral communicated to him by his old faithful Correfpondent Mr. Somner, from the Regifters of Canterbury. It was publiflit Lon- don, 16(54. fcM of miftakes. Mr. Somner with great pains and accuracy, collated the i printed The LIFE of Mr. SOMNER. 105 printed copy with many of the original Re- cords, and in the margin amended the infinite defects. He had before done the fame juftice to the firft Tome 5 of which he publicly com- plain d, that the verfion of the Saxon was Faulty, and occafionally gave a more correct interpretation c. Both thefe volumes fo emend- ed are now in your Canterbury Archives $ and will lend a very great afllftance to any learned man, who has fpirit to undertake a fecond Edition of thofe Monuments of the Church 5 for which the world will praife him,, and may God reward him. I have now done with the works and more public fervices of Mr. Somner, as an Antiquary and an Author. I would on- ly invite you to look back upon his Loyalty to the King, his affection to the Church, and his integrity to all the world. His Loyalty was firm and conftant, not depending on intereft, which might change $ but upon a judgment, which could not alter. He adher'd to his Royal Mafter^ and dar'd to fuffer with him. A man of his parts and ac- quaintance, might have chofen his office from c Saxon. Dittion. in voce P the io6 The LIFE of Mr. SOMNER. the ufurping ftate, and his portion of lands from the diflblved Church. But he would accept of nothing from thofe who had no right to give 3 choofing rather to fuffer affliction. He could influence his whole family to the fame principles. Both his brothers were true and zealous in the fame caufe. John who was afterwards Wood-Reeve to the Archbifliop of Canterbury, and George a Major in the Militia of Kent , who appearing at the head of a party in the laft effort, which was made by the Royalifts in that county, 1648. en- gag'd the rebels at Wye with very unequal force : and tho 5 he might have fafely retir d, or fecur'd his life by afking, he fought on, and fell with honour. Our Author's profeffi- on and genius had lefs adapted him for arms $ but he was no lefs zealous to aflert the rights of the Crown, and the Laws of the land, by all the means which his capacity could ufe. When no endeavours could ftop the madnefs of the people, nor fave the erTuiion of Royal Blood ; he could no longer contain himfelf, but broke into a paflionate Elegy, The infe- curity of Princes y covfidered m an occafional meditation upon the Kings late Sufferings and Death. The LIFE of Mr. SOMNER. 107 Death. Printed m the year, 1648. 4*. And foon after he publiflit another affe&io- nate Poem, to which is prefixt the Pourtraio ture of Charles the firft, before his EM&V B*J, and this title, The Frontifp'iece of the Kings book opened with a Poem annexed \ The infe- curity of Princes, dec. 4*. He waited all opportunities to ferve his baniflit Prince 3 but it was the fate of the honeft Gentry to be difappointed in all attempts, and draw down the greater perfecution upon their own heads. Mr. Somner had his fliare of fuflferings from the jealous powers, and, among other hard- fhips, was imprifon'd in the Caftle of Deal for endeavouring to get hands to petition for a Free Parliament $ which he forefaw would reftore the Church and King. Within a month or two, this method, bleft by Provi- dence, gave liberty to him and all the Na- tion. j^But in the mean time the Rump, that was the Power in being, infulted thofe Gentlemen of Kent, with this account of their fruitlefs Enterprife to make it feem ridiculous - y from Sandwich in Kent. Feb. 3. 1659. Here was lately brought into this town a Paper called A P ^ Declaration io8 The LIFE of Mr. SOMNER! Declaration of the Nobility, Gentry, Mintflry and Commonalty of the County of Kent- the Sum whereof was, after many touches and reflections couched therein to the diminution of the prefent Parliament, in as good Engltfh as if it had been penn'd at Bruffels, the old Cavaliers in this County have been very active in putting this Paper about for fubfcriptions. 1 hear the Paper hath been XiRockefterwA offered to the Corporation Court 3 as alfo at Canterbury, and fo fpread towards Dover, and into the ifle of Thanet / Sir William Man, Sir John Boys, and Mailer Ingeham, Mr.SoMNER, Mr. John Boys, Mr. Lovelace, and Mr. Ma- flers of Paul's in Canterburyhzvz been taken notice of for this Bufinefs, and- divert of the Promoters having been clapt up, the reft be- gin to cool, efpecially fince they have heard, that General Monk in his Anfwers as he march'd, fo fully declared his adherence to the Parlia- ment d . We may prefume that among thefe In- ftruments of Loyalty^ Mr. Somner being the chief Penman was employ'd to draw up that Declaration, or was at leaft the chief Promo- *. {*] j * .*-'.*/ /\ ; . - ' J Mercur. Polit. by Order of Part. 4 to . Num. 60;^ & ter The LIFE of Mr. SOMNER. 109 ter of getting Subfcriptions to it, and had his greateft fliare in furTering for it.^j If we next confider his zeal and affection to the Church of England y we fhall find them arifing from a fenfe of conference, that no threats or flatteries could move. His own primitive fpirit, inclined him to the Doctrine and Difcipline of true Antiquity 5 and made him naturally averfe to change and innovation. He helpt to fuftain the old foundations, as far as his ftrength and art could do: and when he found they muft be overthrown, he was con- tent to be involv'd in the common ruines. He murmured not, but made a foft complaint, that he was overtaken by the impetuous Jlorm^ and necejjitated to betake himfelj to other thoughts y chiefly how he might fecure himfelf againft the fury y in warding off the danger, &c. Yet his cares were more for the public intereft, than for his own fortunes : as Keeper of the Archives , he had been alway faithful in the truft committed to him: But facrilege and rapine, when they had devour'd the holy, things, would have embezled or deftroy'd all the Deeds and Records, that convey'd, and confirm d them, This was the practice of thofe no The LIFE of Mr. SOMKER. thofe bleft Reformers. At Peterburgh in April 164 3 . a Regiment ofhorfe under Colonel Crom- well, forcd open the Church doors, tore in pieces the Common-Prayer books, took away the Leiger-book of the Church, broke into the Chapter 'houfe, ranfackt the Records, broke the feals, tore the writings, and left the floor cover d over with torn papers, parchments and feals*. About the fame time a party under command of the Lord Brooks, fiorrrfd and took the Cathedral Church of Litchfield, broke and fhot down all the ornaments of it, and caft into flames all the Regtfters, Charters, Books, and I^eftments*. At Worcefter Sep- temb. 14. 1^43. ^e Army under command of the Earl of Eflex, prophatfd the Cathe- dral, rifled the Library, with the Records and Evidences of the Church s . The like out- rages were committed in the Cathedral of Can- terbury, Aug. 26. 164.1. by the countenance of Colonel Edwin Sandys, and the madnefs of Culmer - and much greater fpoil had been done to the Muniments and Hiftories of the " SuppJem. to Hlfl. ofCh. o/Peterb. p. 334, 337. f H.Whar- tom prafat. *dAng~ Sac. Tom. i.f. 3f. g Dug.PiVtw of troub. f- rn- Church, Ill Church, if the courage and prudence of Mr. Sommr had not diverted the thieves, and con- ceal'd the treafure. Some he repofited in un- fufpected hands, and kept others in his own cuftody^ and redeemed others from the needy foldiers, who (like the old woman with Tar- qu'tn) would have burnt them, if the price had not been given. Soon after profeffing, That his great care fhould now be to fecure and refcue old Records from that fcorn, neg- leffi and contempt caft upon them, m the days of fo much novelty h . Nor did he only pre- ierve the writings, but other ornaments of the defolated Church. Particularly, when the beautiful Font in the nave of that Cathedral (built by the right Reverend John Warner Bifliop of Rochejter, late Prebendary of Can- terbury, and confecrated by John Lord Bifliop ot Oxon. 1636.) was pulled down, and the materials carried away by the rabble, he en- quir'd with great diligence for all the fcatter'd pieces, bought them up at his own charge, kept them iafe till the King's return, and then delivered them to that worthy Bifliop 5 who Pref. Treat. Gavelkind, reedified. H2 The LIFE of Mr. SOMNER. reedified his Font, and made it a greater Beauty of Holinefs^ giving to Isfa.Somner the juft honour, to have a daughter of his own firft baptized in it. This Prelate was he, whom the Fanatics of that age condemned for a covetous man. His memory needs no vindication, but give me leave to mention this certain relation of him. When in the days of ufurpation, an honeft friend paid a vifit to him, and upon his Lord- fhip s importunity , told him freely the cen- fures of the world upon him, as of a clofe and too thrifty temper: the Bifhop produc'd a Roll of diftrefled Clergy, whom in their ejectments he had relieved with no lefs than eight thoufand pounds : and enquired of the fame friend, whether he knew of any other the like objects of charity. Upon which mo- tion the Gentleman foon after by letter, re- commended a fequeftred Divine, to whom at firft addrefs he gave one hundred pounds- Let me go on, and tell you, that by his laft Will An. 1666. he left a perional eftajte to build an Hofpital, for the maintenance of twen- ty Widows, the Relicts of orthodox and loyal Clergymen, to each an exhibition of twenty 3 pounds The LIFE of Mr. SOMBER. no pounds annual, and fifty for a Chaplain to at- tend upon them. He gave one thotifand pounds to encreafe the Library of Magdalen College Oxon. five hundred pounds to the Library at Rochefter : eight hundred to his Cathedral Churchy in addition to two hundred, which he had before given : one thoufand and fifty pounds to the repair of St. Paul's in London: two thoufand to the buying in of Impropria- tions within the Diocefs of Rochefter: twenty pounds to the Church of St. Clement Danes : twenty to Bromley, and a yearly penfion to St.DionyfeBackchurch^ and fourlcore pounds yearly for the maintenance of four Scholars of the Scotch Nation, in BaltoL Coll. Oxon. All this was the charity of one fingle Prelate, who was depriv'd of his Ecclefiaftic revenues, for more years than he enjoy'd them. He was a peculiar friend to Mr. Somner^ and the chief contributor to the Impreffion of his Saxon Dictionary, his name ftanding in the front of thofe encouragers of learning 1 . Let us laftly reflect on Mr Somners inte- grity to all the world. This alone can prove \ Catal. Append. Sax. Di&. Q. Loyalty H4 ^ e LIFE of Mr. SOMNER. Loyalty and Orthodoxy, not to be the affecta- tion of a party, but the confcience of a Chri- ftian. Men may profefs any faith, or adopt any catife^ but it is innocence and honefty alone, that can prove it a belief, and not a pretenfion. This proof was given by Mr. Somner y who in all his writings had been fo plain and fincere, that he would not diflemble a truth, nor fugged a falfe invention. His profeflion was, That he loved truth (the end of allfcience) for it felf$ and was altogether unbiaft with any by rejpe&s, whether of vain- glory , Jingularity y or the like: making it his conftant endeavour , that truth alone might triumph over falfhood^ Antiquity over novelty*. How do moft Hiftorians betray a partial re- gard to their Nation, or their party? How many pretenders to Antiquity have conceal'd the notice of whatever opposed their own fan- cy 5 and rais'd the apparition of Records, to juftifie the caufe for which they wrote ? Efpe- daily, how do moft defcribers of their native foil take pains to flourifli and difguife^ and (like Sir Henry IVottorfs Embaflador) think it even a merit to lie for the honour of their * Pref. to Gavelkind. Country ? The LIFE of Mr. SOMNER. 115 Country ? Mr. S owner had a probity and ex- cellence of fpirit, that made him abhor all fuch artifice and guile. Let one fliort inftance ferve. There were two fpecious traditions, thatfeem'd much to illuftrate the credit of our County, i. That the Kentifh-men were the only Englijh^ who maintained their privileges againft William the Conqueror -, and tinder the conduct of cfegtfWArchbifliop, m&J&gelfme Abbot of St. Auguflines^ march'd with boughs, and made their compofition at Swanfcomb '. i. That, of all Counties, Kent alone enjoy'd an immunity from the tenure of villenage, a privilege continued to them by the faid Con- queror. Tho' for the honour of his mother County he might have been glad to defend thefe titles , yet having found them falfe, he fcorn'd to appear an Advocate for them $ but refutes them as Monkifh figments , and politic^ i j ' y j\ ly devis a 1 . Mr. Somners whole life was like his writ- ings, void of prejudice and paffion: he had that civility, which Ctefar obferv'd to have been peculiar to the inhabitants of . o/Gavelkind, f. 63, &c. m CvCu'sCommett. I. 6. Q z and n<5 The LIFE of Mr. SOMNTER. and that firm refolution, which made our Countrymen claim an ancient privilege, of being plac'd in the front of a battle". He was courteous, without defign $ was wife, without a trick 5 and faithful, without a reward. Hum- ble, and compaflionate^ moderate, and equal 5 never fretted by his afflictions 5 nor elated by the favours of Heaven, and good men. It was his charity,, and purity of heart, that pre- fdrd him to the Mafterfhip of St. John's H&f- fitalj in the* fuburbs of Canterbury, An. 1660. In which ftation he did not fubftracl: from the pietance of the poor, nor ufe any arts to rob the fpittle, but was tender of their perfons, and zea- lous of their rights. By Ws Intereft and Courage he recovered fome parts of their endowment, of which by the Commiffioners on the Stat. 37. of Henry VIII. /* had been fleeced, as other like places, by tbefacrtlegiouspilfenes ofthofe raven- ous and wretched times . It was for the fame plain and open honefty, that at the Reftauration he was appointed Auditor of Chrift-church Canterbury, by the Dean and Chapter fo -whom he was a Father and Friend,-mQre than bn,?; Lambard's Perambulate p. 11^ ^^/f-^Cattt: y. 94. an The LIFE of Mr. SOMNER. 117 an honorary fervanr. He entertained them in his own houfe, till their own were clear'd from the Fanatic Intruders , and made convenient for them. He deliver'd back all their pre- fer v'd writings 3 informed them of all their late alienated lands: received all their Fines, and digefted all accounts to univerfal fatisfaction. This fettled him fuch an intereft in that Body, and all the members of it, that no private man had an equal influence and authority 5 which he never employed, but to promote fome act of charity and juftice. He was frequently entrufted by the Dean and Prebendaries, to fupervife the public School, to examine Lads, that fhould be elected King's Scholars 3 and, upon the like trial, to judge who were moft fit for removal to the Univerfities 3 in which, his enquiries were exact, and his favours were impartial. His endeavours were to advance the intereft and honour of the School, to as high a pitch, as while he was himfelf a mem- ber of it : when his matter Mr. John Ludd y fome years before he died, affirm 1 d^ he had thirty feven Mafters of Arts of his own bring- ing up*. Dr. Tho. Turner the worthy Dean, ' England deferred by Edw. Leigh. /. ioS. had n8 The LIFE of Mr. SOMNER. had a moft peculiar efteem for him, and paid him the frequent vifits of a moft familiar friend. All the neighbouring Clergy, whom he knew to be of good principles, and honeft converfation, he aflifted with his knowledge, his intereft, and his free advice. I remember to have often heard my Honour'd Father Qthe Reverend Mr. Eafel Kennet Vicar of Pofl- ling^\ dwell much upon the fair .character of Mr. Somner^ and reprefent him as a Patron and Protector of all the regular Clergy. Of his refolute and incorrupted honefty there can be no greater argument than this. Among all his temptations, in feveral offices, to high and arbitrary fees 5 among the eafy advantages to be brib'd 3 and the juft expectances to be rewarded: among the many opportunities of fliaring in the Church's treafure , and taking leafes of their land : among the moft ready and effectual means to raife an eftate, and ad- vance a family : He left but a fmall compe- tence, which if not frugally manag'd, could never have anfwered the fupport of his Wi- dow, and the education of his Children. By his laft Will he gave feveral Legacies to the poor, and a kind remembrance to Mr. 3 Stockar The LIFE of Mr. SOMNER. 119 Stockar then Minifter of St. jEtpbege Canter- bury. In the beginning of his laft illnefs he took an opportunity to tell his Wife, that thro' his whole life he had never been let blood, nor taken any phyfick, which is a juft argument, not only of his happy conftitution , but of his exacl: temperance and fobriety. The day of his birth was the day of his death. March 30. 1669. aged 63. years 5 according to the account given by his Wife and Son, who re- port it from tradition, and fome better grounds. But a Certificate from the Regifter-book of St. Margarets Canterbury , under the hand of Mr. Tho. Johnfon^ reprefents him to be bap- tiz'd Novemb. j th . 1598. by which his age muft reach to feventy years, five months, dec. Which length of days had almoft made him (as Queen Chriftina faid lately of her felf and Rome} one of the Antiquities of the City. He was buried Apr. 2. within the Church of St. Margaret's, where many of his Anceftors lay interred. His grave is diftinguiflit by no ftone, or infcription on it. An omiffion, that, I prefume, was more owing to his own mo- deity, than any diirefpect of his furviving friends. Yet I cannot but admire and lament, that I2o The LIFE of Mr. SOMNER.' that fuch learned aflies fhould lye without a letter on them: that he whorais'd the memory - of fo many great names, fhould himfelf ileep in a place forgotten : and after all his labours, to eternize the tombs and epitaphs of others, fhould have no fuch decent ceremony paid to his own duft. Sure the time will come, when fome grateful monument fhall be erected for him, either by fome one of his family, whom Providence fliall enable to pay that duty : or by fome one generous lover of Antiquities : or by that Capitular Body, to whom he did fuch great fervice, and fuch great honour. He was twice married. His firft wife was Mrs. Elifabeth Thurgar, born of a good fa- mily in Cambridge/hire, with whom he liv'd in love and peace about thirty years 5 and had by her four children, three daughters, and one fon, all dead. His fecond wife was Barbara daughter of Mr. John Dawfon, a Kentifb Gentleman, (a great fufferer in the long Re- bellion) by whom he had one daughter, that died unmarried, and three fons, of which two are now living : William Somner M. A. late of Merton Coll. Oxon. now Vicar of Limmge in Kent, our worthy friend: and John, who 3 practifes The LIFE of Mr. SOMNEIU 121 tifes Chirurgery with good repute in thofe parts. His laft wire is now the mourning Relict of Mr. Henry Hannington, late Vicar of Elham. His many well fele&ed books, and choice Manufcripts, were purchas'd by the Dean and Chapter, who knew the great value of them, and what a noble addition they would make to the public Library of that Church : where they now remain an ineftimable treafure. The catalogue of his Manufcripts, I will fubjoin to his life, in the fame order and words, where- in you have tranfmitted the account, not doubt- ing your care and exa&nefs in it. Many of his notes and loofer papers were carried from his ftudy to the Audit- houfe y with- in the precincts of Chrift- Church^ where they were unfortunately burnt, by a fire which hap- ned in that place foon after his death. By this and other accidents, his letters and many me- morials of his life are loft. Had they conti- nued to us, we (hould have better trac'd his friendflhip and correfpondence, with moft of the men of honour and learning in that age* From the obfcure hints, that now remain, I fihall mention forne of them. R Firft. 122 The LIFE of Mr. SOMNER. Firft. Archbtfhop Laud, by whofe favour and goodnefs he fubfifled tn his place andpro- fejfion*^ who made great ufe of him in his Articles and Injunctions, fent to the French and Dutch Congregations in thofe parts, An. 1634. and in many regulations of the Diocefe and Cathedral, An. 1636. For which dutiful affiftance, Mr. Somner was publickly charg'd by thofe foreigners, as acceflary to their trou- bles r : and he bore from all Schifmatic parties a greater fliare of calumny and perfecution, for being {in the brethren's language) one of Laud's\ creatures. The great efteem that Prelate had for him, was not fo much for his faithfulnefs and dexterity in difcharge of his. office, as for his profound knowledge of An- tiquities. For as no one part of learning was unrewarded by that Great Soul^ fo he had a moft particular refpect to Hiftorians y and An." tiquartes. Sir Henry Spelman does gratefully report him a great encourager of his Edition of the Saxon Councils*. Mr. Jer. Stephens * by the Archbiflhop's favour, was made Pre- bendary of Biglefwade in the Church of Line* * Ep. Ded.Antict. Canterb. r Troubles of the foreign Churches in Kent. 4'. ' Pref. Counfil. Tom. i. as Tie LIFE of Mr. SOMNER. 123 .as a reward of aflifting Sir Henry Spelman in that labour*. Fr.Junius, that oracle of the Northern tongues, at his firft coming into Eng- land, was recommended to the Earl of Arun- del, and retain'd in his family by the intereft of Dr. Laud, then Bifhop of St. David's*. John, fon of Sir Henry Spelman, dedicates to the Archbifhop his Latin Saxon Pfalter^ and celebrates him for a Preferver of ancient Manufcnpts, and a Patron of the Saxon tongue *. The lame excellent Prelate countenanced the like ftudies of Mr. Somner, and made ufe of his affiftance in collecting many of thofe vari- ous Manufcripts, which he fent hitherto adorn our Bodley Archives ; of which eighty at leaft are purely on the fubjeft of National Antiquities. And it is probable, our Author was employ'd further in compiling or digefting that large book in vellum, fairly written, containing the Records which are in the Tower, and concern the Clergy, ab anno 10. Edw. I. ad an. 14. Edw. IV. which book the Archbiflhop got done at hjs own charge, and left it in his jiudy at 1 Atben.Qxvn, Tom. 2. p. 230. u F. Jun. de Pifiura Veterum^ Pr*f. 4 to . Ef. Ded. Pfalter. Lot. Sax. 4'. 9 R ^ Lambeth LIFE of Mr. SOMNER, Lambeth for poflerity, June 10. 1643. which Mr. Ryley was the chief Projector.] This was the prudence and honour of that Go- vernour, to confider ufeful and beneficial men 5, and fliould indeed be the fpirit of all Patrons, to refpect fuch as can ferve them, and the pub- lic. For this dependance, and thefe favours, Mr. Somner was humbly grateful. Of whom, (fays he) to fpeak, is not a tafk for my pen y I leave it to poflerity hereafter, and to better abilities, to fet forth his conjl ant piety, great wifdom, and fpotlefs juftice. Howbeit, what all men take unto themfelves a liberty to fpeak of him, I fhall be bold to commemorate^ that never to be forgotten gift of his the Uni- verfity Library of Oxford, of an innumerable multitude of choice and rare Manufcripts, with his great care andcoft, gathered from all parts,, not only of this kingdom, but alfo of the whole world** Archbifliop Ufher may be juftly efteem'd the next friend and Patron of Mr. Somner. How infinite the learning, and how large the goodnefs of this Prelate, is not to be here ob- v /?***. of Can* p. 174 , 275*. The LIFE of Mr. SOMNER. 125 ferv'd. It is only proper to remark his great zeal in reftoring the old Northern Antiquities, buried in the Gothic 2^ Anglo-Saxon tongues. He firft mov'd Sir Henry Spelman to found a Saxon Lecture at Cambridge^ he made the propofal in Sidney College 1 640 z , he recom- mended Mr. Abr. Wheelock to that office* 5 he advis'd him the method of reading the Saxon Gofpels b $ he gave him direction and encouragement to publifh his Saxon volume 3 and informed him that the Doxology in the Lord's Prayer was to be found in the old tranilation of the Gofpels into Gothic c . He furniflht Fr. Juntus with a MS. copy of Coed- L * mons Paraphrafe on Genefis: and promoted the Edition of that work <*: which very ancient Manufcript, the Bifliop firft communicated to Mr. Somner, for an account and more legible tranfcriptof it e . On which occafion, his Lord- iliip was fo well convinc'd of the abilities of our Author, that he gave a public approbati- on to \\isTreattfe otGavelkina* $ he ehcourag'd his attempts upon a Saxon Dictionary 5 he re- commended him to Roger Spelman Efq,, for 1 Abf. Wheeloci Epift. Ded. Bed*, 1644. a Ibid. b Jbid. c Verfw & not* ad Evanr.Perf. l6p. 4 Somneri prof. Sax. D/V?. c Ibid. 4 enjoyment 126 The LIFE of Mr. SOMKER! -enjoyment of the falary fettled by his Grand- father on a Saxon Lecture f : and did him all the other true offices of friendfhip. Sir Thomas Cotton of Connington Com. Hun~ tin. Baronet, by an hereditary love of Scho- lars, was a great Benefactor to Mr. Somner^ and his ftudies. He maintain'd an Epiftola- ry coprfpondence with him, gave him free accefs to his immenfe Library , lent him Glof- faries, and other remains of ancient letters g 3 entertain'd him in his houfe at Weftmmfter fome months, to collect and digeft his Saxon Dictionary - y and contributed to the expence of its publication 11 . That great Mafter of Hiftory and Law, Sir Roger Twifden of Weft-Peckham in Kent Baronet, exchang'd many kind letters, and in~ timate vifits, with our Author 5 received from him notes, and corrections, to his edition of the Laws of Henry the firft} furnifli'd him with the chartulary of St. Auguftins Abby in Can- terbury, and other curiofities'^ prevail'd with him to adorn the X. Serif tores y with an in- comparable Glojfary , bore a generous flure f ,Somneri />//?. Ded. Sax. Dit. Sax. DM, Pr*f. h Ibid. Aftend, j Treat, of Gavclkind p. 171. in The LIFE of Mr. SOMNER. 127 in the coftly edition of his Saxon Dictionary k ; and gave him the juft character of a man of primitive probity and candour , a moft faga- cious fe archer into the Antiquities of his Coun- try , and moft expert in the Saxon tongue - y &c *. for which fervice and civilities, Mr. Somner does more than once acknowledge him his- very noble and learned friend^ the prime en- courage r of his ftudies. That great example of induftry Sir W. Dug" dale, by his genius and parity of ftudies, was directed to the acquaintance of Mr. Somner , and contracted a faft friendflhip with him. He call'd in his affiftance to the magnificent vo- lumes of Monaft. Anglican. i6jj. and i6<5r. appeal'd to him for the etymology of names of places, to illuftrate his Antiquities of IV ar- wickfhire, 1656. received from his hands very many of the materials, that fill'd up the fe- cond volume of Provincial Councils, 1 664. depended upon his judgment and information, to complete the Gloflary of Sir Henry Spel- man. He feems to have attempted nothing without his advice, and to have publifht no- * Sax. Diti. Append. "Twifdeni Eftjt. ad Lett. X. Script, m Treat, of Garelkind, f. 171. ^ Sax. Di8. in iioce cpajaan. 4 thine 57 128 Tie LIFE of Mr. SOMNER. thing without his approbation: giving among others, this teftimony of his refpect and love. In etymologizing the names of Towns and Places^ I have not been over bold^ &>c. Nor Jhould I have adventured thus far , had I not received much light from that learned Gentleman Mr. William Somner of Canterbury, myjingular friend^ unto whom I cannot attribute enough for his great knowledge in Antiquities^ and thofe commendable works which he hath alrea- dy ', and is now taking pains in*. By this laft, he meant the Saxon Di&ionary, to which Mr. Dugdale contributed his knowledge and his money, and had this grateful acknowledg- ment made of it, 'The great retriever of our Englifli Antiquities^ my noble friend^ Mr. William Dugdale, one (to do him right) with" cut whofe active and effectual affiflance^ in the publication of it^ this work had never feen the light . The treafurer of Antiquities Mr .Roge r Dodf- worth, knew the perfon, and the worth of Mr. Somner. He borrowed from him the Dugdale'; Pref. to Warwickshire illtiftrated. Sax. Did. in voce chartulary The LIFE of Mr. SOIMNER. 129 chartulary of Horton~Monachorum in Kent p , and many other evidences of old devotion. He received from him farther fatisfaction in the catalogue of Archdeacons of Canterbury, which he had tranfcrib'd from his Antiquities of that City q : and from his kindnefs had a copy of many Wills, out of the Regifters of that See. SvtSimondsD 'Ewes Baronet, of Stow- Hall in Suffolk , a zealous aflerter of Antiquities, was not fo happy in the ufe of his own learn- ing, as in his intereft with Mr. Somner 3 who in- ftructed him in the notice of many things , and made the better ufe of his ineftimable records; taking occafion to tell the world, of a very rare Deed or Charter, taken from an ancient Ma- nufcrift chartulary y then remaining with Sir Thomas Cotton, which he mufl confefs to owe to the courtefie of his late learned jriend^ Sir Simonds D'Ewes. That excellent Philologer and Antiquary Mr. William Burton , had a knowledge and cfteem of Mr. Somner 3 when he mentions p Roger Dodfworth ColleS vol. 57. /. S(5. " Ibid. vol. 5-9. /:i6i., r Jbid. vol. 17. /. 81, S Canterbury ' The LIFE of Mr. SOMNER. Canterbury for one of the Roman ftages, for its modern fplendor and glory ^ he refers his Reader to courteous Mr. Somner's description thereof^ and approves the derivation of its name, given by that learned Antiquary*: and in fixing other of thefe ancient ftations, he rejects the opinions of Talbot^ Harrtfon, Cam- den^ Sec. and adheres to Mr. Somner^ as a very rational Gentleman, who places Novio- magus or Noviodunum at Crayford in Kent y very judicioujly 5 as he doth other things*. And for the fituation of Durolenum, he fol- lows the fame knowing Gentleman^ whom (fays he)yir his court efie^ and love to ancient fludies^ 1 fmgitlarly rejpe9: who takes it to have been feated not fay from Newington, a village on the road from Rochefter to Canterbury. In this particular y not a little ftrengthene din his conjeBure^ by the multitude of Roman urns, lately found in digging there^ as is already difcovered^ and difcourfed of by the learned Meric Cafaubon, his ever honour 3 d friend*. This new defignation of the Roman ways and ftages, fo happily determin'd by Mr. Somner^ 'Burton commtnt. on Anton. Itin. p. iSj 1 . ' Ibidrp. 176. Ibid./'. 1 8. is The LIFE of Mr. SOMNER. 131 is allow'd and confirmed by a Prelate of in- comparable knowledge*. [[And fince by Dr. Plot, Dr. Harris, dec.'] Sir John Mar/ham of Whornplace in Kent, valued at home, and admir'd abroad for his profound learning, had a juft efteem of our Author: and gave him the publick chara&er of a man mofl expert in our national Antiquities y the Author of a moft ufeful Gloffary, and the Projector of a copious Saxon Dictionary 7 , the Edition of which he encouraged by a liberal contribution 55 . Sir Edward Byjhe, Clarenceaux King of Arms, had the counfel and affiftance of Mr. Somner, to improve him in his own profeffi- on of Heraldry: kept an Epiftolary corre- fpondence with him 5 and kindly advanc'd the impreflion of his Saxon Dictionary*. Another accurate Herald and Antiquary, Elias Afhmole Efcjs, exhibited to the fame work of Mr. Somner*: furnifli'd him with many felect papers and tracts : and received from him the notice of many books and things, to 1 Stillingf. Orig. Briton, chap. 2. p. 63. T Jo. Marihami I7 ? rJ;ti, ad Mon. Angl. Toili. I . z Sax. Dift. Appe4. * Ibid. b Ibid. c Sax. Dift. in voce Tima, &c. S 2 carry 132 The LIFE of Mr. SOMNER. carry on his complete Hi/lory of the Order of the Garter^ and to fill up his many volumes of elaborate Collections, which are now re- pofited in this place d , by the laft Will of that generous Benefactor. Dr. Thomas Fuller^ who laboured for the reputation of an Hiftorian and Antiquary, courted the friendfliip of our Author: and, had he been more guided by him, would never have defil'd his writings with puns and tales. He clofes his difcourfe of Canterbury with thefe words, For the r eft ^ I refer the Reader to the pains of my worthy friend, Mr. William Som- ner, who hath written juftum volurrien of the antiquities of this City. I am forry to fee him fubjeft bound (betrayed thereto by his own mo- defty) feeing otherwife, not the City, but the Diocefe of Canterbury, had been more ade- quate to his abilities*. Dr. William- Watts, the learned and noble Editor of Matthew Paris, 1640. in the ufe<- ful Gloflary affixt to that work, was affifted by Mr. Somner^ who conveyed to him many o- 4 In Mvfao Athmoleano. 'Fuller'/ worthies of England, f. 100. \ ther The LIFE of Mr. SOMNER. ther informations, and at laft laments him as his deceafed friend*. Mr. George Davenport, an abfolute Critic in the Saxon tongue, was a true and ufeful friend to Mr. Somner^ and after publication of the Saxon Dictionary, contracted a more firm acquaintance with him : recommended to him fome few emendations, and feveral addi- tions to that work: for which our Author gave him the refpectful language of his approved friend^ of wbofe communicative gwdnefs^ he had formerly tafled^ Sec. But in recounting Mr. Somner s friends, it would be injuftice to omit his mod intimate guide and companion, Dr. Meric Cafaubon % whofe affection to his perfon, and influence on- his ftudies, have appear'd in many inftances before related. Mr. Somner very often ex- preft his grateful fenfe of obligation : confefles that to the ftudy of the Saxon tongue he was. encouragd by his precious friend^ and ever ho- noured Mecenas, Dr. Cafaubon h , who had ad- m'ttted him to an entire Jnendfh'ip^ and fami~ { Treat, of Gavelkind. e MS. Letter of Mr. Somner, 12. Ofio- ber 1664. ' h Pref.to Treat, of Gavelkind, & Sax. Did. ad Lector. 134- The LIFE of Mr. SOMNER. liar dally converfation, whofe good learning and good nature he could never enough cele- brate i : the only Patron of his ftudies ; and one 'who defertfd greatly from all that were ambi- tious of the Saxon tongue *. Many other worthy names rewarded the public fpirit of Mr. S owner, and contributed to the fervice he did the world: Sir Orlando Bridgman, Sit Simon Archer , Sir Richard Levefon, Walter Chetwind, Thomas Stanly y Thomas Henjhaw y Ralph Sheldon, &c. Efquires$ of Divines, Bifliop Warner, Dr. Langham y Mr. Barlow, Sec. of Phyficians, Dr. Feme, Dr.Pugh, Dr. Currer, Dr. Rogers, &c. and of our own County, all thofe Gentlemen who had an affection to virtue and good letters: The Honourable John Finch, Baron of Ford- wich 5 Sir Edward Monins of Walderjkire, Sir Norton Knatchbull of Merfham, Sir Richard Hardres of Hardres, Sir Henry Palmer of Wingham, Baronets ; Sir Criftopher Harflete of Hackington, Sir Anthony Archer of Bijhops- bourn, Sir Thomas Godfrey of Nackmgton, Sir William Man of Canterbury, Sir John Boys 1 Ibid. * Sax. Dift. in initio. ? of The LIFE of Mr. SOMNER.; 135 of Bomngton, Knight ; John Boys of Fredfield, John Boys of Hode-court, John Boys of Be- thefhanger, Edward Scot of Scotshall, /?/- chard Mafter of Weft-Langdon, Thomas En- geham of Goodneftone, James Brockman of Bitchborough, Arnold Brames of Bndge> Tho- mas Courthope of Stodmerjh, Thomas Peke of A/he, Laurence Rooke of Monks -Horton y Efquires; Edward Mafter of Canterbury, Herbert Randolph of Canterbury, William Randolph of Bidenden, Jofeph Roberts of Canterbury, John Lmch of Staple, Gentle- men, &c. Thefe all did honour to their Country, and to their Families, by ferving the intereft of Mr. Somner, and the public. Pray, Sir, accept this plain account of the life of Mr. Somner: and my hearty thanks for your affection to the memory of this good man : and for your care in publishing this.x- cellent part of his works. It is true, to fend forth every pofthumous tracl: of learned men, from loofe and indigefted papers, is an aftront to the world : and often leems a libel to the Author, and Editor of them, but where the remains of an accurate writer are left complete abfolute, and argue a defign of being wrote 136 The LIFE of Mr. SOMNER. wrote for public notice : there, to convey fuch reliques to the prefs, is an office of juftice to the Author, of charity to all the world. Tour Obliged Faithful Friend, Edm. Hall. Ox on. Feb. 15-. 1693. Rcvifed in James Street Wefhn. Dec. 2. 1725-. GAVELKIND Mr. S o M N E R'J Poflhumous Manufcripts, now m the Library of Cbrift* s-Church Canter- bury. Collections out of ancient MSS. and Records, re^ lating to the City and Church of Canterbury, and to other Towns and Churches in Kent. Large extrads out of the Chronicle of William Thorn^ with other extrads out of the Obituary of Ch rift- churcn, Canterbury > and out of theRegifters of the Churches of Canterbury and Rochefter, with Collections out of the Saxon Annals. Obfervations upon the Commifiary of Canterbury's Patent ; being a large difcourfe concerning the origi- nal Jurifdidion, Privileges, Laws, &c. of the Spi- ritual Court. A difcourfe of Tortus Iccius. A tranfcript of a large Saxon Theological Trcatife. A large Collection, in order to the compiling his Saxon 'Dictionary, in two Volumes. Scholia & Animadverfiones in Leges Henrici primi, Regis Anglic, fubneditur Gloffarium rerum & vcr- borum difficilium in didis Legibus. Dedicated to Sir Roger Twifden. Collcdions out of Tranfcripts of feveral ancient Saxon MSS. in two Volumes. His Antiquities of Canterbury interleaved, with very large additions. Lambert i Leges Saxonies. Where he has amend- ed the tranflation. His emendations upon Spelman's two Volumes, where he has Collated the text with MSS. and amend- T ed cd the Saxon Tranflation, and has gone through the whole work. His large notes upon Spelmari* Gloflfary. Some marginal notes upon the Grand cuftom of Normandy. Some emendations upon his Treatife of Garvelkind. Another Copy of Afoeutwfu*, full of Emendations and Annotations throughout. .-LJ Marginal notes upon Mr. Silas Taylors Gavelkind- Hiftory, correcting his miftakes. Marginal notes upon Brafton de Legibus Anglic. Marginal notes upon the old Collection of English Latin Statutes, printed 1556. Marginal notes upon Horn's Mirrour of ] uftice. Marginal notes upon Mr. Selden's Spicilegium ad 'Eadmerum; efpecially an- emendation of Selden's* translation of the Laws of William the Conquerour, publifh'd by him, p. 173. &c. Some marginal emendations on Spelmaris Saxon Pfalter. Marginal emendations on Fox's Saxon Gofpels. Marginal emendations on Lifle's Saxon monu- ments. Large marginal notes upon Merie Cafau&on's book, quatuor Linguis. Large marginal notes upon Verftegan. Adverfaria in Spelmanni Gloffarium, in Watpi Gldffarium, Matthteo 7 arts additum j In traftatum Gerardi Voffii de vitio fermonis. In one Volume. Leges Anglo-Saxomcd^ a V. C. Guil. Lambardo olim Edits, ex integro Latine data:. Some Colledions towards his intended Hiftory of Kent. CATALOGUE O F T HE whofe Eftates have been difgavelled. Sir Henry Wiat, ? ./#? of ^Parliament, in the 1 5* J^wr 0/* ./ Henry the VIII th , procured his Lands in Kent to be difgavelled: As did the ^Perfons here- under named, by an Aft faffed in the 3 i ft Tear of King Henry the VII th , C. 3. Thomas Lord Cromwell. Thomas Lord Burye. George Lord Cobham. Andrew Lord Windfore. Sir Thomas Cheyney. Sir Chriftopher Hales. Anthony Sondes. Edward Monyns. Edmund Fettiplace. Thomas Wilford. Geoffrey Lee. Sir Thomas Willoughby. Sir Anthony St. Leger. Sir Edward Wotton. Sir Edward Bowton. Sir Roger Cholmlcy. srnpn i Edward Ifaack. William Whitenhall. Thomas Hardrefs. Thomas Moylc. James Hales. John Baker, Reginald Scott. John Guldeford. Thomas Kemp. Edward Thwaites. William Rop'er. Percival Hart. John Fogg. William Waller. Thomas Harlackenden. Henry Hufley. Sir John Champneys. Thomas Roy don. 41$ 'Alfo in the 2 d and 3 d Tears of King Edward the VI th , another Att of Parliament faffed, whereby the fol- lowing Gentlemen obtained their EJlates to be chang- ed from the Nature 0/Gavelkind *DeJcent : Viz. Sir Thomas Cheyney. Sir Robert Southwell. Sir Edward Wotton. Sir Thomas Moyle. Sir Edward Walfingham. Sir Humphrey Style. Sir Martin Bowes. Sir Walter Hendley. Sir Henry IQey. Thomas Wilford. Thomas Lovelace. Thomas Watton. Thomas White. Sir Anthony St. Leger. Sir John Baker. Sir Roger Cholmley. Sir John Gate. Sir John Guldeford. Sir Thomas Kemp. Sir James Hales. Sir George Harper. Sir George Blague. Thomas Harlackenden. Reginald Peckham. John Tufton. Peter Heyman. John Colepeper ofAyks* ford. Thomas Colepeper his Son. William Twifenden. Thomas Darell of Scot- ney. Richard Covert. Chriftopher Blower. Thomas Hendley. Thomas Harman. William Roper. Thomas Colepeper of Bedgebury. John Mayne. Walter Mayne. Thomas Argale. And again, in the 5 th Year of Queen Elizabeth's Reign, there was another Aft . pafied whereby the Eftates of Sir Thomas Browne of JVeft-Becheworth in Surrey, and of George Brown^ Elq ; were difgavclled. And no doubt very many Eftates in Kent have been fince brought into the fame Circumftances. GAVELKYND. MONG the many Angularities of Kent, that of fo much note, both at home and abroad, commonly called Gavelkynd-, may feem to bear away the bell from all the reft, as being in- deed a property of that eminent iin- gularity in the Kentifh-mens pofleffions, fo generally in a manner, from great antiquity, over-fpreading that County, as England at this day cannot ihew her fellow in that particular 5 yet fo unhappy the whileft are both Kentifli-men and others, in the right under- ftanding both of name and thing, that although it be the daily fubjeft of every mans difcourfe, even of all profeffions, yet remains it hitherto, both in the one refpecl: and in the other, fo obfcure, and in fo much want of further illuftration to make it known, as if never yet by any ferioufly confidered of. Pur- poftng therefore to contribute my beft aiUftance to- wards a right and full difcovery ; in order thereunto, and for my more methodical preceding, I (hall branch out my difcourfe into thefe five following heads or proportions : viz. B i. The 1. The true etymologic and derivation of the name, including a plain confutation of that which is commonly received. 2. The nature of Gave/tynJ-land in point of par- tition. 3 . The antiquity of Gavelkynd cuftome, in point efpecially of partition, and why more general in Kent than elfewhere. 4. Whether Gaveltynd be properly a Tenure, or a Cuftome j and if a Cuftome, whether inhe- rent in the land or not. 5. Whether before the Statute of Wills (32 and 34 Hen. 8.) Ga*velkynd-\'x&& in Kent were de- vifeable, or not. PROPOSITION I. The true etymologie and derivation of the name, including a plain confutation of that which is commonly received* O begin with the firft : (the true Etymolo- gie and derivation of the name, &c.) By the common and received opinion of thefe dayes, obvious and eafie to be found, both in the writings and difcourfes of Kentim-men and others, this Cuftome (as commonly called) owes its name and original to the nature of the land in point of defcent. To confult (for inftance) a few of the multitude 3 of GAVELKYND. 3 multitude of printed opinions looking that way, collected from the moft eminent of our modern and late Writers, as well Antiquaries as Lawyers, and intending to fteer a retrograde courfe in this re- fearch, 1 fhall begin with one of the lateft, Sir Ed- ward Coke, who in his Notes, or Illuftrations upon Littleton, tit. Villenage, Sed. 210. verb, en Gavel- kinde, gloffeth the text thus: Gave all kynd: for (faith he) this Cuftome giveth to all the fons alike. Not long before him, another learned Knight and sir Hen. famous Antiquary, taking the word to expound in his Gloflary of antiquated words, faith, that it is termed Gavelkynd, either Quaji debitum vel tribu- turn foboli, pueris, generi, i. e. as it were of right be- longing and given (intimated in the two firft fylla- bles, 5^F el , or ppol :) to the iffue, children, or kynd*, (fignified by the laft, cyn, or kyno :) Or elfe fecondly ( faith he) from ^ipeal-cyn, i. e. given to all the next in kindred. Verflegan (to aicendr in our gra- dation one ftep higher) cenfureth the word of cor- ruption, faying, that it is corruptly termed Gavel- kynd, for Give all kynd, which after him is as much * to fay, as, Give each child his part. From whom Mr. Cambden differs as little in time, as in opinion, Britannia, in when he faith it is called Gavelkynd, that is, faith Kcnt - he, give all kynne. Before all thefe, Mr. Lambard, (the firft that undertook the etymologic, and whom, befide the former, * Judge T)odderidge, -f Dr. Cowell, * The Englifo the Authour of the New Terms of Law, and many Lawyer, p. 7 3. more, longo agmine, are known to follow) in his rre explication of Saxon words prefixed to his Archaion, verb. Terra ex fcripto, is clear for the derivation of the word from the Saxon ^ipe-eal-cyn : Credo (faith he) ut terra ilia Gavelkyn, quafi ^ipe-eal-cyn, id eft t B 2 omnibus ETYMOLOGIE omnibus cognations froximis data, dicatur. But Perambul. p. afterwards, (as if upon fecond thoughts altered in * 28 - his opinion) he coupleth this derivation with a fc- cond, and fo at length is found to fhare his opinion of the words original between two conjectures, grounded both upon the nature of the land 5 the one in point of Defcent, the other of Rent and Services. In reference to the former of which, he faith, that, Therefore the land was called either Ga- velkyn, in meaning? give all kyn, becaufe it was given to all the next in one line of kinred > or, give all kynd, that is, to all the male children: for kind (faith he) in T>utch fignifieth yet a male child. And in re- lation to the latter, he faith, that, It is well known, that as Knights- Service land required the presence of the Tenant in warfare, and battell abroad: fo this land (being of Socage tenure] commanded his attend- ance at the plough, and other the Lords ajfairs of husbandry at home : the one by manhood defending the Lords life and perfon, the other by induftry main- taining with rent, corn and visual his eflate and family. This rent (as there he adds) and cuftomary payment of works, the Saxons called sap >], and there- of (as I think) they named the land that yeelded it apolette or ppolcynb, that is to fay, Land letten for rent, or of the hind to yeild rent, &c. The Au- thour (I confefie) modeftly leaves it free to the Reader to receive either of thele conje&ures, or to refufe both, as it fhall beft like him : but the former of the two, being prima facie, of a more plaufible found and allufion than the other, (an advantage vc- ry confiderable with moft men, whofe guidance not- withftanding is not alwaycs to be followed :) and that having gotten the ftart of her fellow in time, hath not of GAVELKYND. j not faii'd to keep it ever fince, having proved the more acceptable of the twain, and by this time found fo many followers, and thole, like the firft Authour, of fo great credit, as that wholbever (hall contradict the one, or difpute the other, can do neither without exceeding prejudice; fo difficult a lefibn it is with fome to unlearn, a whofe minds are as hardly weaa- 'Seetheadditi- ed from an opinion which their fancie hath once on to Dr. ca- approved, as others are from an habit or a cuftome, ofufc which if inveterate and long-fetled, though corrupt tome. and vicious, is very hardly left off, and laid afide.. Yet, as the Common Law b determines of a Cuftome, " see sir that if the rife, the original thereof can fo be traced, <** inftit. as it can appear that it firft began within time of ' *' memory, it is no Cuftome, nor fhall obtain or pre- vail as a Cuftome; fo in cafe, by tracing the prefent derivation to the well-head, I (hall (hew, together with the time, the errour of its firft original, not to be falv'd by long trad of time, (for, Quod ab initio ff.de Reg. jar' non valuiti trattu temforis non convalefcit :) I truft 1- . quod ab I fhall not fail, nor fall fhort of what mine endea- vours drive at in this matter ; the weaning (I mean) of fober and judicious minds from an opinion fo erroneous and ungrounded as this, I doubt not, up- on trial, fhall appear to be, though thus long con- tinued, and in it felf fpecious and plaufible enough. However, being convinced in mine own judgement of the errour, that I may not feem to fwallow it for company, to the prejudice of truth, for that (I fay) if for no other reafon, I have refolved to proteft againft it : and yet, not to feem /ingularly affefted without a caufe, I fhall not do it by a bare denial or diflent, as he that thought it fufficient for B ell ar mines confutation to give him the lie, but "the ETYMOLOGIE but by repre fenting withall my inducements thereun- to, I hope to put the matter out of doubt, that I have ftudied the Readers fatisfadion herein as well as * Duvenus, my own, by a learned mans c example, whofe words Comment, m m a ftfa ca f e as very a pn O fae in this, I fhall here Tit. dePaftis, r i r r A i r^+r P. 49. 2. borrow for the clofe of my Apologie : Etjt me non lateat, (faith he) quam lubrica, plenaque difcriminis res fit, qua per tot fecula, tot homines eruditi uno confenfu probarunt, rejicere velle, rat tones tamen eas in medium adducere vifum eft, quibus adduflis hanc interpretationem damnare aufus fum. Nor is this (I take it) magno conatu nugas agere $ the difcovery and refutation of popular errours having been a task for many worthy pens, in cafes of as fmall concern- ment as this perhaps may feem to be. To the mat- ter then. Whether the name of Gavelkynd was at firft im- pofed with, or in refpeft to the nature of the land, in point of defcent, or not, is indeed the matter in queftion. The common opinion (I confeffe) affirms it, wherewith joyning ifTue in the negative, I fhall endeavour to refute it by a double proportion; one negative, mewing that this is a wrong, and mifta- ken; the other pofttive, or affirmative, declaring what is the right and genuine conftru&ion of the term. As for the former, though it carry with it a feem- ing allufion to Gavelkynd in found, yet if we look advifedly into the true nature of it, we may, and peradventure muft, conclude the etymologie from Give-all cyn, Give all-kynd, or the like, unnatural at the leaft, and far fetcht, if not violently forc'd. For firft, admitting Kind to fignifie a male-child in the Dutch or Belgick tongue, as it doth not more than of GAVELKYND. than a female, being a word common to children of either Sex (Knecbt indeed with them, as Cyiht with our Anceftours, the Englifh-Saxons, is of that d fignification : ) yet is not this kind of land fo re- d Sec ftrained in point of defcent onely to the males, but ?^J n ' verl * that (as in the cafe of land defcendible at the Com- mon Law) the females in their default, that is, where the males are wanting, are capable of fucceffion to it, and in the fame way of partition with the males. Nay, is any of the fons dead in the fathers life time, leaving a daughter behind him, fuch daughter (hall divide with her uncles in this land. What then > Lamb. Per- fhall we admit kynd\.Q ftgnifie the ifluc, be it male amb> or female ? as indeed it doth either, coming of the Saxon, or old Englifh, cennan, or cennian, parere, vid. to bring forth, whence with them the word or par- 2?' i f f rt r- SAX, m -VOCf* ticiple jpjiumcenneb, for the nrft- begotten, or firft- born, ancennefc., for the onely begotten, eop^cenb, terrigena, one that is born, or bred of the earth ^ yet is not this land fo tied to the iflue, but that in default thereof, /'. e. where that is wanting, fuch as be in the tranfverfal or collateral line (as in other lands defcendible at the Common Law) may and do inherit it: as (for inftance) when one brother dieth without iffue, all the other brethren may and do inherit, s doth their refpecl:ive uTue too, in cafe of their default, jure repr#fentationis, but with this reftriftion in the nephews cafe fucceeding with their uncle, viz. that the defcent is then in ftirpes, not in capita. Neverthelefle, it goeth not as the Irifh c Davia Rf- c Ga e velkynd y to air the males of the fame linage, P?" s> . t l lri< ! r ,<** CuihdeGavel- (for in this, as in other inheritances, propmquter kind, foi.49. excludit f propinqmim ) nor yet neither to all die ' next in one line of kinrcd, as they pretend that arc a. $ The ETYMOLOGIE are for ^ipe-eal.cyn, taking cyn to fignifie kindred, as indeed it doth, for then brothers and fitters both, being alike neer in degree, fhould equally inherit, (a thing it feems allowed by the old German cuf- * Be morib. tome, witnefle what we have from & Tacitus ; Ha- lor * redes *fuc c efforefque fui cuique liberi, &c. not re- ftraining the fucceflion to the male-iflue, as neither *L.interfilios. doth the h Civil Law : ) whereas we know, that as ] Lfamii. hercif. by trie i F euc jal Cuftomes abroad, where males are, beds, ff.de Hb. the females are excluded from fucceflion, fo by the agnofc. i. fi Common Law of k England, women (or females) oommuni di- ^ a ^ not partake with males, according to that yid. rule laid down in the Statute called f Pr ca P- I<5 - Fosmina non participabunt cum & ibi uotom. ma/cults, which (by the way) is underftood onely * LI. Hen. i. o f f uc j 1 as are m C q Ua i deerec. But doth cyn or c. 70. Gtanvil. / , , . l , . -/Y- L li. 7.0.3. Em- kynd here intend and denote a mans iliue, the Son, foi.6/.a. Gavelkyiiders children? What may we fay then to a conveyance of land in Gavelkynd to a Guild, or Corporation, aggregate of many, fuppofe an Hofpitalj (as an inftance of that nature ihall be 'And another produced ! by and by :) they are a dead hand, how thcn is the etymologic in that cafe juftificd ? Where's the kynd) the parties iffue here, to make good the derivation ? But fmce, by occafion, mention is made of fuch a gift, or conveyance,* to ftrangers from the proper iSue or heirs, let me thus far fur- ther adde, that in cafe it be called Gavelkynd) from debitum vel tributum foboli, i. e. due, or given to the iffue, as ibme are of opinion, how comes it then to paflfe, that, as before the Statute of Wills, Gavelkynd-\zn& might by deed, or other lawful conveyance (and that 'Domino, in this cafe incon- fulto, and invito too, contrary to the nature of what with of GAVELKYND. with the Feudifts is properly termed m Fee:) be m See freely given, or fold away from the heir by the ^f" 1 '' '* cuftom to a meer ftranger, (contrary to the old p. 341. Common Law of n England, except in fome few n Gk/.i;b.7. cafes, as in Frankalmoigne, or in marriage with a **? ' mans daughter, a reafonable part might be given* with fome limitations and diftin&ions between Land of Inheritance and Purchafe :) as now fince the ftatute of Wills, (if not before, as fome of late feek to perfwade us, a matter which I fhall referve altiori indagini:} it may be, and daily is by de- o s*ethej-Pro- vife of will and teftament; How is the next heirs p rition - right to this land preferred, when there is that freedome of giving, or devifing it away ? Or how can this liberty and that etymologic confift ? Yet further, doth not Mr. Lambard fomewhere P fay, p p cr ambul. that no Gavelkynd partition could be challenged, p- .T44- but onely where the cuftome of divifion had pre^ vailed, and that Gavelkynd was not tried by the manner of Socage-fervices, but onely by the touch of fome former partition? If fo, no land then could properly be called Gavelkynd, wherein this cuftome of partition had not yet obteined : what {hall then be thought of thofe new created Tenures in Ga- nothing lefTe : for where can that be found in Gave/kynd-hnd of novel Tenure, for want of that competencie of precurfory time of C them The ETYMOLOGIE them neceffarily prefuppofed (to frame the cuftome in) who conceive the name taken from fuch ac- cuftomable partition? Moreover, if partition were the thing that gave name to Gavelkynd, then fhould all partible land wherefoever be fo called : but there is in parts abroad (out of Kent) partible land not called Gavelkynd. Ergo, &c. For the affumption fee the Stat. 32. Hen. 8. cap. 29. purpofely made to change the cuftomary defcent of the land of Ofweldbeck Soke or Lordfhip in Nottingham- Lib. 3, fol. (hire. And what doth r Bratton intimate leflfc in 74.a- hisjtcttt de Gavelkynd, vel alibi ubi terra eft far- tibbilis rat tone term ? Adde hereunto, that the word, as to the main part of it, Gavel, frequently occurs in the old records of fome manours out of Kent, fometimes fimply, but for the mod in com- pofition ; for example, Gavel-erth, Gavel-ate, Ga- vel-lond, Gavel-man^ Gavel-fwine, Gavel-wood, Gavel-rod, &c. (of which more anon.) And (hall the fame thing, (contrary to that rule of Law, 1. i. ff. De rerum permutatione) diver Jo jure cen- feri? For I fuppofe none will render it there (be- ing out of Kent, and where no Gavel-kynd parti- tion takcth place) Gife-eal. Nor will this deriva- tion any better (land with Gavel, where it helps to the compofltion of fome words here ufed in Kent, in former times at leaft, befides that of Gavelkynd, fuch as are all or moft part of thofe afore-remem- bred, to which I may adde Gavel-rip, Gavel-ote, Gavel- fefler, Gavel- bred, Gavel-bord, Gavel timber, Gavel-corn, Gavel-refter, &c. whereof alfo I fhall intreat further by and by. Is it then (laftly) to be fuppofed, that the lands meer defcent in this kind to all the heirs alike,, fuppoftng a. plurality of heirs, was of GAVELKYND.' it was all the regard thofe Anceftours of ours had to fway and regulate their judgement by, to whom the name, the term, doth owe its firft original? Was that in probability ground enough to fatisfie them of the congruity and futableneffe of the name to and with the nature of the thing named, as names we know fliould { be ? Vtx credo. I doubt t Conveniunt it for my part. In brief then, to recoiled what hath been faid : i. If females are capable of this fucceffion, as well as males, where the male iffue faileth. 2. If col- lateral kinred are capable thereof as well as thofe in the defcendent line, where fuch heirs are want- ing, (in both which kinds Gavelkynd-\a&& differs not from that at the Common Law:) 3. If Cor- porations may hold land in Gavelkynd. 4. If fuch land may be pafied away to meer ftrangers from the right heirs. 5. If none may properly be called Gave Iky nd-\z\\A, where an accuftomable partition hath not made way for it. 6. If there be partible land elfwhere (out of Kent) that is not called Ga- velkynd. 7. If Gavel (the fore-part of the word) found in fome Records of land out of Kent, and of others in Kent, will not bear the derivation of it from Gife-eal, without abfurdity. 8. And laft- ly, if names are to be impofed with refped to the nature of what is f named, then is Gavelkynd y af- r Nomin* cum. ter thcfe mens premifed derivation, in fome fort a re , f f enf i* n ?> r n - Pl*'o de Sapi- very leant, narrow, and partial, in other a molt in- cnt< congruous and improper term to exprefife the na- ture of the land by. Surely, there was fomewhat more peculiar to Gave Iky nd-\z\\<\, and of more note and eminencie in it, better ferving to diftinguifh it from other kind of land, than this derivation of C 2 theirs The ETYMOLOGIE theirs feems to intimate, and which firft gave occa~ iion to the impofition of that name upon it, which leads me to my other, the pofitive, or affirmative proportion, afferting the true fenfe and conftruftiort of the term, and fhewing whence it was at firft im- pofed, and afterwards continued, what Wherein I muft confeffe, Mr. Lambard was as happy to go right in the latter of his two conjec- tures, as he was before unluckie to miflfe of the right in his former, yet in this paffively unhappy though, that the former, through the advantages afore-mentioned, wholly took, and was accepted of all, whileft the latter was received and embraced of none : but no great marvel, fince, whileft fome, through ignorance could not judge of, others haply for company, would not queftion fo plaufible a de- rivation. But to the purpofe. To fuch as are any thing vers'd in Saxon monu- ments, Gafol is a word very obvious, but varied fometimes in the Dialed, as being written now Spcl, anon auel, here pjpul, there pjce). I fliall give you a few inftances where it occurs, and in what fenfe. Tribute mentioned in the 17 of St. Matthews Gofipel, verfes 24, and 25, as alfo in the 22 of the fame Evangelift, verfes 17, and 19, is in the Saxon Tranflation of the Gofpels, turned saj=ol. In the 25 chapter of the fame Gofpel, at the 27 verfe, it ferveth to exprefle what there in our modern Eng- lilh Tranflation is called, in fome books, advantage, in other, ufury, agreeable to that in the Saxon Pfal- ter, Pfal. 54. verf. n. where ufura in the Latinc, in the marginal verfion or reading of the word, is rendred auel. gapola occurring in the firft of King Wtthreds Laws of Sir Henry Salmons Edition, in the of GAVELKYND. 13 the firft Volume of the Councils, pag, 194. is of that learned Knight expounded to us by Redditus *vel ^Penfiones, as it is again in his Latine Verfion of PopCitf*r0's decretal Epiftle, pag. 164. of the fame Councils, by Redditus. In an old San&ion of King Edgars, recited by Mr. Selden in his Notes upon ^/Edmerus, pag. 153. what is there in the Latine read folitus cenfus, in the Interlineary Saxon Ver- fion we find rendered there ^epunhc ppul. Here- unto I might adde heaps of inftances taken from the Saxon Laws, the Mare claufiim, and elfwhere, but I forbear to exfpatiate : and to be fhort, Gafol is a word, which, as Gablum in Doomf- day- book, the skilful in the Saxon tongue, with Sir Hen. Spel- man elfwhere, turn by what Gabella is expounded cioflar. verb. abroad, viz. Veftigal, e Portorium, Tributum, Ex- G * eU "' attio, Cenfus, in Latine, but in Englifh, with Ver- ftegan, Tribute, Tax, or Cuftome, to which with Mr. Lambard, and f Sr. Edw. Coke, let me adde, f Peramb. p. Rent : witneffe, befides the former quotations, what f*^ occurs in an ancient will or deed u of one Athel- foi. i 4 z. a. ' wird, the Donor of certain land at Ickham in Kent " r " ^ to the Cathedral at Canterbury, in the year of mans redemption 958. where you may read: Peprep hir t>ae Gabpi^ gip he libbe \t bpuce pfS J>one ^auele )>e hie j" ^ecpe)>en if, j?ec fyrb v. punb, ~] cache ^epe enne &a \fort} he$ pepm into j?an hipen, ^ if J).mne x!. fe ftepr e^b, &C. And anon after again : F 1 )* ^ ane S^leke ^auel ^e hiep biennen ^ecpe ben ir, &c. The former of which paf- fages, under favour of the skilful in that language, I fhall render thus in our modern Englifh : After his dayes, (or death] Eadrith, if he live, fhall enjoy (or ufe) it, yeilding that rent which is impofed on it, that is , \\jpounds, and every year (01 j>earfy) one dayts 14 The ETYMOLOGIE dayes farm (or virtual] unto the Covent, that is, Conteining xl (mcafures called) Sextaries of ale, 6cc. And the four gallons, ] a tter thus : With the fame (or like] Rent that here- cap. i2*. ' in is appointed. Let me adde what in another like Record, both for time and place, occurrs thus. Anb eptep hipe bpegpe bage uo fe apcebircop 6abp]?e J>ej7a, ip he lang libbe 'Sanne hi, o^Sep hpohif le ^Sanne by, bute fume op hipe ppenb^Setlonb on 'Saj- apcebircopej- gemefce opgon ma^e Copi^ten jauele, o^ep ro o^Sep popepepbe, ^po hit man^anne uinben ma^e pi^S ^Sane apcebij-cop 'Set ^anne libbe. That is, And after both their dayes (or deaths} let Eadjtth the Arch-Biftop, if he furvive them, have (or take} thefe lands, or elfe his Succejjour for the time being, unleffe fome friend of theirs, by (or with] the Arch-BiJhops favour, may continue to hold that land at (or upon) the accujlomed rent, or upon what other contract (or condition} may be had (or made) with the Arch- Bifhop then living, (or, for the time being) I (hall adde but one inftance more from the grant of Bock- ing (a known place in Eflex) to the fame Cathedral, by one Ethelrich, in the year of Chrift 997. Anb ic m ^Septo tpey p hibe J>et Ga&pi^S Aiieleteche ^epe mi6 hialue pun&e. That is : And I alfo give thofe two hides (of land) that Eadrith renteth (or hireth) yearly for half a pound. So that to me it feems clear, that ponere ten am ad gablum, is as much as to hire, or let out land by or for rent or farm, and by confequence, terra ad gablum pojita, taken in its proper and genuine acception, is land hired, or Jetten out to farm, or for rent. In the latitude of the word it comprehends befides, all cenfual, or tributary land, as alfo what we call cuftomary land, (in that fcnfe wherein Confuetudines, Cuftomcs, de- 4 note of GAVELKYND. if note * Services) and fo takes in all Rent-fervice land, * coke, inftit. which with our Saxon Anceftours, who called the p> 2< p * * 8 ' rent or fervice paid or done for fuch land, y lanb- ^ speim. GloC gabel, and lanb-^apol, was, by a tranfpofition of the in voce - fyllables, called and known by the name of a F -- lanfr, or the like: z butan 'Sam ceople j?e on gapollan&e z Lami.ArcM- pt- i. e. E#r^ /^ Ci&0r/* (or Countreyman) that ^^/-"P- occupieth cenfual land, as one would fay now, Ex- cept the Country Fermor, or the like. He feems by this to be properly un lanfcaen&, i. e. one that had no land of his own, fuch a one as had, being cal- led lanb-agenb-man, i.e. t err propriet arms , a landed man, as the word is (I take it) to be rendred, not Viator ', a way-faring man, or the like, as fome a have * speim. GlofT. guefled. But to keep us to our Gafol, within and 1Q voce * under which term and notion, not onely the gene- rality of rent and cuftomary, whether payments or fervices, was comprehended and comprifed, limply 5 but what we at this day call Rent-corn, Rent-honey, Rent-barley, and the like, the fpecial and particular rents and fervices, I mean, by the cuftome of fome manors y elided by the Tenants to the Lords there- of, though now for the moft part turned into mo- neys, were in elder times, in compofition, called Corn-gavel, Hunig-gavel^ Bere-gafol, &c. Without impertinencie I hope, I fhall here prefent the Reader with a lift of as many of them, as with much con- tent to my felf, I have ranfacked old Records to find out for this purpofe, with an aflay of mine own at their feveral expofitions, and they are di- vifible into two forts, the one beginning, the other ending with Gavel. Both of them follow. Gavel The ETYMOLOGIE Gavel- 'cornc. crth. rip. med. ote. dung. rod. tymbcr. refter. bord. fwine. wood. fefter. werk. noht. fother, bred. Wood- Work- Swine- Corne- Peny- Malt- Lef- Leaf- Hunig- Were- Twy- Bere- For- GaveL Gavel-corn. In the lift of the Rents and Services reckoned up in a Lieger-book of the Church of Canterbury, as charged upon that Churches manour of Adefliam in Kent, this in particular thus occurs : Item de Ga- vel-corn 66. fum. DoubtlefiTe it is the fame with that in a compofition made between the Abbot and Covent of St. Auguftines at Canterbury, and their Tenants of Minder and Hengrove in Thanet, Corn-gavel, anno 1 9. Hen. 6. called Corn-gavel, and there thus defcribed : Et quod quatuor Swilling* & ditnidia, & quart a pars unius Swillinga refidux tenebantur & tenentur de prtediftis Abbate & Conventu per Jidelitatem & relevium, & per redditum & fervi- tium vocatum Corn-gavel, viz. reddendo eifdem Ab- Conventui, & fuccefforibus fuis annuatim, in iinga earundem 4. Siuillingar. Quindecim quarte- ria & quinque bufchellos ordei palmalis, & 1 5 quar- teria & 5 bufchellos avenarum, & de pr^dicJa me- dietate & quart a parte unius f&illing i. e. as I conceive, ex debito, and without fummons :) and with allowance of (more than regularly was af- Et omnes u~ forded in the other a fervice) a coredy, i.e. diet, or atts deiftoju- yiftual, (fometime called Benebred\ during the em- go debent arare t . .. . ' r . ., fardart, femi- ployment. Glanvils precarws carucarum jormjeca- n*re, de femim rum ^ lib. g. cap. 3. may hence be undcrftood. Mat- tkvw Tar is in his Hiftory of England, pag. 895. of the laft Edition, making mention of a Breve inau- ^tut*, (as he there cals it) i.e. an unheard of Writ, nour. iffued by Hen. 3 . recites this as a part of it : JMh lifer inquiratur de carucis precariis, which by the learned Authour of the GloiTary, at the end of the work, is thus illuftrated : Erant & precaritf (faith he, fpeaking of feveral forts of Ploughs) quas fcilz- * should he not cet in necejfitate aliqua eminentiori, colonus unus a, "^^ have proximo b precario mntuabatur. Hence the phrafe in laid, Dommtts * i j y- n i -^ i /* i L- *i> homintim many old Cuftumais and Rentals of plowing this or /'">? that of GAVELKYND. that quantity of the Lords land by his Tenant, de frece, de precaria^ ad precariam y and the like. In precariis carucarum & in auxilio herciandi vj.fol. &c. & quilibet tres preces, i. e. (faith the old marginal Glofle there) quando rogan- tur per fervientem Curia y debent metere. Jive aliud facert quod expedit 'Domino per tres dies, & fi no* luerint facere, pojjint art art, &c. As I gave you fome inftances before of Gavelrip, fo I might alfo of Bedrip ; but, for brevity fake, I will onely re^ fer you to that in Sir Hen. Spelmans Glofiary, verbo Bidrip. Bidripa, which being barely mentioned there witlv out expofition, may hence be underflood. And as Bene in Benertb is of a Saxon original, fo like- wife Bede here in Bedrip 5 and indeed they are uni>- vocal, drawn (this) from the Saxon bibban, petere, rogare, and applied to this fervice upon the fame See speim. ground that bybel, to a Crier, Beadle, Summoner, Gipffa. in Be- Bailiff e, fo called from his office, which is to warn> liimmon, give notice, &c. as thefe Tenants were to be warned, fummoned, in a word, bidden, to come and perform this fervice : Et de Cxcix. ope~ ribus magnte precarite provenien. de omnib. tenenti- bus Doming tarn liberis, quam nativis, infra domi* mum 'Domini, quorum quilibet domum habens de quo fumus exiit, inveniet unum hominem ad mag- nam precariam, Jt ad hoc fummonitus fuerit, 6cc. as in Archiv. it is in Accompt f of the manour of Harwe, now called Harrow in Middlefcx, anno 21. Rich. 2. A fervice of much affinity with the former. In * in Archiv. an Accompt-roll * of Terring manour in Suffey, mno j x ^ $#. i . it occurs thus : Confuetudo me- tendi of GAVELKYND; 11 tendi qua vocatur Gavelrip, follows Confuetudo falcandi qua vocatur Gavelmed. And anon after: Et pro una feptimana dum falcatur ftipula qua ianuopcra.: fdanuopera^ the other by his carriages, thence termed Carropera, of GAVELKYND. j Carropera, and they both met (I take it) in Villeins Carropcra. called Gaigneurs. In an old Cuftumal of our Cathedral at Canter- Gavel- noht. buries manour of Clyve in Kent, I find them thus Gavel fother> coupled : 'DeGavelnoht velGavelfotherdeOftreland. The latter feemeth to expound the former, (hewing them both to import what at this day we call Rent- fodder : the latter word in which compofition com- eth (as I fuppofe) of the Teutonick Boeder, or/the German Fitter, which we at this day pronounce Fodder. Of the Feudifts it is called Fodrum, to Fodmm. whom I refer fuch as defire a further explanation of the term, wherein the learned Hotoman (I take it) is more copious than the reft, in his Commentary ^De verbis feudalibus, in voce. Let them alfo have recourfe to our learned Gloflarift, in verbo Fodmm. In the Cuftumal of the fame Churches manour of Ga?el-bred. Chartham in Kent, it occurs thus : Allocantur per annum pro Gavelbred ad herdemet. iij. fum. dimid. It is the fame (I take it) which I find elfwhere thus exprefled : In pane ad Gavelbred, de confuetudine arantium & metentium, ij. fum. So an Accompt- roll r of Charing manour in Edw. i . time. Nor is r ubi fup." it probably any other than what in the Cuftumal f f in Archir. of Weft-Parlegh manour in Kent is termed Aver- bred. Allocantur per annum pro averbred, iij.s. ij.d. It feems to be a proportion of food or vidual al- lowed to the bafer fort of Tenants, fuch as the Cuftumarii, Cotarii, Villdni, and the like (the Gaigneurs) towards their coredy, or fuftentation, during their employments in the Villein-fcrvices of their Lords, fuch as thofe reckoned up by the Au- thour of the Mirroir, chap. 2. feft. 28. where he faith : Et afcuns per 'villeins cuftomes d' aner y ower, E charrier, ^6 The ETYMOLOGIE chanter, farclir, fauchir, fcier, taffer, batre, OH tielx autres manners d' [ervices, which were not alwayes attended with fuch allowance ; whence my Authour goes on, adding, & afcun foits fans reprife d' man- ger. And thus far of the particular rents and fer- viccs, whofe names begin with Gavel, to which I might adde that of aj:ol hpirel, occurring in the Laws of King Ina, cap. 44. Now to proceed to thofe ending with it. Of which the firft four, {Wood-gavel, Werk-gavel, . Swine-gavel, Corn-gavel) having their feveral expo- Corn-gavd. fkions in their proper places, viz. in the former lift of fervices, whofe names begin with Gavel, I paffe from them to the reft of like termination. Peny-gavd. In the Conquerours, and fome fucceeding Kings Charters, made to St. Auguftines Abbey at Canter- bury, the prefent fervice occurrs by the name of Gabuliim denariorum, the tithe whereof here except- ed from thefe, was elfwhere granted unto other Monks, whereof fee Mr. Seldens Hiftory of Tithes, pag. 321, 330, 331. It was a rent ufually referved and paid in money, witnefle the mention and de- fcription of it in that compofition, between the Abbat and Covent of St. Augiiftines and the men of Thanet, whereof before in Gavel-corn, and fpeak- eth thus : Tenentur de pr correcting, reads Fildale, and is in fome fort followed by Sir Edw. Coke, Inftitut. part 4. pag. 307. With the Varia, leEtio before Braffon, I fhould rather read it Gild- ale, and then indeed, as it comes neerer the other Scot-ale, fo with that better anfwers to our prefent Bere-gafol ; Gild, Gafol and Scot, being as it were Synonyma, and univocal. Obferved to be alwayes paid by the Tenant per avail to the mefne Lord, not to the chief, and thence called in fome old records and deeds, Forif- gabulum, quaji extra (vel prater] gabulum quod 'Do- mino capitali debetur : juft like the French mans Surcens. Will you have an example? John then the fon of Richard at Horsfald, by his c deed, dated anno 1242. gives to War in of Stablegate, a parcel or land, to be holden to him and his heirs, or to whomfoever he fhall give, fell, or afligne it, (a claufe without which, by the account of thofe elder times, land was not alienable from the proper d heirs :) paying to the Prior and Covent of Chrift-church Canterbury (Lords, it feems, of the Fee) certain an- 3 nual of GAVELKYND. 31 nual rent and hens, and to the Feoflfor and his heirs j.d. yearly, de forgabulo, &c. Some other inftances of this kind might be added, but I muft contract, parting over Metegavel, whereof mention is made Mete gaveL in the old GlofTary, at the end of Hen. \ . Laws, and there in Latine rendred Cibi gablum. Now a word or two of Gavelet. This, I muft tell you, was no Rent or Service, but Gavciet. betokeneth a rent or fervice with-held, denied or Ga "* - deteined, caufing the tenements forfeiture to the Lord*; whence thofe words of Fleta, reciting the Statute 'De Gavelleto : Et ex tune vocentur tene- ment a ilia (not Forfcheke, as in Tottells Edition of the Statute, followed by Cowell in his Interpreter, but) Forisfacta. See Fleta, pag. 119. It is taken (I confeffe) of fome for a Synonymy with Gavel- kynd, and to import land letten for rent, or the like s and per me licet, the acception fliall paffe for me, as warrantable enough from the latitude of the term; but in the fence wherein the Statute (io.Edw.2.) and other ancient records (all that I have ever view'd) do take it up, it feems to carry no other meaning than the deteinment of rent or fervice, whence that of e Sir Edw. Coke: Gaveletum (faith he 5 I adven- inftit; par. ture to correct it fo, as fuppofing it corruptly printed ? a g- Gamelletum) is as much to fay, as to ceafe, or let to fay the rent. Breve de Gavelleto in London eft breve de Ceffavit in biennium, &c. pro redditu iju- dem, quia tenement a fuerunt indiftringibilia. Tflfc he. In the Kentiih Eyre of Hervicus de Stanton, recorded in a Manufcript of St. Auftins at Canter- bury, among the Pleas there concerning the Abbat and Covent, pag. 106. it occurrs thus : Et poftea per quandam confuetudinem qu a MaileY, or Mailman. The word me Glfgaji heom beher. i . (according to the fame Latine Hiftories) ClaJJis Algari Comitis Leogeceftram deveffaj ftipendium y quod eis promife- rat, ibi expeflavit. By this time, the Reader is fatisfied (I hope) touch- ing the true conftru&ion of Gave/, Gafol, Gable, or however elfe he fhall chance to find it written, both as the word is taken fimply, and as it is ufed befides in compofition, in each importing Cens, i.e. Rent, either in money, provision, or works. And being thus far advanced in the difpatch of our pofi- tive Proportion (what is the true fence of Gavel- kynd] I muft now defire the Reader, in the next place to obferve and confider with me, that, as there are divers forts of land to be found, both in this County and elfwhere, by the nature of their Te- nure not Cen/tve, or CenfuaL nor of the kind to Lanc j &* .,,>, //i -/-TT> T> r Land not Cea- pay or vend Gavel (that is, men Rent, or Rent-fer- f ua j a vice, whether in money, provision, or works, as arifeth from ignoble, bafe, and plebeian Tenures, in which onely Gavel is converfant) to thofe of whom fuch lands are holden, thofe namely holden in Alo- dio, in Frankalmoigne, (or Mortmaine, as called m Hotoman. dc alfo abroad, becaufe yeilding the Lord no profit, as being in a dead hand ) in Knights- fer vice, in Frank fee, and the like.; fo is there alfo, fuch as that holden in Socage, or Burgage Tenures, or the like, (though free) which contrariwife is Cenfual, liable to Rent, in fome one or more of the kinds premifed. To diftinguiih therefore, if not generally what land is, from what is not, of Gafol-gilden nature, or of F z the j 6 The ETYMOLOGIE the kind to yeild or pay Cens, yet fpecially to put a difference between (what alone is properly and an- See sptlm. ciently called n Fee) Knight-fervice land and it, un- Gioffary, verb. fa t w hich double head is comprifed the generality wum^&Feu- ^ our whole Counties lands, anfwering, as to that ignoble, dichotomy of Chivalry and Socage-Tenures, where- unto all the land in England in the hands of com- omeis inter- mon perfons is referred, fo alfo to that known di- VCfb fti n &i n f their lands in Normandy (from whence, ujfee- as fome P furmife, we received our Gawlkyndj where- -4j. O f more hereafter) unto Fief de Haubert, and Fief de Roturier (that is the Noblemans Fee, and the Husbandman or Ploughmans Fee:) for diftinftion fake, I fay, of Cenfual or rented land, or Rent- fervice land, from what, like Fee properly fo called, being holden per liberum fervitmm armorum, yeilded no Cens, Rent, or Service, whether in money, pro- vifton, or works ; the former of the twain was cal- led Gavelkynd, that is, (as Mr. Lamfrard rightly in the fecond of his fore-mentioned conjeftures) of the kind, or nature to pay or yeild rent, or land holden, not properly in Fee; but as the Feudifts are wont in this cafe to diftinguifh contra&u fenfuali, as being letten out with, or under condition, to pay Cens or Rent, or with a refervation of Cens or Rent, like unto thofe in the charters of the Conquerour, and (his fon) Hen. i . the one to Battell, the other to Terns cenfua- Reading Abbeys, exprefly called Terra cenfuales y and there oppofed to Fee, witneflc this provifion occur- ring in each charter : Terras cenfuales nee ad feu- dum donety nee milites y nifl in facra vefte Chrtfti fa- ciatj nee de poffejfionibus Ecclefite quifquam teneat a- liqmdfeudaliter abfblutum, fed ad cenfiim annuum & fervitium Abbatt & monachis debitum. See Clement Reyners of GAVE LKYN D. 37 Reyner s Apoftolatus Benedi&inor. in Anglia, trad. 2. pag. 137, & 154. It is no fimple word (Gavelkynd] but a compound of Gavel and kynd: the latter fy liable whereof (to proceed on to that) cometh and is contracted of the Saxon ^ecynbe, a word frequently occurring in the Saxon Sermon fet forth and publiftied by Mr. Fox in hisAdsj'and Monuments, and again of late by Mr. Ltjlt, as an Appendix to another Saxon piece, a Treatife of the old and new Teflament ; in the ver- lion or tranflation of the which word they both con- cur, rendring it in our modern Englifh ^ Nature. q As doth a!fo To give an inftance or two : sepreri j-ojmm gecynbe, {^ s r ' L ^g c ve j" i. e. after true nature it; if on ecynbe, i. e. it fion thereof in is naturally, and the like. It will peradventure be his Bede > P a s- objected, that Mr. Lambard, in his Perambulation, 47I< pag. 495. meeting with the word feveral times in the Saxon will of Byrhtric of Mepham, in this of- ten repeated paflage there : innon j? ecynfc>e, al- wayes tranflatcs it, (after the old Latine verfion in Textus Roffenfis] within that kinred, and in a mar- ginal note againft it, calleth it, a kynd of gift in Cecyn Scriptu. 43,63. 73, 8a, pa. The ETYMOLOGIE out by the Legataries or Devifees, for the Devifor or Teftator his fouls health. Had it been otherwife, fo namely that kinred had been intended in that place, I fuppofe the Donor or Tcftators exprcfllon would rather have been this : innon J cvnnme, in- non "f ma;)?e, innon ^ cneonirye, or the like, words more proper (I take it) for fuch an expreflion than that of ecmbe. To proceed then, and having thus at length dif- covered from what roots the denomination of our Gavelkynd firft {prang, namely, from Gave/, and Gecynde, let us now put, or couple them together : for whofe better conjunction, and fmoother pronun- tiation, former times have filed and pared off the former fyllable from the latter word Ge, (a prepofi- tion much ufed of our Anceftours, the Englim Sax- ons, but for the moft part r fuperfluoufly :) and left it a bare monofyllable, kind, which in the termina- tion of many Adjectives, they ufed to write and pronounce cunbe, as pojiulbcunbe, ^obcunbe, eort]?- cunbe, ]^ijcunbe, &c. for fecular, divine, &c. By means of which contraction (ufual in words of this compound nature, as Wdpon-getuce, Bttrg-gemote y Halig-gemote, Scire-gere t ve, i Port-gere t ve, and fuch like, are at this day written and pronounced, Wa- pentake, Burgmote, Haltmote, &c.) the words being put together, are read G&velkynd, and accordingly, or with very little variation, conftantly written in records, deeds, and other monuments of former times. Thus (for example) in a number of deeds and conveyances, which I have f feen recorded in the Lieger-books of the Cathedral at Canterbury, and St. Auftins late Abbey there, phrafed all of them after this manner: Tenendumad (or iri) Ganelikendam. Thus of GAVEL KYN D. 38 Thus alfo in the inquifition cited and exhibited by Mr. Lambard, in his difcourfe of the Kentifti Cuf- tomes, at the end of his Perambulation, where the phrafe or expreflion of tenuit in Gavelkind, is fundry times obvious. Thus again in an ancient deed of feoffment belonging to Herbaldowne Hofpital, where- by a parcel of land is given to the poor people there> in perpetuam eleemofynam? and to Gavelkind, as the deed is phrafed. The gift (by the way) is fomewhat more remarkable then ordinary in feverai refpeds $ wherefore, and the rather becaufe it is but fliort, I think it not amifle to give it a full recital. S riant prtefentes & futuri nos flios Wilbaldi, Herlewinum fa Eilwardum, heredes fuos Thomam fa Paganum, concejjlffe infrmis de %erbalDtme, u- nam acram fa dimidiam terr J J ton, fol. 62. b. diitinguim between t'eudum novum & antiquum, as may be feen in Fulteius, de Feudis, lib. i. cap. 10. num. 72. In the next place, the Reader may pleafe x Cap. 66. fol. to obferve with me, that as * Britton diftinguifheth 1641 b - of a double tenure in Mortmaine, the one called Al- moignej or Aumone? fimply, the other Frankalmoigne ', deicribing the former to be a gift in alms, but not free alms, becaufe (faith he) a certain fervice is re- teined or referved to the Feoffor, cap. 66. fol. 164. b. fo this in hand is no alienation in Frankalmoigne : the Feoffers (it feems) not intending to give the land in that abfolute manner, but, in token of Seig- niory, to referve fomething of fervice to themfelves, phrafe their gift, not in puram eleemofynam? or in liber am eleemofynam* (one of which words, viz. y nation, 1. 2. cither pur a or liber -a, is (tome fay, others fay y both) cok e ', inftit. effential to the making it a tenure in Frankalmoigne, part i. fol, 94. and to the excufing it from fervice) with which the next following words (and to Gavelkynd) could not have conftftedj pure alms, or Frankalmoigne, ex- cluding the return of all but divine fervices and bur- 4 thens j of GAVE LKYND. 41 thens; theyphrafe it not therefore, I fay, in pur am, or liber am eleemofynam but onely in perpetuam elee- vnofynam, and toGavelkynd? by the former of thefe words, invefting the Hofpital with an eftate in per- petuity 5 by the latter, and the Reddendo following, faving and referving to themfelves a quit-rent, as it were, in Jignum domtnii 5 that is, they referved to themfelves the fervice, and granted to the Hofpitai the ufum fruttum: or they granted the wtile domi- nium to the Hofpital, and referved the direffum to themfelves. So that whereas Bratton and z others e Lib.T.c.ip. make mention of a tenure in feodo quoad [ervitia, f olt4 r 6 ; b ' Ite ? 1 J - J - - r i i_- "tr j J r '"fr-fol.iSj.b. & non in dommtco y referring to the chief Lord ; and of coke , another in feodo & dominico, & non infervitio, re- pw kting to the Free-holder, the former may here be p/ referred to the Feoffors, the latter to the Feoffees c.j-.parag.2& in this deed. But this Tarergon. And now to wind up all (concerning this firft Propofition) and not to enlarge with any further inftances (wherein I might be infinite) for afierting this truth of our Gavelkynds derivation : Gavelkynd, we fee, is the lands right name, whofe Etymologic was never wrefted to Gife-eal-cyn, whofe iignification of Cen- fiial, Rented, land, or Rent-fervice land, was never queftioned till that within our fathers memories, one and all, by a kind of errour, jure veluti fuc- cejjionis^ tranfmitted to them, run a head in a wrong and miftaken derivation. P R O- The NATURE PROPOSITION II. The Nature of Gavelkynd - land in point of Partition. [fallowing then Gavelkynd (as to the name of it) to be derivative from Partition, our next enquiry fhall be, if (on the contrary) Partition ow it felf to Gavelkynd, or to what other caufe. Before I further enter into which refearch, or offer any refolution to the Quare, give me leave to preface it with certain rules, grounds and principles, in this cafe fit to be premifed. You are then dciired to take notice, that here in Eng- land, we acknowledge no land (no inheritance) par- land, tible or divifible, but what is fo either (firft) by and J a . r . ceners Law, as in the cafe of Females, fucceeding for lack tWO-fold, r XT i 11 rr i r i J c of Males, whether in Kmght-fervice land or Socage, which in this point differ not, or what (fecondly) is fo by Cuftome, as in our prefent cafe of Gavel- kynd, and fuch like ? no parceners of land (I fay) in point of inheritance or fucceflion, but either ac- cording to the courfe of the Common Law, or by Cuftome, as termed by Littleton, and our more mo- dern books, the fame in effed with what of elder FoU 7 8,374, time, in Bratfons* language, are called, i Ratione ferfonarum, z Ratione rei $ . See SV "uero non fuerit antiquitus di'vifum-, tune primo- ^ g z ' genitus, fecundum quorundam confuetudinem, tot am hereditatem obtinebit -> fecundum autem quorundam confuetudinem, pqftnatus filius heres eft. Item fi fi- liam tantum unam reliquerit quis heredem, tune id obtinet indiftinffe quod de filio dictum eft. Sin au- tem plures filias, tune quidem indiftintJe inter ipfas di wnere f * P ra Y ta ^e notice with me, that (as /. Mr. Lambard hath it) the cuftom of Gavelkynd is general, fpreading it felf throughout the whole Shire, into all lands fubjed by ancient Tenure unto the fame, fuch places onely excepted, where it is altered by Ad of Parliament, and therefore 5. Edw.q.. 8 ; . and 14. Hen. 4. 8. it is faid, that the Cuftome of Ga- velkynd is (as it were) a Common Law in Kent. Having thus premifed, I fhall now make it my endeavour to fhape fuch a refolution or anfwer to the propounded Quaere y as may confift with thcfe principles. And briefly, my anfwer here is nega- tive, viz. that Partition doth not owe it felf barely to Gavelkynd, either ex vi termini, by reafon or force of that denomination, or ratione rei, from the nature or condition of the land j that property a- lone of the lands being Gavelkynd, or fo called, not fufficing to render it partible. Firft, as for the name, the term, that that will in no wife bear it, is (I conceive) a thing fufficiently cleared in our Dif- courfe upon the firft Propofition, wherein the term is vindicated from that miftaken conflrudion, by the errour of latter times obtruded on it, nor can fuch a derivation any way confift with the premifed principles, Partition in Gaveikynd-lzrui, from the term or denomination of it, being reducible to none of the there afiigned caufes of Partition. As incon- of GAVELKYN D. iticonfiftent alfo with thofe caufes and grounds of partition (that dichotomy or bipartite diftinftion of partible land into, i that by Law, and 2 that by Cuflome) is the attributing that property of parti- tion in Gavelkynd, to the nature or condition of the land, there being no mention of any fuch third fort of partible land to be found in our Books. If. it be replied, Yes furely ; for Brafton is exprefie for objection. a partition ratione rei vel terrte, in the places above quoted, that efpecially where he faith (as fol. 374. a.) faut de Gavelkynd, vel alibi ubi terra partibilis eft ratione terrtf. Such indeed are his words, and Solution, withal 'tis not to be denied, that fuch is the nature and condition of Gavelkynd-lmA, being not onely fubjed and liable to what the Civilians in their phrafe are wont to call, Judicium, or Attio familix bercifcundtf ; *De communi f dividunda*, the Feudifts, fsccFuiterts Adxquatio, 'Paragium, we in our language term it Dial g- P 3 " *' Coparcenary L and- fb if ting, and' the like ; but with- of Parceners, all fo fubjed to it, as that partition doth alwayes accompany land of that nature, and is indeed as in- feparable from it as the contrary from Knight- fer- Tice land. Whence then is it? Before I anfwer, obferve firft with me for an anfwer to thefe paffages m Braffon, that as before each of them, in one place, wchwefajibfrf&tasfiiri&tisjft, &afrsF L 7 6.a. antique divifa, fo likewife after them, in another h place, his tenementum partibile inter f lures coh Peramb.pag. P Mr . Lambard : Although (faith he) it were fo that the land were never departed in deed, yet if it re- main partible in nature, it may be departed whenfo- ever occafion fhall be miniflred. Granted out, I fay, and holden in terms for Cens, conceiving a neceflity of that or the like expreilion in the Habendum, or other part of the grant, to make it capable of this and the other properties incident to Gavelkynd, not intending here the very numerical word or term (Gavelkynd] but that or fome other of equivalent fence and fignification with it, for example, Red- dende fuch or fuch a fum de gablo, de cenfu, and the like (whereof, for illuftration faKe, exped fome co- and the greater part of this County ', or well nigh all, was then within this Tenure. To proceed, afcribing this property of partition in G^w/^w^-land to the cuftome of the Countrey, what ihall be faid then to the partible land (more or lefle) of GAVELKYND. lefife) abroad in other Counties > is fuch Gawelkynd- land, and fo to be called, or not? or is it from Go,- velkynd that fuch partition there obteins? I conceive not. For firft, our Kentifh Gavelkynd Cuftome, con- fidered colleftively, with refped to all its branches, is not to be reftrained to this one particular property, but (as before is intimated) confifts of many other as fmgular properties befides, and which may as well challenge a fhare and right in the Cuftomes name, as may that of Partition, fuch as is 'Dower of the Moyety, not to forfeit lands for Felony -, and the like; and though in point of partition it may be like ours in Kent, yet in other properties incident to our Gavelkynd, it might, and no doubt but doth differ from it. Befides, that fuch partible land el where fhould be called Gavelkynd, will not ftand with our premifed grounds, excluding Prefcription in Gave/kynd-l&nd, whereas in fuch places abroad, though haply not in whole Counties, yet in parti- cular Manours, I conceive it's neceflary, even in their Gauel-londs, whereof I find mention made in feveral manours out of Kent, as fome in Kent, to fhew, quod terra ilia a toto tempore, &c. partibilis fuit & partita, the accuftomable a&ual partition of it being there as neceflary to be pleaded and proved, as its capability of fuch a property. Add hereunto, that if all partible land were Gavelkynd (rendred fuch by partition alone) then were *Bratfons, Sicut ; Fol 374." : de Gavelkynd vel alibi ubi terra eft partibilis rat tone terr 11 j AJ-/-I c j- lib. i. f Gavelkyna. And if perhaps it may be found in pag.24.Ffr.Ba- their deeds, charters, or other records, yet (as one .w*'. a fait ^ in a ca ^ c not muc ^ unlike conditioned to this Hiuf- f ours, whofe words with very little variation I trat. Hift. MO- fhall therefore take up here : ) Sufpicari licet hanc Reomifen. ^p. ^ ocem plurtbus Ulorum chartis affifque publicis, non 618. num. tarn illorum quam pragmaticorum ufu ac inftituto in- ^- vettam. i. e. 'tis to be fufpeded that it had its im- pofition, and was firft tranfmitted hither by our Lawyers, who borrowed the term to make ufe of it for illuftration fake, like as of late (I am perfwad- ed) the Parliament did in that Stat. 34. Hen. 8. cap. 26. where the term of Gavelkynd haply is but borrowed, to help defcribe and illuftrate that par- tible "quality there mentioned of the lands in Wales, which I am the more induced to conceive, becaufe in a former Statute concerning Wales, namely that 2 of of GAVELKYND. of the 27th of the fame King, cap. 26. making mention of this partition, Gavelkynd is not at all remembred. In imitation then (as I conceive) of the Kentifh-men, the generality of whofe partible land of long time hath notorioufly been known by that title, and whofe lands alone of all the Counties of England at this day be of the nature of Gavel- kynd of common b right, this name or term of Ga- " cokt, inftit. velkynd in lands clfwhere of like condition i n matter of defcent, hath been taken up and is re- teined. By that which hath been faid, I may be thought to incline to their opinion, who hold that Socage and Gcmelkynd are Synonyma, terms identical, and of one and the fame fignification here in Kent, and that confequently what land here is of Gtwelkynd- nature, is of ^rag^-tenure ; as on the other fide, \vhat land is of *50r^-tenure is of Gavelkynd-m- ture. I anfwer, No : for I require in this cafe, I mean solution; * r to make Socage land here in Kent iffo faffo parti- ble, after the cuftome of Gavelkynd, that it be grant- ed out and holden in Gavelkynd* expreflely, or in e As in theAp- terms equivalent, as I faid before, yet with that di- pendl *' S( J Ip " /! o- C ' 1 T 1_ \'C J ' til. 4, 6,7, 8,9. itinction of times wherewith I there qualified it. Notwithftanding, I am not of their mind, who di- ftinguifhing between free and bafe Socage in Kent, make the natures of their defcents divers 5 the free Socage (fay they) defcending to the eldeft alone, the bafe falling in divifion between him and all his brethren. Thus d Mr. Lambard in the perfon of d others 5 to help juftifie whofe diftinftion, with the p inference upon it, he there exhibits an Inquifition taken after the death of one Walter Culpepper, making mention of divers parcels of land and an- nual 5<5 The NATURE riual rents holden by the deceafed at his death, fome in liberum feodum, others in Gavelkyndy the former of which, by the verdict of the Jury, was to go to ia which re- the deceafcds eldeft fon e alone -, the latter, in com- S^sfoUikc- mon amongft him and the reft of his brethren, ly to be here Thus the Inquifition, which (as Mr. Lambard there intended, fmcc f o ii ows \ t \ cleerly diftinguifheth free Socage from the Clan-vtll never _, 11 j . . r // r j mentions free Gavelkynd, interpreting, it feems, Lwerum feodum soc*ge, but un- there by Free Socage, and it may be rightly ; how- der the notion T , c \- rr J/--L /^\ of partible land, ever I crave leave of diilent, and (as it is but fit) as i. 7. c. i. and {hall give my reafons : For my part, I never found 1.13.0.11. p ree 5 oca g e an y w here exprefied by that term, or in Latine rendred Liber um feodum, nor perhaps to thofe of more diligence, and more converfant with our Law-records than my felf, hath it ever occurred under that notion. Nor have I met with any Free Socage, as this here, not fubjeft to the rendring of fome kind of fervice, either in denariis, or other- Liberum feo- wife. By Liberum Jeodum, I under/land fometime dum. Feodum militare, which is often in old Records cal- * in Archiv. led Liberum feodum. In a very ancient f Rental of Arcbiep. Cant. Southmalling manour in Suflex, we have this title : Liberi feodi, and under it : Godefridus Walenfis te- net 1 1 1 feodos milit. in tenemento de Mailing, & quart am partem unius feodi afud Terring per libe- rum fervitium armorum fuorum. Will de Branfa tenuit apud Adburton unum feodum milit is, per liberum fervitium armorum fuorum. And fo fome o- t Lib. f. foi. thers. Appofite here is that of & Braffon : Not an- > dum (faith he) quod in fer'vitio milit ari non dicitur per liberum fervitium, & ideo quia conftat, quod feo- dum tale liberum eft, &c. Sometime alfo by Libe- rum feodum, I underftand (what I conceive it doth principally denote unto us) Frank Fee f that is, by ^ the ** coveii inter- I erb * from of GAVELKYND; the Feudifts definition, fuch pro quo nullum omnino fervitium h flrdftatur, and therefore is of them rec- * vMus da koned inter Feudaftra, or Feud a imfrofria. And fuch as this feemeth to be meant by Libemm feo- dum in that Inquifition, becaufe it is there in ter- minis expreffed to be holden ( juft after the manner of Frank Fee, by the precedent definition of it) abfqiie aliquo fervitio Me faciendo. And if Frank Fee, then in probability not Socage : for as all the land in the Realm (fay our Books) is either Ancient "JDemefne, or Frank Fee, fo none (fay they) is to be accounted Ancient Demefne, but fuch as is holden in l Socage. Frank Fee then being oppofed to An- cient Demefne, which is Socage, cannot it felf be Socage. Nor will Braftons diftindion of Socage into liberum and villanum, applied to that difference in Mr. Lambard, of free and bafe Socage, by which the one fhould confift of money, and the other of bafe fervices, be warranted (as himfelf there ob- ferves) from the enfuing Inquifition, fome lands be- ing therein denoted to be of Gavelkynd-niLtuxc, which neverthelefTe do yeild none other but money alone, and none there of that nature charged with works, befides that of Suit of Court, improperly called Works, as not coming under the notion ei- ther of Manuopera, or Carropera, to which double head all works of this kind are wont to be refer- red. Hence let none perfwade themfelves, that Gavel- kjnd-hnd was not, or by its nature is not liable to Works : for albeit that 66. of King Intfs Laws in the Archaion, feemeth to counter-diftinguiih Gafol, and Werk and though moreover Gafolland and Gafblland. Werldand occurr in fome manours out of Kent, as I of j 8 The NATURE of a diftinft and different nature, (yet both fertile? and oppofed to what there is called terra libera, de- noting, I fuppofe, Free Socage) yet moft certain it is, that both Gablum and Of era do often meet, and are found in Gavelkynd-lz.^. Witnefle the old Cuftumal of Monkton manour in Thanet, belong- ing to the Church of Canterbury, mentioning the particulars of what fervile works the Tenants there flood charged with for the 18 Swolings (fo many *terramtri- plough-lands, I take k it) holden of the Monks, in artttromm, Gavflkvnd. Witncfife alfo this paflfage in Kins John* qumm Canttant f p J Charter made to Hubert the Archbifhop, for the >>os changing Ga f uelkynd-\m& into Knights-Fee, at large IJm'theChar- exemplified by Mr. Lambard, Peramb. pag. 531. Xe- ter of K. off*, nia, Averagia, & alia opera quxv\> in point of fervice, now differs nothing from Free Socage, as it (lands defcribed and defined of Rratton ; being fuch ubi fit fervitium in denariis, (to ufe his own words) all the Tenants burthen, his whole fervice, being onely fervitium crumcnte, pecuniary, fuch as payment of money for rent, fuit of Court, and fuch like; nay, in many grants of land in Gavelkynd that I have feen, I find no ver " of GAVELKYND.' no tic at all upon the Tenant, no covenant or con- trad between his Lord and him, to require of him any fuch bafe fervices, there being ut communiter, and regularly, a refervation onely of rent in money, fuit to his Court, or the like : yet I muft tell you (as a reafon hereof, in my judgement) that, though Gavelkynd, in the genuine fence, found land letten for gable, cens, or rent, confifting chiefly in dena- riis, (whence in an old m Cuftumal of Eaftry ma- " la Arc&ir. 1 nour in Kent, I read : In eodem manerio mutati Ecclcf ' Cant * funt ofto Cotarii fro Gavelkende. Medleferm tenet unum meffuagium, tres acras, qua folent ejfe Cot AT. mo do reddit xl. d. de gablo, and fo divers more, which haply will be better underftood, if I add what occurrs in an old Accompt-roll of the Archbifhops manours for the year 1230. in Charing Bailives re- ceipt : Et de xiij. s. iiij. d. de fine Cotariorum, ut Coteri* fu (in point efpecially of Partition) and why more general in Kent than elfwhere. After Lambard inclines in his opinion to Peramb. conceive this cuftome brought hither out of P Normandy by Odo (Earl of Kent, and baf- tard brother to King William the Conque- rour) and that we received it thence by his delivery 5 an opinion inconfiftent with the Cuftumal it felf of his own Edition, the very clofe whereof (if it may be credited) layeth challenge to the cuftome before the Conqueft. For my part I conceive it may carry an Antiquity far greater than the time of the Nor- man conqueft, being probably as old (in the name I mean, I will not fay in all the properties of it, though happily I may in point of Partition) as Ga- folland it felf, from which (if confidered in the K term) 6i The ANTIQJLJITY x term) it as little differs in fence as infyllables; to what our Saxon Anceftours called Gafolland, their Succeffours, and we at this day (for a fuller expref- fion of the nature of it) having added one fyllable, and fo calling it Gavelkynd-land. Yet I would not ' spot, in the be thought of his P opinion, who would bear the jives of the Ab- WO rld in hand, that the Commons of Kent conti- bats or S. AH- L . . ., . , ,-. ~ . /?/* at Can- nue their priviledges by means of a compofition terbury, cited entred with the Conquerour at Swanfcomb. No, for^bort'Tn unc ^ er favour, we ow them not to that, or any o- his Gioifary ther fuch like fpecious ftratagem, nor are beholding before his Ar- either to Stipand the Archbifhop, or Eeelfine the chaion, verb. ... .. p . y . o J Tenaexfcripto, Abbats pohcie to contrive, or to their and our Coun- and in his Per- trcv-mens valour to compaffe, their continuance for an>buJt pss.iS, / i T r % \ * i-/-> us in iuch a way. I am not fo prodigal of my hif- torical faith, as to caft or fquander it away upon commentitious fables : for I account this no better, however fwaUowed of the vulgar, whom I dare not to encounter in any difpute about it, as defpairing. of fuccefle, though uftng never fo effe&ual convinc- ing arguments to difingage them in the belief of it ; and therefore appealing from them, I (hall apply my felf to the more literate and judicious, by in- tendment not fo tenacious of a fpecious tradition, but that they can with patience both hear it quef- tioned, and, if occafion be, refuted j not unwilling to defert it, if, upon trial, it may prove unfound and fpurious, and accounting it as thank-worthy to Tadifcoveran difcover an old eiTOur, as to deliver a new truth, old errour as e fpecially fince truth is not more often, nor more todcKver a cafily, loft by too much altercation, than errour is new truth, contra&ed and continued by too little. I will r:ot undertake, nor do I mean to make it my task here,. to mew how it came to pafife, that Gavelkynd is in a 2 manner of GAVELKYND. manner proper, and Villenage improper onely to Kent, no other County partaking with it, either in that degree of commonnefie and univerfality where- with Kent is overfpread of the former, or in the immunity it enjoyes from the latter j the finding out the true caufe whereof hath not efcap'd my di- ligence, although my skill I confeffe it hath. But, be that as it will, and albeit I cannot in the affir- mative fhew what was, yet in the negative, that this was not the means whereto we' ow the conti* nuance of our Gavetkynd-cuftomcs at and fince the Conqueft, fhall be my next aflay to prove, and that by fhewing what more than fufpition of errour this Monkifh relation (for fuch it is) deferveth to fall under with men of unbiafled and dif-ingaged judge- ments. But firft, will it pleafe you to hear the ftory it felf, as it is already Englifhed by the illuftri- ous Author of the Illuftrations upon the Poly-olbion, pag. 302. who there fufpefts the fame as not of clear credit. When the Norman Conquerour had the day, he took his journey towards 'Dover Cajlle, that he might with the fame fubdue Kent alfo 3 wherefore Stigand Archbifoop, and Egelfin Abbot, as the chief of that Shire, observing that now whereas heretofore no Vtl- leins had been in England, they Jhould be now all in bondage to the Normans, they affembled all the County, and foewed the imminent dangers, the info- lence of the Normans, and the hard condition of Villenage : They refolding all rather to die, than loft their freedome, purpofe to encounter with the '[Duke for their Countries liberties. Their Captains are the Arch-Bijhop and the Abbat, Ufon an ap- K 2 pointed ($4 pointed day they meet all at Swanefcomb, and har- * cm** boughs, bouring themfelves in the woods, with i boughs in as Mr.LamM e[}er y mans hand y they incompafTe his way. The hath it: a likely f . , ^ \ i r "& r i r r matter, at that next day the \uuke coming by Swanefcomb, feemed time of the f# f ee with amazement, as it were a wood approach- bout' Nowm- *%g towards him, the Kentifb men at the found of for. a trumpet take themselves to arms, when prefently the Archbijhop and Abbat were fent to the 'Duke, and faluted him with thefe words : Behold, Sir 'Duke, the Kentijh men come to meet you, willing to receive you as their Leige Lord, upon that condition, that they may for ever enjoy their ancient Liberties and Laws ufed among their Anceftours, otherwise prefently offering war ; being ready rather to die, than undergo a yoke of bondage, and lofe their an- cient Laws. The Norman in this narrow pinch, not fo willingly as wifely, granted the defire : and Hoftages given on both fides, the Kentifh men direct the Normans to Roche fler, and' deliver them the County, and the Caflle of 'Dover. Thus Spot, St. Auftins Chronicler at Canterbury, living under Edw. i. he, I fay, and onely he, and fuch others as of latter times write after his copy : for before him, and in that Interim of more than 200 years, between the Conqueft and the time he wrote, no published Story, no Chronicle, no Re- cord of any kind, Kentifh or other, may be found to warrant the r relation^ a matter the whileft fo remarkable, as, if true, not likely to efcape all our Hiftorians pens that were before him, thofe efpe- f Hift.ofCroy- daily about the Conqueft. Amongft which f Ingul- fand Abbey, ^hus filence is the more remarkable, fince he is fo particular and punctual in relating and recounting the jfe^ of GAVELKYND. 6$ the Conqucrours oppugners, and their proceedings, When afterwards Rochefter Caftle, kept by Qdo the Conquerours brother, againft William Rufus in the year 1088, was by him befieged (a thing of as fmall moment at leaft as this) why, all the Stories with oneconfent were full of it, particularly Malmesbury and 'Paris (amongft other occurrences) tell of a much declined nick-name, wherewith thofe were threat- ned that fhould refufc to come to the Kings aflift- ance in "that a&ion, which the former hath Nider- ing, the latter, Nithmg, quod Latine nequamfonat, fay both, and rightly, if it come, as I conceive it may, from the Saxon m]?e, i.e. nequtiia, maUtta, as it is in feveral places found in their * Pfalter $ a pfai. 5-4. if. nick-name this, of fuch infamy, as fattened upon Pla!< rj; l - iir the moft deteftable and barbarous Villeins, fuch as gj'in m arg? * were guilty of defpoiling and rifling the dead, which the 83. of Hen. i.. Laws calleth Weilreif, a term (identical, I take it, with Walaraufa in the Legis Bohr. tit. 1 8. cap. 3. parag. i.) which Textus Roffen- Jts thus illuftrates in a place : paljieap ij- ni)m^ejr bxfee. gij: hpa o)q*acen pille &o j> mib eahra *J peopnn^ pilbonenna ^e^ena. i. c. (according to the Latine verfion in Jornalenfa, where this Law oc- currs, as the 2ith of thofe of K\w&Ethelred, atW neting :) Wealreaf. i . mortuum refare eft of us nithingi : fi quis hoc negare jebe) is that fiirely which the old GlofTary (new fet forth) at the end of Hen. i . afore- faid Laws, harps upon, in the word Refare, and is there glofled by opus nithingz, as alfo in the word We air e of. But to return to our Story, that I mean of the flege laid to Rochefter- caftle, which though of as fmall, if not lefle, con- cernment 66 The ANTIQUITY. cernment than the other here in queftion^ could find many Chroniclers to record it, and muft this needs efcape them all, till Spot had got it by the end ? Befides, obferve with me (what Mr. Selden there, and Mr. Lambard before him both note) his ,Tejiisf*ifuiin commixture of u a falfity about Villenage, affirming fi^atu^tm- lt was not i n England before that time, which is ni6.F*rinc. de apparently falfe by choice of teftimonies, both from tcftib. q. 67. our L aws anc j other Saxon monuments, fo obvious as I will fpare to repeat them, fetting that afide un- til I have difpatched the main matter of the Story, the compofition, I mean, between the Conquerour and the men of Kent, with the occafion of it, which as it wants the warrant of confirmation by other elder Hiftorians, not onely filent of it, but agreeing in afTerting an univerfal conqueft, fo in flat contradic- tion of it, we find cleer teftimony in Florentius Kent conquer- Wigomienfis and Roger Hove den, of our Counties cd by the Nor- f e n ow _f u ff erm g with her ncer and more remote msns. neighbours of Suflfex, Surrey, Hampihire, Middle- fex, &c. in the devaftations, depredations, and other miferies of a countrey invaded, fubdued, and (at leaft in fome parts) harried by the Norman Con- querour, immediately upon that fignal vi&ory of his over the Englifh, at the place where afterwards he founded that Abbey, from the Battel there fought, called Battel-Abbey in Suflex. You fhall have my v Flor. wigarn. Authours own words : Interea ( fay they, x having R foi but newiv tol( i thc Stol T of that fatal Battel:) Comes Gultelmits Suthfaxoniam, Cantiam, Suthamtunenfem provinciam, Suthregiam, Middelfaxomam^ Herefor- denfem provinciam devaftabat, & villas cremate? hominefque inter ficere non ceffabat, donee ad villam quaBeorcham nominatur, vewret: &c. To this let me add t - Jfc*- 1 of GAVELKYND. 67 add a pafTage from the Story of the fame Spot, where, after mention made of an Annuity, or Rent- charge given to his Abbey, by one Sulburga, the La- dy of Brabourne, about the year 861, he fubjoyns this : Iflum redditum (faith he) & jugum terra apud Horton? & t err am de Hengeftehell juxta Wiveles- burgum, Hugo de Monford abftulit? cut & Epiftopo Baiocenfi Willielmus Baflardus fere omnes terras Canti &c lain, followed by c Ordericus Vitalis] the Conque- n5ift.Eccief. rour, after his vi&ory neer Haftings, made not firft lib.3.pag.joi. to London, and then to Kent, but after fetling his affairs about Haftings, prefently took his journey towards Dover d by the way of Romney, where b Herewith having avenged himfelf of the favage kind of In- n , curr , eth 11 n r Malmeibury, habitants, for the {laughter of certain of hts men, foi.ud. t. by fome miftake landing at that place, (of Tiffa- where he faith, venfa called Romanarmm for Romanemm^ as of Or- tab HaflLzm- dtricus rightly named) he thence advanced on to fa via*iA, & Dover 5 whither, though a numberlefie multitude of|^^^ people had betaken themfelves, as to a place, by rortm futnomi- reafon of the caftle, inexpugnable, yet difmayed n " fP* r f&'* . , . _ LI i_ n (Conquaeaor) with the Conquerours approach, the place with all Londmium $- readineffe fubmitted to him, who, after eight dayes **' &c - fortification of it, marching from thence, at a place not far from Dover, the Kentifh men of their own accord came in to him, fware him fealty, and gave hoftages for performance. Marching then onward, and understanding where Stigand the Archbifhop, with the Earls Edwin and Morcar, and other Eng- lifli Nobles (who confpired to fet up Edgar Ethe- ling, King) were aflembled, he made towards them with a ftrong power, and fate down not far from London - 3 whence certain companies ifiuing out a- gainft him, he, with 506 of his Horfmen foon re- pelled them, forcing their retreat back into the L citie, 70 The title, not without the (laughter of divers by the- way. This aftion was followed with the firing of all buildings whatfoever behither the river (of Thames.) Pafling over which, the Conquerour removed to Wallingford, whither Archbifhop Stigand, and other of the Englifli ISfobility followed him, and deferring young Edgar, made their peace with the Conque- rour, receiving him as their Sovereigne : whofe ex- ample the Londoners foon following, rendred them- felves alfo to the Conquerour, and (as the Kentifh men had done) delivered him hoftages j fuch, both- for number and quality, as he required. Thus Gu- Uelmus 'Piffa-venfa followed (as I laid) by Ordericus Vitatisy a writer of, as it were, the fame time. By which relation it is evident, that the Conquerour intending for Kent, did not fet out (as Spot infi- nuates) from London or thofe parts, but on the con- trary ere he went to London, made himfelf fure of Kent, by taking Dover caftle, (the Lock and Key, c Mattb. Paris, as one e cals it, of all the Kingdome) and from . t h ence? after theKentifh mens voluntary fubmiflion to him, marcheth towards London. Now, from the filcnt palling over moft of thefe particulars in other writers, of and about this Authours time, all fave onely Ordericus Fitalis, let none call the truth of them in queftion, fince their undertakings were for compiling a more general Story, than that of the Conquerour alone, who therefore were more fuccind and fummary in their relations, advifedly (by their own confeflion) pretermitting many par- ticular pafTages. Ingulphus, after a fummary rela- tion of the Conquerours ads at his firft coming in, excufeth his brevity thus : Summatim namque ac carftim vifforiojiffimi Regis gefla narro, quia fecum . L 2 quities 71 The ANTIQUITY quities of Canterbury, pag. 61.) fmelling too much of the Legend, and invented doubtlcfle for the greater glory of the Abbey. Now defcend we to the refult of the Story, and the inference upon that meeting, made by Spot and * Lumb. Per- H n i s followers, which in fhort is, that hence, or Suthor^intl- nereu P n Kent reteined her priftine priviledges, in- quit. Britan. (lancing (fome of them) in Gavelkynd for one, and ' particularly that hence, as formerly Kent (partici- pating in common with the whole Kingdome in that point) had no Villeins, fo by that means from henceforth (by a fingular priviledge above othec counties) it never had any. Indeed, (which I note as adminicular to this aflertion) among the articles by which the Auditours of our Cathedral were to take accompts of the Bailives of that Churches ma- nours out of Kent, recorded in an old Lieger there, thefe are fome : i . *De Cenfariis Nativorum quod fojftnt exire tenuram Domini ad labor andum & ope- randum exfra, & ftatim poft opera redire. 2 . *De finibus Nativor. fro fliabus fuis marttandis infra te- nuram 'Domini. 3 . *De finibus Nati'vor. foft mor- tem patntm fuorum, quod fojjlnt habere terras quas jpatres habuerunt y tenendas ad voluntatem XY peb&ey f albenb f y, by fatifdationetnquc accipiant de celebrandis nuptiis. The old verfion here is : Et excipiat inde plegium qui jus habet in vadio. I once pitched upon this Verfion : Satifda- tionemque inde accipiant qui fponfalia ordtnaverint, i. e. Taranymphi. But leaving that, to return to our purpofe. By what is premifed, I conceive we have ground enough to conclude againft what Spot Angularly delivers touching the Conquerour and Kentifh mens meeting, with the manner, product, and refult of itj and confequently, what is built upon it, our counties reteining her Gavelkynd- cuftomes and priviledges by means thereof. But after this pulling down with one hand, to help build up another while with t'other, and not to leave the caufe of our enjoyment of thofe Liberties (that efpecially of Partition, the more eminent property in Gavelkynd] thus uncertain, let us enquire into the carriage of affairs of this nature about the times of the Conqueft, when they fay we obteined to preferve and continue this (amongft the reft) by compofition with the Conquerour, whileft the reft of the Kingdom was deprived of it. I fay deprived, becaufe as P 'Privatio prafupponit habitum, fo thofe L. deccm i who arc of this opinion take it for granted, that be^ fi - dc ^'P" 1 - r r /-. n i c manumilTio- fore the Conqueft, by vertue of a national cultome firft induced by the Saxons, and by them traduced j from the Germans, intended by Tacitus in his Ha- redes fuccefforefque fui cuique liberty &c. and after- wards incorporated into our Laws by ^ King Ca- q LL. nutus, inheritances defcended and were partible af- M tcr 7 8 The ANTIQJJITY ter the nature and manner of our Gavelkynd, at this day. So of late (amongft others) Sir Hen. Spel- man, in his Gloffary, verb. Gavektum ; 'Daniel in his Hiftory, fol. 38. Verftegan in his Antiquities, pag. 57. Archbifhop 'Parker in fasAntiquitates Bri- tannice ejren, i. e. equally, but fpife pihre; in the former more explicitely thus: aelcum be J?cep mseje, &c. i. e. (ac- cording to the old verfion in Brant ft on) ttnicuiqite fecundum modum qut ad eumpertinet. Here is now no equal divifion fpoken of, no equalling the young- er with the elder brethren, or the like. But the eftate is to be fhifted j*pi]?e ruhre, i. e. according to right, juftly, or if you will ( after the old verfi- on of the latter Law in Brampton, being the fame 'Archaion, fol. verbatim with that in Mr. Lambard* elfwhere) 13 *' 3< recite, every one to have his due, haply after a Geo- metrical, not Arithmetical proportion. Again, not " ec l ual P ro portion, in point of goods at leaft, for POTOL de Ga- each was to partake therof, (as in the Gavelkynd foL49, partition f in Ireland, each one a part according to of GAVELKYND. to their quality, degree, or defert) fro rata, happily their reafonable part, whence indeed fome do fetch and ground a writ we have among us, called Rati- onabili farte bonorum (concerning which there is a queftion in our books whether it lie by the com- mon Law, or by the cuftome onely of fome ' were, a Codex Legum, (whither we may refer the original of Magna Chart a) a Standard-law to be M 2 currant 8o The ANTIQUITY currant over all the Kingdome : Before thefe Col- lections (faith he) of the Confejfours, there was no univerfal law of the Kingdome -, but every federal 'Province held their fever al Cuftomes, all the Inha- bitants from Humber to Scotland ufed the Danique Law, Merchenland, the middle fart of the Count rey* and the ft ate of the Weft Saxons had their fever al Conftitutions , as being fever al 'Dominions, and though for fome few years there feemed to be a re- duction of the Heptarchy into a Monarchy, yet held it not fo long together (as we may fee in the fuecef- Jion of a broken government}, as to fettle one form of order currant over all, but that every 'Province, ac- cording to their particular Founders, had their Cuf- tomes apart, and held nothing in common, (bejides Religion, and the Conftitutims thereof} but with the univerfality of Meum & Tuum, ordered accord- ing to the rights of Nations, and that Jus innatum, the common Law of all the world, which we fee to be as univerfal as are the cohabitations and focie- ties of men, and ferves the turn to hold them toge- ther in all Countries, howfoever they may differ in their forms. So that though we mall admit thefe with the reft of Cnutes laws to be national, as by their Preface (that, I mean, of the fecond part, con- teining his fecular or politike Conftitutions) they are apparently no other, (Dif if "Sonne f eo pojmlb- cuntoe genetmej" fte icpille mibminan pitrenan jix&e. j> man healb ojrep call Gn^lalanb:) yet I take it thefe Laws (6&. and 75.) conclude not for a natio- nal, general, or univerfal defcent of Inheritances, by an equal or Arithmetical divifion amongft all the children or heirs, nor indeed for more than this, that a partition was to be made of the fame, in of GAVELKYND. 81 in point of proportion, more or leflfe, according to what, fro more p atria the eldeft fon and heir of Leofric, Earl of Leicefter, and his Counteffe Godiva, Thorolds fitter, in the year 1051.) yet I am contented to admit and agree, that provincially, and particularly here in Kent, we had fuch a Cuftome both before and at the Con- queft : neither am I againft their opinion, who af- firm the like courfe and cuflome currant in thofe times throughout the Kingdome, as not being de- ftrous to infift much upon this example in Thoroldus charter, or any fuch like, to the contrary, for the prefent, though I doubt whether it can concludently be argued from (the grounds and authorities they ieem to go upon) thofe Laws of Canutus. Never- thelefle be it fo : for though fome will fay, the Con- querour found it not here, but either by himfelf, or his brother Odo> brought it hither out of Nor- mandy, and by the pattern and practice of his own Countrey planted it here, (how can this ftand with Spots Story by the way?) yet I am not of their mind. For had it been from thence tranfplanted hither, probably it would not have been confin'd to Kent, a corner onely of the Kingdome ; but have ipread it felf rather over the whole, by the Con- querours means, whofe inclination and endeavours to 8z The ANTIQUITY to propagate and implant here the Cuftomes of his own Countrey, are too eminent and notorious to be doubted of. Tis nothing probable then, (what fome have deemed) that we borrowed this cuftom from Normandy, or that Odo was wrought upon by any pattern of that Countrey to fet it up amongft us, but rather found it here at his coming. Sup- pofing therefore fuch an univerfal cuftome here in England before and at the Conqueft, it will con- cern us next to make enquiry, how it came to paflfe, that when all the Realme befide, hath in a manner difcontinued it, Kent onely reteins it, in that general manner at leaft, whereby in proceffe of " Perambul. time it is become (as the Year-book quoted of b Mr. pag-nS. Lambard phrafeth it) as it were a common Law there. The anfwer muft be but conjectural, fince Records herein fail us of all light, as well as Hifto- ries, all but Spots, who for the reafons pre-alleaged fliall be none of my Refolvcr. Will you have the common anfwer ? Why then they fay the Con- querour abrogated this cuftome in all parts of the Kingdome fave onely in Kent, which obteined to continue it by compofition with him when they met at Swanefcomb. But having formerly faid (I hope) enough in anfwer hereunto, I will feek fur- ther, and try if fome other more probable caufe may not be found for it. The Conquerour then (I will fuppofe) confented to the continuance of this cuftome generally throughout the Kingdome, in all, I mean, but Knight-fervice land, the defcent whereof to the eldeft fon alone, (partly for his own, and the f Coke upon Realms better c defence and ftrengthening , and Littleton, foi. an i for the u^^ anc j maintenance of 2 gentile of GAVELKYN D, 83 d gentile families) I fuppofe none doubts to be leffe * ancient than the Conqueft, for fo much of it (at leaft) as is of ancient Tenure, (as Mr. Lambard de- fires to qualify it:) Nay, and feems to give expreffe allowance to it, without diftin&ion of lands, by filet-, that 36th of thofe Laws in Ingulf bus copy, which ^" after the conqueft, he granted to the people of ^ nerv u - England, and were indeed (as the title of them in- num iomeratis, timates) the Laws of the Confeffbur, his predecef- four j or rather, fay e fome, of the Confeffours pre- decefibur, Canutus : Si quis inteftatus obierit, liberi . ejus hereditatem the heirs concurrence was required and ufed in the alienation. Instances of this kind (of difpofmg land by will, I mean) might be given in abundance, but a few may ferve the turn. To pafle over, as obvious, becaufe publike, King Alfreds will, at the end of his afts and life by AfferiiiS) though I might here perhaps not imperti- nently take up that of Regis ad exemplum, &c. to let that pafle, I fay, as alib for the like reafon, to omit Eyrhtrtcks will of Mepham in Kent, extant in the Perambulation, pag. 492. whereunto (if need were) I could add many more examples, as well out of St. Albans private Hiftory, now of late made publike by my deceafed friend Dr. Watts, as from the Records of the Church of Canterbury, where- of, befides the copies of fome whole wills, I have by me (everal extracts : To let all thefe pafle, I fay, I fhall onely inftance in a will or two, one of a very eminent perfonage, an Etheling^ P Prince Ethelftan PCF whom fee by name, the ion of King Ethelred, which I fliall ^ Hift. in r \ u r A o the lite of - let before you m the Appendix, Scnptura 18, as r e / re j t hc 3 * N Schp tUra Monarcji, 8 gepejiet) be fcyjie epirnej-pe, i. e. (as Mr. Lambard con- ftrues it) terra omni lite foluta, or (as it is turned in Jornalenjis, and the 35th of the Confeflburs laws de Heretochiis in Mr. Lambard, fol. 136. a.) terra ac quiet at a comitatus teftimonio. Let me illuftrate it * Tn Armar. by a pafifage in a Charter 1 of King Edmund to Eccicf. Cant, jfelffoffg his Thane in the year 941. of certain lands and poffeflions there called Mulanton, running thus: Trout fater ipjius ^/Elfheri priorum temporibus nof- trorum, fub conteftamine totius pofularis Senatus, fuafecunia, ab illo & ab alio, prout tune temper is mos erat, adquifivit. In effed it was, as I conceive, if not the fame with Bocland y (called terra tefta^ mentalis^ not onely becaufe deviieable, but alfo in regard of the publike teftimony of the Shire, re- quired and ufed in the pafling of it otherwife than by will) fuch land (like that mentioned of Mr. Sel- den, Tit. of Hon. par. 2. cap. 5. pag. 631. and there faid to be holden, quiet e & abfque omni calumnia--> or like that paflfed OJT conveyed, as in Sir Henry Spel- mans of GAVELKYND. 87 wans Councils, pag. 319. and 333.) as was unquef- tionably a mans own, as upon the purchafe or grant of it confirmed and allured to him in the legal way of thofe times, fuch haply (like thofc of latter times patTed by Fine) the conveyance whereof was record- ed and inrolled, or entred in the Shire-book, iir publike Shire-mote after proclamation there made, for any to come in that could lay challenge, or pretend right unto it ; whence not improbably our manner of recording conveyances, fometimes (as in Canterbury) in the Hundred, fometime in the yid. Burgemote, otherwhile in both, whereof I am not lib - 1 - ca P-' 6 - unfurnifhed of inftances. Thus for that kind of "3. a. land. Now for Bocland> and how the Law flood there : r Sir Henry Spelman, I confefle, is cleer of r Gloffar. vcr- opinion againft all power of alienation in the owner, *** Boclantf ' and that of neceffity it muft be left to defcend to the heir, and thence is called terra htereditaria y grounding upon that 37th of King Alureds laws, which he there recites. Under favour, that Law cleerly makes for the contrary, allowing unto the Pofieflbur a power of alienation, faving where his hands are tied from it by an exprefle provifion and prohibition to the contrary, from thofe (the Ance tour, or who elfe) it came unto him from ; a cau- tion in my apprehenfion of the fame nature with an exception, which (as f Civilians ufe to fay) frmat r gi. Ex his in regulam in non exceptis. And as for its name of ^01^"?- terra hareditaria y and the argument upon it, it is flit, de dona- eafily anfwered, as thus : fo called it was to diftin- tio - * ei a J2' guifh it from Folcland, otherwife called Gafolland, i n Auth.dcnon wherein the Tenant being but as it were a Leffee, alien. Ufufru&uary, or Fermour, and having no propriety, upon his death, or other expiration of his term it N a reverted 88 The ANTICLUITY reverted to the Lord, and defcended not upon the heir, as Bocland did, at leaft ought to do, being (becaufe his own in propriety) hereditary, if not a:- lienated by him in his life time, as it might be, in regard it was as well terra liber a, as h credit aria, and fo called, which Folcland never was, however Sir Henry Spelman, in a place r fo afiert, likening it to A n odium ^ whkh indeed was M erumy an d confe- quently capable of alienation, cither by gift or fale, to whomfoever the owner pleafed j a property ap- propriate tO' Bocland, thence otherwife called, efpe- cially abroad, Allodium, whereof more hereafter. But further to cleer the point of Boclands being alienable, and in the power of the owner to difpofe of at pleafure, have here a pregnant paflage for our in Archiv. p re fcnt purpofc, borrowed from a Charter u of Arch- bifhop mifre'd (who died about the yeer 830.) of the gift of certain houfes to his Succeflburs in the See of Canterbury, thus fpeaking : Eif ^onne huelc mon "Sasr uojin cpar8e %xr ne me pae mm pic * j$H&re: for 'Son alepe&pan x "Son ofrrnm hi^um- t:o bjiucenne not clear'" 8 " ne mmum aejipepeajibum. ^onne pire he "Saet; hi naej* ne^pe cjiifTej* cijucan lant> ne nen^ej" monnej- boclonb aeji mm. ^ ^onne j*e monne ieont "Sence *] aj-meaie be o'Seppa monna boclon- foum ic in j:ru)>j*rolum le buran. huabep hio me^en hiojia a^en fellan o'S^e on hiojia lip an j*ue him Jeoj: j-iae o^e pop hu^u mm j-cyle beon un le . . . . 1 benjie ^on o'Spum monnum hiofia. That is, in our modern Englifh : If any man fh all fay that this Man/ion is not more in my power , or (the power of) my heirs to ufe, than of the reft of the Society, (or Covent) then let him know, that it ne'ver was Chrift- church land, nor any mans Bocland before it isuas of GAVELKYND. 89 was mine : and tken let him further think and con- fider by other mens Bocland, as well in priviledged places, as without, whether they may grant away their own (land, or pofleflions) or give it for (or, in) their lives times as pleafeth them, or wherefore mine Jhould be of different kind to thofe of other men. Thus the Charter, as I underftand it. Boc- iand then, I conceive, we may conclude alienable by the owner of it, both by act or grant in his life time, and at his death by will, in the times (I mean) before the Conqueft. But afterwards that cuftom of devifmg it by will ceafed, as did withall the de- fcent of land generally, by equal divifion amongft all the fons. For, as the Englifh Laws and Cuftomes in general, from that time fuffered a daily eclipfe and declination by degrees, fo this in particular (faving where they were more tenacious of it than el where, and in fuch places, whereof y London feemeth r see to be one, as by fpecial priviledgc were fuffered to Sur?ey,p keep it up) languifhed, and was at length fupplanted by that other krnd of defcent, which now regularly takes place throughout the moft part of the King- dome. Infomuch as where this partible defcent cannot, to uphold it felf, juftly plead antiquity and ancient cuftome, it quite fails, and falls to the ground. And to this pafiTe (I take it) was it come in Glanvill and Braffons dayes, who therefore harmo- nioufly deliver this as a requisite and eflential pro- perty in land of fuch defcent, that it be not onely by nature partible (as it is by being Socage, if we may interpret Braffons fi htereditas partibilis Jit, by Glanvills ft ftterit Socagium:} but withall, that by cuftome and of old it hath actually been parted. Now the Kentifh men, it feems, the Commons there, ANTIQUITY there, I mean, like the Londoners, more careful in thofe days how to maintain their iffue for the pre- fent, than their houfes for the future, (a contrary refped to theirs who have of late, by Aft of Parlia- ment, rid their lands of this Cuftome, as to that property of Partition) were more tenacious, tender and retentive of the prefent Cuftome, and more careful to continue it, than generally thofe of mod * Lamb. Per- other Shires were : not becaufe (as fome z give the amb.pag.f46. rea f on \ the younger be as good Gentlemen as the from Littleton. , , / , J / elder brethren, &c. (an argument proper perchance for the partible land in Wales) but becaufe it was land, which by the nature of it, apperteined not to the Gentry, but to the Yeomanry, whofe name or houfe they cared not fo much to uphold, by keeping the Inheritance to the elder brother. And thus at length, though 'tis like enough from fmall beginnings, (as many times great ftreams have but narrow fountains) it became fo fpred and difFufed over all the County, that what was not Knight- fer- vice, but Socage-land, or of Socage Tenure, was in time (in Mr. Lambards phrafe) apparrelled with the name, and (as may be added) qualified with the properties of Gavelkynd. And hence alfo it comes to paflfe, both that we very rarely, or never meet with any land there at this day, (other than Knight- fervice land) that is not of Gavelkynd nature, and of a partible defcent, and that withall both our printed and manufcript Cuftumals, whether general or particular, ufe never a word of Socage Tenure, but of GavelkynderSy Tenants in Gavelkynd, Tene- ments of Gavelkynd, and fuch like, as Mr. Lam- bard obferveth, pag. 544. And notwithstanding the ancient printed Cuftumal in Tottell claimeth 2 free- Of the WR IT, &c. 91 freedome onely to the bodies of the Gavelkynders, which may be the truer reading, yet Mr. Lambards may, efpecially at this day, pafie well enough, by whofe copy it is claimed as due to all the Kentifh men in general, as, for the generality of the Com- mons, by common intendment, fuch at this day. But of thefe things hitherto. Yet ere I proceed to the next Proportion, let me difcharge my felf of a late promife for inquiry into the following, Emergent : Whether the Writ, De Rationabili parte bonorum, See the Preface lie at the Common Law, or by Cujiome. to theRfladcr - THis Writ is grounded and dependeth on a tri- partite division of a mans perfonal eftate, whether dying toftate or inteftate, and leaving behind him wife and children ; as in cafe he leave onely a wife, and no children, or children onely and na wife, upon a bipartite. In the former of which ca- fes, one third part of the goods belongeth to the widow, another to the children, and the third (call- ed the Deaths -part) to the life of the Defunft, to> be difpofed either by himfelf, as he fhall fee good by his will, or for him, if he die inteftate, by the Ordinary inpios ufus. In the latter cafe, one moyety falleth to the widow, or to the children, (as the cafe fhall be) and the other to the ufe of the dead y as before. In both cafes, to the children of the deceafed, each of them a rateable part, provided that fuch child be not his fathers heir, or were not otherwife advanced by him in his life time, unlefle haply (for hereof there is fome queftion) waving that his j>2 Of the WRIT, his former portion, he fhall choofe rather (as in the cafe of lands) to take the benefit of this partition Hotchpot. by j-he wa y O f Hotchpot, which is all one with the Civilians Cvllatio bonorum, or the Lumbards Miffio in confujum. See Dr. Cowell, and Sir Henry Spel- man, in Hotchpot. Now that there was any certain, or definite part or portion of the deceafeds goods or eftate, (whe- ther real or perfonal) any Quota pars, or Legitima, as the Civilians term it, by any cuftome here na- tionally obferved, due to the widow or children in the Saxon times, doth not (that I can find) appear by any Law or other monument of theirs now ex- tant. The plaineft and moft vifible footfteps of that tripartite divifion or partition by this Writ intended, appear in that remarkable place of venerable Bedes Ecclefiaftical Hiftory, lib 5. cap. 13. where we read of one, who, Teftator-like, difpofing of his fub- ftance or eftate, Omnem, quam poffederat fubftan- tiam, in tres divipt portiones. E quibus unam con- jugij alteram filiis tradidit, tertiam Jibitpfi reten- tans, ftatim pauperibus diftribuit. The Saxon read- ing hath it more for our purpofe thus : " Galle hij- " xhro on ^peo ro bselte. senne fesel he hiy pipe " j*ealbe. ofejine hij* bearmum. "Sone ^jiifo&an "Se " him gelamp. he inj*rsepe ^eappim ge&aslfce. Where mark, the third part is there faid to belong to himfelf : " ^one ^ruttoan ^e him ^elamp, &c. plainly infinuating that the other two as rightly ap- perteined to his wife and children, each of them a third. But withall obferve, that this is the ad of an houfe-keeper in the Province or Region (as there called ) of Northumberland : 'Paterfamilias in re- gione Northanhymbrorum, &c. fo is he defcribed; and De Rationabili pane bonorum. $ 3 and fuch a teftimony indeed it is as makes much (1 confefle) for the antiquity of that Cuftome (of a tripartite divifion) yet furviving and currant in thofe Northern quarters of the Kingdome, but whether, in right conftru&ion, extenfive any further, or con- cluding for a national cuftome in that particular, e- fpecially fince traceable in few other parts or coun- ties of the Realme, by any later or elder footfteps, I think may well be doubted. To proceed then, (for I intend to ftate and handle the point rather as an Hiflorian, relating the matter of fad, than as a Difputant, arguing the cafe : ) as for that Law or conftitution of King Edmund, which fome infift 'Vid.% upon for the widows right to a moyety of the e- ConcU.tom.i. ftate, if fhe have no iflfue, otherwife, in cafe of UTue, and remaining fole, to the whole, that cleerly takes place onely vigore contra ffus, or by force of a pre- cedent contracts the Law in that particular being ufliered in with this ground, or fuppofition : ip hit; j-pa ej:onpont> brS, &c. i. e. if it (hall be fo mu- tually agreed or covenanted (before or upon the marriage.) Nor doth that Law of King Canutus, par. 2. cap. 68. conclude for more than this, namely, a partition of the eftate amongft the wife, children, and nigheft kinred, to be made judicio 'Domini, by the Lord (of the Soils) difcretion, " y pife ruhre, i. e. rightly, or according to right, and " be J?sen msefe " 'Se him to geby nrge, i.e. after the meafure, rate, or proportion that to them belongeth, not determin- ing or making any mention, what that right, that meafure, or proportion is in certain, (not the widow and children each of them a third ; for then where were the kinsfolks fhare ? ) but leaving it indefinite and undetermined, as what haply being ordered by O the 94 Of the WRIT, the Lords difcretion, and that fwayed and regulated by (that optima legum interprete) Cuftome, might vary with the place. Nor was any fuch partition currant here, in cafe there were a will, for what faith the Law ? " ijc hpa cpybeleaj-e oj: 'o'ljyum hpe gepire, &c. i. e. If any one depart this life in- reflate, &c. implying liber am teflandi facultatem, a free liberty to difpofe otherwife by will : as doth 'siquisinttfa- a lfo that Law of his Succeflbur, the b Confefibur, 1 ^>hlt ratified and re-inforced by his Succefibur, the Con- tem ttytaiittr querour, providing that the children of perfons in- c^EiN*' teftate fha11 e where fuch a Cuftome is, that the Wife parag.*i 6. foi. and Children flail have the Writ, De rationabili IJi b where P arte bonorum, this Statute faveth it. And this be 33 is* 'o^tlin Writ doth not lie without a particular Cuftome, for faying , that tfo fl^tt in the Regifter is grounded upon a Cuftome, h^gLn^ which (as hath been f aid) is fave d by this 4 ft. from M*gn* But wjiere going on he further adds, that Braffon chrt, which was o t j ie f amc O pj n i on quoting for it, (as f Swin- is jmpouioJe; . . /. . . / r> r-t / i Gbwvttt being bourne before him) that place of BratJon, rol. 61. a. dead long be- [Neque uxorem, neque liberos amplius capere de bonis rour(itfe n eto defuntti patris vel viri mobilibus, quam fuerit eis occafioned ,by fpe c ialiter relittum, nifi hoc jit de fpeciali gratia tef- ^ a nr a rTnn g !!!f totonSy utpote (i bene meriti in ejus vita fuerint, cjuoraiion, noi . J. J ^^ / r \ / own, frc.'} with fubmiffion, they are both of them mil- but his that fet taken: that which BratJon there delivers, being a him forth, or . . . ... . .. r r fomc others, plain exception, deviation and diverfion from the general De Rational Ui parte lonomm. general rule by him (as by Fleta after him, totidetn verbis] juft before laid down, and taking place one- ly in Cities, Burrows and the like, by particular cuf- tome of the place, as (amongft others, ut quidam dicunt, fay they) in London, and that upon this double confideration, namely, firft, the advance- ment of trading and traffique (the life of all Com- mon-wealths, efpecially of Hands) which would be much encouraged by this liberty left to the Mer- chant or Tradef-man, to difpofe of his labours and gettings, where and how he faw bed -, and fecond- ly, the countenance of vertue, and difcountenancc of (her oppofite) vice, when by a neceffity laid up- on the wife and children, to comply with the hus- band and father in fuch wayes, both of thrift and duty, as might win and wear his love, and confe- quently, make him willing to requite their merit, the vertuous fhould be rewarded, the vicious dif- carded : Vix enim (fay they, Bratton and Fleta, both) inveniretur aliquis civis, qui in vita magnum qu&- ftum facerety ]i in morte jua cogeretur invitus bona fua relinquere pueris indoEtis, & luxuriojts^ & uxo- ribus male meritis : & ideo neceffarium eft quod illis in hac parte libera facultas tribuatur. *Per hoc enim toilet maleficium, animabit ad t virtu- tem, & tarn uxoribus quam liberis bene faciendi da- bit occajionem, quod quidem non fieret, ft fe fcirent indubitanter cert am fart em obtinere etiam fine tefta- toris voluntate. And this (I take it) is the thing (the good of the Commonwealth, by the mainte- nance of traffique, much encouraged by the liberty of a free Devife) by Glan^'ill, though fomewhat darkly, pointed at, lib. 1 1. cap. 1 1. where (acquaint- ing us, that an Afllfe of Mortdancefter lies not for houfes Of the WR IT, houfes or tenements, Hwhich are wont to pafle inter catalla in Burrows, as Bracton and Fleta inform us} becaufe of a greater commodity redounding to the Kingdome by another kind of Affife, aneftabliihed courfe I fnppofe he means, wa-rranting the liberty of a free Devife of fuch things, tanquam catalla) he faith : Item ratione Burgagii ceffare folet affifa per aliam ajfifam ex caufa majoris utilitatis in regno conftitutam. But notwithftanding it were thus in London in thofe times, ( when Braffion and Fleta wrote) yet afterwards it feems that cuftome (of a free and arbitrary Devife) ceafed, and ( haply upon thofe counter-grounds, or contrary confiderations, brought and laid down againft it by the fame Swin- bourne, fol. 113. a.) gave place to this kind of tri- partite divifion : witnefle (befides Mr. Lambard, Per- ambul. pag. 561.) what in a book lately publifhed, intitlcd the City-law, and faid to be tranflated from an ancient French Manufcript, pag. 7- is delivered in thefe words : And it is to be underftood? that when a Citizen of the fame City (London) hath a wife and children, and dies ; all the goods and chat- tels of the faid party deceafed, after his debts be faid, Jhall be divided into three parts -, whereof one Jh all remain to the dead, and Jh all be diftributed for his fouls benefit-, and the other part (hall be to his wife, and the third part to* his children, to be equally Jhared between them , notwithftanding any will made to the contrary, &c. But (to proceed) although Glanvill, BratJon, and Fleta, one and all, feem to conclude for this rule or order of Partition, to obtein and take place by the Common Laws yet, as this courfe did not long fuxvive them, but, except where particular Cuftpme (fuch as that where- * xm De Rational ill parte bonorum. on the Writs in the Regifter are grounded ) kept it up, at length grew into dif-ufe, in the cafe both of teftate and inteftate perfons (witnefle on the one hand, the liberty time out of mind generally ufed at pleafure to difpofe of perfonal cftate made by will , and on the other, the Ordinaries well-known power of diftribution of Inteftates goods, which is not without warrant from that claufe at th' end of Magna Chart as i8 tk chap, whereof in Matthew *Paris, and selfwhere:) fo with all thefe pafifages 8 in Glawill, Bratfon and Fleta, are fo inconfiftent with what, in the cafe of teftate perfons, themfelves man '?***- with almoft the fame breath, deliver, that I know ** m tyt*v?*- . , , w v ft 7i c i rum & amtco- not how pombly to reconcile them. Whereof the r w /<*, former thus: 'Poteft enim quilibet homo liber majo- ribus debit is won involutus, de rebus fuis in infamt- tate fua rationabilem divifam facer e fob hac forma fecundum cujufdam patrite confuetudinem, quod *Do- minum fuum frimo de meliore & frincipaliore re in effe J j r ^ r -j o f Brafion and a lias per Jonas fro voluntate fua. Quicqwa autem FUt* .> ad EC- diverfarum patriarum confuetudines fuper hoc tene- *&**& ? mi ~ ant, fecundum jura re grit non tenet nr quis in tefta- *%?*** '**' mento fuo alicui perfon* pracipue nifl pro voluntate fua aliquid relinquere , liber a enim dicitur effe cujuj- curique ultima t voluntas j fecundum has leges Jicut & fe- cundum alias leges. The other two, to one effect thus : Cuilibet autem jit licit um facer e t eft amentum de rebus fuis mobilibus & fe mo-vent ibus, & quatenus fuperfu- erit deduffo #re alieno, fciticet debitis aliorum, &c. Thus, in mine opinion, do the fame men more than feem to fight with, and contradid themfelves, and how to fet them agreed is paft my skill. But indeed vix tanti eft, 'tis not much material, fince if zoo GAVELKYND^ whether if we fliall admit (what fomc eagerly contend for) this rule and order of partition to have fometime been by Law currant throughout the Realme, yet by general difufage and difcontinuance, it is now, and that not lately, antiquated and vanifhed out of ure, both in this (of Kent) and other Counties, fur- viving onely (for ought I hear ) in the Province of York, and fome few Cities; and that it fhould ever be revived, at leaft in the cafe of teftate per- fons, until firft fome way may, if poflibly, be found, how to xliflbrve this knot, and remove this rub of flat repugnancie and difagreement of thofe ancient Authoucs (the vouched Patrons for it) with them- felves in the point; I for my part, faving better judgement, fee but little reafon, and further than thus dare not in a cafe fo controverted and can- vafed by learned and judicious Lawyers, interpofc any judgement of my own. PROPOSITION IV. Whether GAVELKYND be a Tenure or a Cuftome. T will not be amifle (I hope) to ufher in the anfwer to this Quaere, with fome di- greffion concerning Tenures. Facing then about, and looking back upon the times before the Conqueft, inquire we out the Tenures (if I may fo call them) then in ufe, and what other fuccecded in their places afterwards at and fince the 3 Conqueft. a Tenure or a Cujlome. i o i Conqueft. Here I expeft it ihould be granted ( for 'tis avouched I am fure by feveral h men of credit) b See Mr. sd- that before the Conqueft we were not in this King- f w Et jf t ltles ' acr dome acquainted with what fince and to this day 228,273,30?! we call Feoda, Foreiners Feuda, i. e. Fiefs, or Fees, Illl j lftr 1 a , t - upo g n either in that general fence I mean wherein they si/aJ^sJ^ are difcourfed of and handled abroad in the Book iw Gioflarj. thence intituled Fetldum ' Littletons Tenures, or in that particularly under- ftood of us, when we treat or fpeak of Knights-Fee, which could not then be known here, when Knights themfelves were not in being, as (faith a Record in the Cathedral of Canterbury, whereof more { anon) ' And in the they were not till the Conquerours time. Or if in effed gS^ta k i they were known to us, yet in terms certainly they were not : for the name of Fee, or Feitdum, in this fence is no where to be found in any our Records or Monuments of thofe dayes now extant, and of credit, if my felf and others have not been more unhappy to mifle it, than indiligent to fcek it. s Tis true, it occurrs in the fifth and fixth of the Laws afcribed to the Confefifour, fet forth by Mr. Lambard y in the Varta leffio there in the margent 5 but be- fides that the Text in each place reads it Fundo, thofe Laws, I take it, for the moft part, efpecially as to their phrafe, carry not that antiquity ; but, like thofe of like kind in Scotland, afcribed to King Malcolm the k fecond, and King Alureds will at the end of * - s t elrn - the Story of his life penned by Affirms, where the jeuJum, pa g * word feveral times occurrs, favour of a later drefle. aj-s.col.*. Sc The like no doubt may as truly be faid of that, Qut in feodo fuo, in the old Latine Verfion of King Edgars Laws, following thofe in the original Saxon fct forth in the late Edition of the Councils by P Sir 1O1 Sir Henry Spelman, pag. 446. And may we not upon this (amongft other grounds) queftion thofe . Hi ft orCroy . Charters m l lngulphus, thus far, I mean, as to land. doubt, whether many, if not the moft of them, fpeak not another than that tongue in which they were originally penned, as being by the Authour, (though Englifti born, yet afterward Normaniz'd, by converfmg there fome time, as a Retainer and Secretary to Duke William, afterward Conquerour, and King of England) whofe Story is penned in La- tine, the better to fuit with it, taught to fpeak the Latine of his time, and late Matters native Coun- trey ? upon this ground, I fay, that amongft many other phrafes fcattered here and there, not in ulc with the Saxons, nor ever heard of here in Eng- land till about Ingulphus own time, (fuch as Ave- ria, Ballivus, Bedellus, Communa pa/turd, Juftici- arius, Forisfattura, Tenura, Weif, Stray, with ma- ny more fuch like, which I forbear to name in this place) occurrs Feudum. For. example, in the Char- ter of Witlaf, the Mercian King, dated anno 8 3 3. we have it thus : & xl. acras de eodem feodo in campo de c Deping. The like in; a Charter of Ber- tulph, another Mercian King alfo, dated anno 860. and in fome other of later date from fucceeding Kings, we have de eodem feodo de Gerunthorpe, and the like : whereas it may very juftly be doubted, whether either the Laws, Stories, or other, either Written or printed monuments of credit of any Na- tion or Countrey, can fhew the word (Feodum, or Feudum) in ufe amongft them (but in ftead thereof Beneficium, Feudum's elder brother, or the like) until about that age, until (I mean) after the be- ginning of the tenth Century from our Saviours in- 2 carnation. a Tenure or a Cuftome* 103 carnation. And hence give me leave, with Buche- lius, in his Illuftrations upon Hedas Hiftory of the Bifhops of m Utrecht, to fufpeft that lift or memo- " Pag. ue vaffts Jive fide addittis Ecclefi in Alodio, and other like Tenures there occurring : the Introducer bor- rowing (faith one P of my Authours) the term, (he p spdmm, ubi might have added the Cuftomes) from his own na- fupra tive countrcy, Normandy, which he concludes from a paflage of himfelf there quoted out of Domef- day-book, thus fpeaking : - In eodemfeudo de IP. Comite Radnlfo de Limes 50. carucat. terrte Jicut fit inNormannia: thus fubjoyning : Feudum & Noman- niam jungit, ac ft rei novte notitia e Normannia q -* R^ difquirenda ejfet. But with fubmifiion to better judgements, 1 queftion whether thofe words: ficut fit in Normannia, mav not relate to Carncatg ter- c * nt ; 5 i . ff i r- mtnjus tjt : Or- being an expremon not ufed ot ^ the Saxons do-ir- ons in the point, of which fome, and thofe the e ' moft, and with mod general applaufe and accepta- tion, fetch the former (Feudum) from Fides , others from Faida, or Feida (helium] a third from Foedus : a fourth from the German Feuden, quaji a fungendo, i.e. pafcendo, or (as *Gryphiander hath it) from the ' *? e Wefch - * J r~< ] . i i r i Dild. Saxon. Saxon roden, i. e. nutnre : to let thefe derivations all paffe without any further repetition, as obvious enough in the writings of the Feudifts and elfwhere, efpecially (with fome additions of his own) in Martinius Lexicon-Philologicum : as likewife not to repeat the like variety amongft them, (as obvious as the other) concerning the latter, (Allodium) which fome will have to be a derivative from a, the privative particle, and Laudium, or Laudatio, as a poffeflion acknowledging no Authour, no Lord of the Soil, but God alone ; others from that priva- tive particle, and Lodes, quaRJine Lode, that is, fine vaffallo, as a mad man is called amens, to fay, fine mente, as whofe poffeffour is no Vaffal, whileft a third fort fetch it from Alfleud, as we fhould fay, pofTeflions common (i.e. fuch as may freely be given or fold) to all or any of the people, the ma- ny : like in this (fay fome) to what of old we here in England called Foldand> by which (but how pro- perly, fuice Folcland is parallel'd with what fithence we call * Copy -hold, may well be doubted) they are c j -11 fL r i j prefer, &freft, found to illultrate it, contrary to a fourth denva- symboiog.par. tion of others, who hold it infeparable from the l &< ft^ family, and thence of the Germans called Ein An- 5 ' lod. A fifth fort there is, that draw it from the forefaid i o 5 G AV E L KTN D, whether forefald privative particle ^, and Lead (in French Lend) a VafTal, as it were, without vaffallage, or without burthen, which we Englifh men (faith my Authour rightly) at this day call Loade: not further, I fay, to trouble the Reader with either any longer repetition of thefe and the like (for there are fome other) various opinions of this kind, or any Cata- logue of the feveral Authours of them, I will, as I promifed, offer my conjecture at each words etymo- logic, with fubmiflion of it to better judgements. In fhort then I fay, that each of the two words in its original, which is German, is a compound confining of two fyllables, of which two, the lat- ter (to begin with that) I conceive to be the fame in both, and is no other than what is borrowed to- wards the compofition of many feveral words of the fame original, ufed and continued bothinthofe, efpecially the Teutonic parts, and alfo here in this Hand, from the time of the Saxons fetling here, down unto this day, though with fome little varia- tion of the Dialed, occafioned by trad of time bringing its corruptions, and the intermixture of other languages : and that is with us hade, head^ hode, with the Teutonics heyd, and heit, fometime hat, betokening in each place (as dome, and fhip, anciently written fcip, in the terminations of many of our words;) a quality, kind, condition, ftate, fort, nature, property, and the like. Hence the mi- litary, mafculine, feminine, childifh, paternal, ma- ternal, fraternal, fifterly, defolate, presbyterial, neighbourly, quality, nature, kind, condition, &c. of a Knight, a Man, a Woman, a Child, a Father, a Mother, a Brother, a Sifter, a Widow, a Prieft, a Neighbour, &c. is termed Knight-hode, Manhode, Woman- a Tenure or a Cuftome. 107 Womanhode, Childhode, Fatherhode, Mofherhode, Brotherhode, Sifterhode, Widowhode, Triefthode, Neighbourhode, &c. The quality, nature, exiftence, of the Deity is ftiled Godhead with us, with UP Anceftours, the Englilh Saxons (who wrote and had that hade, which we fince write and have hode and hood) Godhade. Head in Maidenhead ows it felf to the fame original, denoting out the virgin-condi- tion, or maiden-quality of the party. Hood in Livelyhood is alfo fprung from the fame root,. whereby a mans ftate of fubfiftence is Signified : and the like may be faid of hood, in Fallhood, Likely- hood, and a many words more of like termination, as exprefling and letting forth in the one, the falfe in the other, the probable, likely, condition of the thing predicated. This may alfo help us in the e- tymologie of what we ufe to callF as afterward, perpetual, patrimonial, hereditary, dare or holdcn (in Glowvill and Braftons phrafe) ad re- - manen ii am * but as a Clergy-man holds his Benefice, ia, p. 2*5-3 . (hence in fome ancient z Charters called Feodum) one- coweiis inter- iy f or )if e . faz Tenant being but a meer Stipendiary, * Rbilofh'ciu- a Termer, at beft but a Freeholder for life, Ufitfruc- pag. tuarius, and indeed fome were not fo much, but e^Fwd" held onel y ( as our Darned a Gloflarift hath it) ad vo- 3. tit. i. luntatem ^Domini, as b others, precario, not unlike . our Tenants at will fmce and at this day : the Jand de /-./*/ Feud. lib. i. was onely lent, as the German term for \t c (Lehen) cap.i.num.i4. feems to intimate. In procefle of time, degcne- tion.'^verb. 10 " rating and receding from their firft inftitution, they Leen, Sc Dr. became perpetual and hereditary, yet holden, as for- fcHpr' j^r? m ^X> wittl a condition of fervice on the Tenants temporal!*," part, and flipendii loco & nomine on the Lords ; by fr^-7- way (as it were) of Salary, Pcnfion, or Stipend from the a Tenure or a Cuftome. the Lord, to gratifie and recompense his man with- all for fuch his fervice, to which he was obliged under peril of forfeiture by the withdrawing there- of. I dare not add in confederation of Fealty or Homage, (in thofe times) fince, though that acknow- ledgement in the Feudal Law, of fome Fee tenable without an oath of d Fealty be indeed juftly taxed d vid.ffotaman. for a paradox of fuch who will have Fee to come of Fides, (whence haply our legal maxime, that all Tenures regularly are liable to Fealty : ) yet might Fee, by this derivation of it, fland with Fealty, and the Tenants of it be called ^Fideles feudales with- e vM. spelt*. out a foloecifme ; a good argument for the deriva- ( j}^*' ?erb ~ tion of it thus, rather than from Fides, as of more fcope, and more confiftent with Fee of all forts than that other derivation doth allow. Fees, I fay, were holden but in fervice, nomine quajt alieno, the 'Do- minium, that at leaft of Lawyers called direium y (though the utile were transferred on the Tenant : ) the propriety, I mean, remaining and abiding dill in the Lord, together with a power of retraining his Tenant from alienation, and confequently fuch land was but partially, conditionally, not totally and ab- folutely, granted out. Contrariwife, that which was termed, in oppofition to it, Allodium, as it was hereditary, perpetual, and patrimonial, fo was it fans all condition, free, and in the power of the pofiefibur to difpofe of it ad libitum, how he pleaf 1 ed, cither by gift or fale, without asking any man leave : and as it was hereditary, perpetual, patrimo- nial, and free land, fo was it withal 1 poflefTed totally and wholly, not as our land generally in this King- dome in Subjeds hands at this day faid to be hold- en in 'Dominico fuo ut de feodo, as our Lawyer* Q^ phrafc no GAVELKYND, whether phrafe it, but rather in c Dominico fuo ut de jure, (the owner having 'Dominium both direttum and titile : ) or in the Feudifts phrafe, and after their un- animous, harmonious definition of it, pleno jure -, in- '.DeGeft.Pon- tegre 5 ex toto j or ex folido, as f Malmesbury hath ?Hift > NoTor. t * iat wWchf^i^www expreffeth by in Alodium* j.i.p.ls. vid.* quit of all fetvices, like Frankalmoigne, whereunto Dr._zouck,De- Mr. Selden there in that refpeft refembles it. I fea. ma y ca ll it abfolutely, immediately* or (if you will). independently -, without acknowledgement of any fu- periour Lord, not unlike the Prince of Haynault> Glof- holding onely (faith my h Authour) de 'Deo & Sole y far. verb. Mo- , J \_ r , J Tt . ^ . . A J-TN . ^/jw. r J as other abfolute Princes, Gratta \Dei> m a word, in totality : whence the terms of prtfdia im- munia, terra propria, fundus frofrii juris, patrimo- ' AS io'Hiwwff/ nium y in 1 Charters and elfwhere given to fuch pof- foto^Bibib- fefllons - Probably, land of this nature was the fame thec. ciuniac. with our Bocland, which I fometime find in the Lar ? p ^f-T TT, tine rendrins of fome Saxon pieces turned by it : ftrat.Hiit. Ul- n j r L u \ c trajea. & MI- (hence a hint to judge of the one by the other : ) for r*i Cod. Dona- what in the 1 1 th Chapter of the firft part of King. Cnutes Laws is read Bocland: EIJ: hpa J?onne ]>e- en j*y. fe on hij- boclanbe cy nicean h^ebbe, &c. and in the old Latine verfion of it in the Kings Ms, and Jornalenfis, is turned hareditas : Si quis Tainus. in h credit ate fua t err am (it fhould be Fcclejtam] ha- beat, &c. in another like old verfion in the book of Rochefter called Textus Roffenjis, is rendred Al- lodium : Si liberalis homo quern Angli Thegen vo- cant, habet in Alodio fuo Ecclejiam, &c. By Allo- dium alfo is turned in the fame Record (Textus Roffenfis] what occurrs in the Saxon fragment ex- hibited by Mr. Lambard, Perambulat. in Mepham, pag. 300. under the term of a^enej^lano : Et Ji.'vil- lanus a "Tenure or a Cuflome. 1 creviffet fua pr obit ate, quod pleniter ha- beret quinque hidas de fuo proprio Alodio, &c. Al- lodium, it feems thence, being properly fuch land as is fully a mans own. Shortly then, Feudum, Fee, or land holden in Fee, is no more (confidered in its firft and primary acception, to which they muft have regard that will hope to judge aright of the ground for the firft imposition of the name:) than what was holden in Fee-hode, by contraction Feud, or Feod, i.e. in a ftipendiary, conditional, mercenary, mediate way and nature, and with the acknowledgement of a fuperiour Lord, and a con- dition of returning him fome fervice for it, upon the withdrawing whereof the land was revertible unto the Lord : in which refped, as the grant there- of is improperly called a Donation, being but k Feo- * vid. dalis dirnifsio, i. e. a Demife in Fee, fo the Deed or Conveyance by which it was demifed, is as im- properly termed a Charter of Donation, being no more than a Charter or Deed of Feoffment. Such, I fay, is Feudum. Allodium is contrary wife what is holden in All-hode, in totality, in a totall, full, abfolute, immediate manner and condition, with- out acknowledgement of any fuperiour Lord, and free from any tie or compad for the returning any fervice at all for it unto any. Thus far (and I hope not too far, nor impertinently) for cleering the e- tymon of Feudum and Allodium, as the argument, fo the torture of many learned pens, amongft whofe derivations of one and t'other, I humbly crave this of mine (fuch as it is) may be admitted for future Indagatours, and all others of unforeftalled judge- ments freely to confidcr of. And I II And now to fpin on our former thred, and to re- afliime our argument of the Introdu&ion of our Fees or Tenures by the Conqueroujr, which that etymon coming in the way caufcd me a while to fet afide : I here profefle to concurr with them, who upon the queftion put, refolve it in the affirmative, where- J verbo Feu- of our learned 1 Gloitarift, for one, thus: Feodorum fervitutes in Br it anniam noftr am primus invexit Gu- lielmus fenior, Conqueftornuncupatus, &c. and a lit- tle after : T>einceps verb refbnarunt omnia feodorum gravaminibus Saxonum orobernia, &c. as it is n in Armsr. in the clofe of a n Memorial of the gift of Monk- ejufd.ccclefiar. ton C ' a Tenure or a Cuftome. 113 ton and other manours to the Church of Canter- bury, in the year 961, by Queen Edive, ot Edith, whofe picture, in thankful remembrance, was until of late refer ved in that Churches Treafury. Hence was fuch a Charter vulgarly known in thofe times by the name of a Landboc? in the Latine of the SteScnptw* times Telligraphum, fometime Codicillus^ and the "^& * like. Obierve yet further, terrain h credit ario jure spim. confcribere, & liberam proclamare, (the Latine phrafe *? for creating Eocland] was a prerogative royal, or a Royalty, and out of the power of any Subjed, whence that pafiage often occurring in Subjects grants of lands in perpetuity to the forenamed Ca- thedral, and other places, viz. and fuch a one King, hir ^ebokeb onece yjipe, i.e. hgreditario jure con- vide fcripjit, as alfo that: liber am omnino proclamavit, P 3 g-3 l 933i- and fuch like. King Ethelreds priviledge (as called) Eccief. Anglo- confirming to that Cathedral (amongft other things) Saxon, lib. $, their whole pofieflions, is hence by P one of the now^ax^n* Subfcribcnts called, cymn^ej* bocun^e. But not- 0085-4. withftanding this Enfranchifement, the land was vc- P ?* elm - Con " ry feldome alienated by the poffefibur in Frankal- moignc, without (what the Law of * Mortmaine af- * Anno 9. terward required) a concurrent, or at leaft a fubfe- n - 3- c - & 1 / c I rr- L c &anno7.E prior y of s - being of the fame nature : like the Frenchmans ruf cngtnet by fervant, i. e. terra ferviens, in refpeft whereof the Canterbury, Tenants were bound to be Retainers, Attendants V Mu tU m&RH- and Followers to their Lords, Suitors to their Courts, JHcarum, &c. and were thence called (in the term of Hen. i. Laws, taken up afterwards of l Bratton} Folgarii, concern- ' LL - Hen - ing which fee further in Sir Hen. Spelmam GlofTary, Sf^' verb. Folgare, & Felgarii, as alfo in the Laws of cap. 10. King Knute, par. 2. cap. 19. Befides thefe forts of land, after ages (fince the Conqueft) produced many other, fuch as, Work- land y Cot-land, Aver-land, ^Dr of -land, Swilling- land, Mol- land, Ber-land, Smiths-land, Ware-land, Terra Su- fanna, For-land, Bord-land > and fuch like. Of each of which (for fome fatisfaclion to the inquifitive) in a word or two. The firft (Work-land] is land of a fervile nature work-land.' and condition, terra fervilis, as I find it called, as alfo (what indeed the word foundeth) terra oferaria y becaufe haply at the creation of the manour, and diftribution x I to work, or labour, but chiefly differing from that in this particular, that the fervices thereof con- fifted efpecially in carriages, as of the Lords corn into the Barn, to Markets, Fairs, and elfwhere, or of his domeftick utenfils or houftiold-provifion from one place to another, which fervice was of diver fe kinds, fometimcs by horfe, thence called Horfe- a'verage^ otherwhile by foot, thence termed Foot- average 5 one while within the precinft of the ma- nour. a Tenure or a Cu/lome. 117 i5ouri thence named In-average, another while in-amage. without, and then called Out-average ; the Tenant Out-average, in the mean while being known by the name of Avermamus. The fourth ^Drof-land) that holden by the fer- Drof-land, ; vice of driving, as well of DiftrefTes taken for the Lords ufc, as of the Lords cattel from place to place, as to and from Markets, Fairs, and the like : more particularly here in Kent of driving the Lords hogs or fwine to and from the Weald of Kent, and the Denns there, thence called of old 'Drofdens, name- Drofdens; ly from the droves of hogs fent thither, and there fed and fatted with maft, or pawnage ; the Driver whereof was vulgarly called ^Drofmannus. The fifth (Swtlling-land) that let out or occupied Swiliing-iand. by Shillings, Swellings, or Suitings, that is, Plough- lands, coming of the Saxon j*ul, a Plough, (in which notion the word may extend to all arable land) the quantity whereof was various and uncer- tain, conteining more or lefTe according to the na- ture of the land, a Plough being able to matter a greater or leffer quantity, thereafter as it is in qua- lity. This (of Shillings} I find to be a word pro- per to the Kentifh, even from the Conquerours time, (to look no higher) whofe Survey (commonly cal- led Domefday-book) {hews Suling (and the like) to have been a term in thofe dayes peculiar to this County, whereby to exprefife the quantity of their land, whileft Hide, and the like was of like ufe elf- where. To this head may be referred Hide-land, Hide-land, Toke-land, Aker-land, Rod-land, and the like, be- T, oke ; lan ? '. ,, , Aker-land. ing quantities or portions of land let out and occu- Rod-land. pied by the Hide, Yoke, Aker, Rod, &c. and de- nominated accordingly. R The ii 8 CAVELKYND, MoMand. The faith (Mo I- land) was the fame with Up-land r of the Saxons called *Dunland, {landing in oppofi- tion to Meadow-land, Merfhland, or Low-land ; the Tenant whereof was wont to be called Molmannus : the word (as I conceive) being derivable from the Latine Moles^ a heap, of which fee further in the Surveyours Dialogue. Hence probably the name of that place in Afh (the feat and patrimony at this day, and from good antiquity, of the Harflets, for- merly of the SeptvanSy families both in their time adorned with Knight-hood) called Molland, being of an advantagious Situation for the overlooking of a large level of a rich Merfhland. Bcr-laqi The feventh '(Ber-land) that which was held by the fervice of bearing, or carrying the Lords or his Stewards provisions of vi&ual or the like, in their remove from place to place, fuch Tenant being thence called Bermannus. Smiths-land. The eighth (Smiths-land) that, in refped whereof the Tenant was bound, as to undergo the Smiths or Farriers office and work, in and about fhooing his Lords horfes and carriages, fo alfo to find and furnifti him with materials (of iron) for that pur- pofe. ware-land. The ninth (JVare-land) the fame that otherwife. called in the Latine of the times, Terra ware ff at a, or Terra jacens ad wareflam, that is land lying, or fuffered to lie fallow, coming from the French Gare, (their g here, as in many other words, being turned into our w) whence with them Terre garee, for old fallow-ground. Terra fu&ina. . The tenth (Terra fufanna) land, not much un- like unto, if not the fame with the former, being fuperannated land, or land with over mueh tillage worn a Tenure or a Cuflome. up worn and beaten out of ftate, and therefore of ne- ceffity lying over year, and being converted from tillage to pafture, until it may recover ftate, and be fit for tillage again, the term or denomination coming from the French Sufanne, flgnifying ftale, grown old, paft the beft, or overworn with years. The eleventh (For-land) the fame (I take it) that For-lid. we otherwife ufe to call Fore-aker, whereof fee more in Sir Henry Sfelmans Gloffary, verb. Fo- rera. The twelfth and laft (Bord-land) that holden and Bo occupied by the Bordarii, or Bordmanni, the fame (I take it) with the French Bordiers, i. e. Villeins or Cottagers, fuch as hold by a fervile, bafe, and drudging Tenure, of them called B or doge. You may read both of the one and the other in the old grand Cuftumier of Normandy, cap. 53. Within thefig- nification of the word (Bordland) are comprehend- ed alfo (as is already hinted in this chapter) lands holden in Demefne (of the Saxons termed Inlanb) and designed to the furnifhing of the Lords boord or table, and the maintenance of him and his fa- mily in visual. For which fee Braffon, lib. 4. trad, vide 3. cap. 9. num. 5. Which kind of land the Sax- "jjjf* 1 ons ufed to call Fofter-land, quaft foftering land, Foftw-iaod. that is land ad viffum, a term obvious and very fre- quent with the religious men of thofe dayes, who as they had their fpecial Ferrns and portions of land afligned them ad vitfum, fo had they other as pe- culiar to their clothing or apparelling, land ad as Thegen'and Allodium in the Latine verfion in Tex- tus Roffenjis, meet as relatives :) not but that it was was fometime held by Ceorks, as who were not incapable of holding it, (witneflfe the old verfioa of the Saxon Fragment in MX. Lambard, whereof before:) but when fo, as improperly there, and as much out of place as Knights- Fee (proper to Knights and the nobler fort of people) were in this King- dome fince and at this day in Socagers hands, or in the hands of Sockmen, whofe proper tenure was that of Gafolland: buran 'Sami Ceople fe on a- jcollanb pr, as you have it before. I have often much wondred with my felf, whence it fliould come to pafie, that diverfe of our Can- terbury houfes and ground at this day pay no Quit- rent at all, which others in the fame place, though holden in Free Burgage are known to do. But - confidering afterwards with my felf, that Bocland often occurrs in Landbecs (as they were called) of the place in the Saxons time, I at length con- cluded, at leaft conceived, fuch houfes and ground to be the remains of our ancient Bocland, which feemeth to be ftill furviving in them, as if holden in Allodium, pleno jure, without all manner of chargeable fervice, and no other (probably) than part of thofe eighty acres of land (or the like) in Canterburies Survey in Domefday-book thus ex- prefled : Habet etiam ('tis fpoken of Ranulfus de Columbers] quater - chefter : (guod Ji aliquid de prteditto T>ominio in rufticanam fervitittem tranflatum eft, &c, as it is in Mr. Seld&ns Hiftory of Tithes, cap. n. pag. 3iJ. As for the original of Socage,. there b are that re- * vide Adver- fer us (for the finding of it) to a notable paflfage fa ^ i ".^ /^ r ci*-, t /* , . , i i j cr\- i rt f- Hift. in Gervajius Ttlbunenjis his book intituled \Dtalo- ^^ n gus Scaccarit, who lived and wrote in Hen. 2. Praefat. i dayes, which (to bring the Reader better acquain- Hm ' 1 ' ted with the ftate of affairs in the difpofal of our Countrey-mens Free-hold in thole elder times, when as the Englifh State was new moulded) I S 2 here i8 ' 1 turn conapii- fitionem, fo, in analogic to Conqu&flors turning by Coaqttereur. * Or, Ferms. Or, Reve- nues. f Or, Obfer- vance. 8 Or, In way * Or,Defcent here offer to his view : Toft Conquifitionem, &c. i. After the c Conqueft of the Kingdome, and the de- ferred fubverfan of the Rebels, when the King himfelf with his Nobles fur v eyed his new Coun- trey, a diligent inquiry was made, who they were, which taking part in the war againfl the King, had faved themfelves by fight : to all thefe, like as to the heirs of fuch as had fallen in the war, all hope of any lands, ^poffejfions and Brents, which formerly they enjoyed^ was cut off. For they accounted it no fmall favour to efcape with life under enemies. But thofe who when fummoned, came not to the war, or being occupied in houfbold or other necef- fary affairs, were abfent, when in proceffe of time by their conftant *ferviceableneffe, they had ingrati- ated themfelves with their Lords, without hope of fuccejfwn, their children onely, and that but at the Lords will, began to poffeffe. Afterwards, when becoming odious to their Lords, they were every where expelled their poffejjions, nor was there any that would reftore what was taken away, a com- mon complaint of the Natives came to the King, that being thus hated of all, and bereaved of their eftates, they fhould be enforced to betake them- felves to forein parts. At length, after confutation upon thefe matters, it was decreed, that what by their defervings, and upon a lawful agreement, they could obtein of their Lords, fhould be their own by inviolable right. But they fhould challenge nothing to themfelves^by name of^fuccejfion, from ' the times of the Nations fubduinp. Which thing truly, how difcreetly it was confidered of, is mani- feft, efpecially when as thus by all means, for their own goody they were bound from thenceforth to apply them- a Tenure or a Cuftome. 129 tnemfelves by conftant i fer vice able neffe to fur chafe '' Or, obfcrr- their Lords favour. Infomuch as who of the con- ancc * quered people pojjejfed lands * or fuch like y obteined them not, as feeming to be due by right of fuc- ceffion, but in recommence of his deferring*, or by fome intervening agreement. Hence we. fee how precarioufly matters flood with the generality of our poor countrey-men (in point of eflate) in thofe dayes, and with what obfervance and obfe- quious refpeft they were fain to carry themfelves towards their conquering DUTeifors, to purchafe many times but a Modicum of what had lately been their own, and when they had it, fee with- all upon what kittle, tottering, uncertain terms they held k it. The relation comes from a very k Some caufe good hand, and is fo authentike, as (for ought I ^^* know) it may be credited for it felf. But if any Charters or man exped further confirmation, I fuppofe it may Feoffrn ? & r /> i . n <-* 1-1 ancient as toolc be found in BratJon, lib. i. cap. n. num. i. t j mc s, extant where he hath this pafifage, and is in part feconded whcn in it by Fleta, lib. i. cap. 8. Fuerunt etiam (faith he) in Conqueftu liberi homines, qui libere tenuerunt 38 tenementa fua per libera fervitia, vel per liberar cvnfuetudines, & cum per potentiores ejefti effent, poftmodum reverji receperunt eadem tenementa fua tenenda in villenagio, &c. The fame l Authour, ' BraSaa, fol. fol. 26. and elfwhere tells us of a fort of Tenants, J^^ 17 *'*" ad Jirmlitudine m Villanorum Sockmannorum per con- ventionem de gratia ^Dominorum^ licet hoc ejfet ab initio villenagiumj &c. a paflage, if not totidem verbis, yet in fubftance often repeated of him, in my judgement intimating thereby that practice of the Tenants currying favour and complying with their Lords, whereof in Tilburienjis^ and their ob- tcining ijo GAVELKYND, teining thereby ta better their eftates, and by de- grees to creep out of Villenage into a kind of So- cage, a Tenure (thus) grown to that latitude and fo comprehensive, as it helps to make that Dichotomy, into which all the Kingdomes lands in the hands of common perfons, in point of Tenure are refolved, Chivalry being the other. Now being of fuch note, a little further enquiry after the antiquity of the thing, and etymologic of the name, to clear the truth in both, wil not do amuTe (as I conceive) in this difcourfe of Tenures. how By the common and received opinion of our Law- *uigariy dcri- yefSj derived j f uppo fe, and firft. fuckt from (that Lib. a. cap. great Ornament of their FJE ofeflion) m Braffon, the 3T . num. i. term is faid to come (to ufe the Authours own words) a, Socko, & inde tenentes qui tenent in Sockagio, Sock- manni, did poter-ant, eo quod defutati funt, at vide- tur> tantummo4fr ad cwturam, &c. This (of Br ac- ton) is ftrongly backt by Littleton, in his book of Tenures, where treating of Sqeage, he faith, that the reafon why fiich Tenur-e is called, and hath the name of Tenure in Socage, is this : becaufe (faith he) Socagii^m idem eft quadfervitium Socg, <5c Soca idem eft quod caruca, &. A Soke or a Plough. In an- cient time (for fo he adds for further confirmation) before the limitation of time of memory ', a great part of the Tenants 'which held of their Lords by Socage, ought, to- come with their ploughs , every of the faid. 'tenants for certain dayes in the year, to plow and fow the ^Demefne of the Lord. And for that fuch works were done for the lively hood and fuftenance of their Lord, they were quit againft their Lord of all manner of fewices, &c. And becaufe that fuck fer- were done with their ploughs, this Tenure was 3 called a Tenure or a Cuftome. 131 called Tenure in Socage, &c. Thus Littleton, fol- lowed by the generality of our common Lawyers and others fince, not without a kind of popular errour, as under favour I conceive, and with fub* mifllon to better judgements, mail endeavour to e- vince, without check (I hope) for prefuming to con- trol fo great, fo many, and thofe eminent Lawyers, whereas here I oppofe them not in point of Law, but onely in matter of fad:. The firft exception then that I take againft this opinion, is its inconfiftencie with many feveral fpe- cies of Socage-land, or land faid to be of Socagc kind or tenure ; fuch as ^Petite Sergeant?, Efcuage certain, Frankalmoigne, Fee-ferm, Burgage, By'Di* or Sul land, to fay Plough fervice- verb! land? or how could it in thofe times be called So- e- cage in the fence by this derivation intended, when i. p{g.' tne word Sac, if it fignifie a Plough (as it doth a ' Plough- fhare) being in that fence a French word, cannot in any reafon be thought to have taken place here, I mean in the Saxons times, and fo long before a Tenure or a Cufiome. 133 before the French, by their Conqueft, and inter- mixture with us following thereupon, had prevailed to fupprefle and extirpate the Englifh language ? But if it cannot pretend to fo much antiquity, as being a term, as well in the original, as in the fence, Norman, or French, then probably they would not have impofed it without fome pattern, fome pre- cedent, of their own Countrey, as ufed there in like cafe: but doubtlefle this was wanting, their 'term for land of this condition being Tenement Vil- ' seethe Gran,* kin, Villein Fief, Fief Roturier, Heritage Roturier, S U ^" * and the like. Betides, had the term been of their 2^x6 "oln. impofing, with intent to have it fignifie Tillage- fer- with the gioife vice, Charuc being the ufual word with them for a S *-&* Plough, fetch't from Caruca, (whence their Cam- dic.i. p. 191. cat a terra for a Plough land, not heard of here with us until their coming hither :) more likely it had been called f Carucage, or the like ; as a cer- r vide spa*: tain Tribute by our Hen. 3. impofed by the Plough, j^; was therefore called Caruage, Carusage, and the Grange, like. My next and laft exception is from Fleta's deriva- tion of Socmanni, r where fpeaking of the Kings ma- ' Lib. i. c. 8. nours he faith : In hujufmodi verb maneriis erant JjJJgJ 1 ,?" otim liber i homines liber e tenentes, quorum quidam c. id. 'he con.' cum per potent iores e tenement is fuis ejetti fuerant, curs eadem poftmodum in Villenagium tenenda refumpfe- runt : & quia hujufmodi tenentes cult ores Regis effe dinofcuntur, eis prwifa fait quies ne f ett as facer ent adComitatus *vel Hundredos, *vel ad atiquas inquifi- tionesy ajjlfas vet jurat as, nifi in manerio tantunt, dttm tamen pro terra, quorum congregationem tune Socam appellarunt -, & hinc eft quod Socmanni hodie dicuntur effe. A Soca enim derivantur, Sec. Where, T though GAVELKYND, whether though he fay that the Socmanni were Cultores Re- gis, yet he fayes not that thence they were called Socmanni ; but that their Congregation, (their Af- fembly or Company) was called Soca, and hence it is (faith he) that they are termed Socmanni, for they are derived from Soca, &c. Thus he. Now if from Soca (an Aflembly of Husbandmen) then not from Soc, Sock, or Soke, (a Plough.) anew To come now to that which I conceive to be derivation of tne r j nt an( j g enu i ne derivation of the term (Soc- itpropofed. J-L *> T ., T * - age.) To expreue a Liberty, Immunity, Franchife, Jurifdiftion, Protection, Priviledge, &c. our Saxon Anceftours were known to have and ufc a word fomewhat varioufly written of them, viz. Soc, Socne, Soken, and the like. Hence (to proceed to inftan- ces) Sanftuary, the priviledge fometime fo called, was of them termed cynicena j*ocne, otherwife VideLL.,*- cynicena py]?e. With them alfo * pnijj-j-ocne vSi Giof- % n ^ ec * a jurifdidion to keep the peace, y ppb- far. invoce. j"ocne, an immunity from fervice in war, or from warfare. hlajxvpbj-ocne, the Lords proteftion to apud *Ixon!*& his man or Tenant. a hamj-ocne, being of a double Greateieyam. fence, flgnified both a priviledge or protection a- ^sj^r&oi gainft affaults upon a man in his own houfe, or fa. in vocc. under his own roof, and a liberty or franchife to hold plea thereof, with power of animadverfion by fc ldem,invoce. mulft, or fine. b jralbj*ocne imported a liberty or priviledge of Faldage, debarred and denied unto Tenants in times paft, and by the Lord, for the in- riching his own Demefne lands, referved to him- Faldwrth. && Hence their word, Faldwrth, for him that enjoyed fuch a liberty. Shall I now give you one example from the Normans? Nullus enim Socnam habet imfune feccandi, fay the Laws of Hen. i. cap, a Tenure or a Cuftome. 135 cap. 24. fpcaking of Barons having Soch. And (to enlarge yet a little further touching Soc, &c.) as it iignified a Liberty, Immunity, Franchife, Privi- ledge, Jurifdidion, &c. fo withall a Territory, Pre- cind, or Circuit, wherein fuch a Jurifdidion, and fuch Priviledges were to be exercifed, and that as well in a fimple, as a compounded notion. Hence (for the former) Socha of this and that place fo obvious in Domefday-book, whereof fome inftan- ces in Ingulphus^ by name, Soka de ^Donnedike* Soca de Beltisford, Soca de Tad, Soca de Acumes- bury. In this fence it frequently occurrs in Hen.i. Laws, where you may alfo often meet with c Soca ' T tacit orum qitam qutdam habent infeo de fias y and other fuch like paflfages. In the fame fence the ?*>) and df- Regifter hath it, fol. i. a. as alfo Braffon, lib. 5. whcrc * trad. i. cap. 2. num. 3. In the Statute de Ga- ve/efo, made anno 10. Edw. 2. (where the Cufto- des, the Guardians of the Soke, are termed So- Sokcrevt kerevi, of Dr. Cowell turned by Rent-gatherers) and in the Statute alfo 32. Hen. 8. cap. 29- it is ufed accordingly. Thus of Soke, or Soken fimply. In compofition it occurrs often with Tort. As for example, the Knighten-gild, fometime in or neer Eaft-Smithfield London, ereded firft by King Edgar, and confirmed with fome inlargement af- terward by fucceeding Kings, (being a portion of ground enfranchifed with fpecial liberties, to be enjoyed within that extent of it fet forth by* Stow) * Survey of was anciently called a Soke, and afterwards, (be- Laadoa P a g caufe lying by Eald-gate, now Algate, Tort being added, or rather prepofed to it) Tortfoken, being for extent and otherwife, I take it, the fame, which at this day is known there by the name of Tort- T 2 foken- Jbken-Ward. Here now we find it reftrained to a part oncly of a City, a particular Ward, but in fome ancient Charters of Liberties granted to fe- veral Cities, and other like places of this King- dome, and particularly to London, you may find it fpreading it felf to the utmoft skirts and liberties loftit. of the ity without the wals r as in H. 3. c Char- pag * ter to that City, ann. u. of his reign: Et quod infra muros civitatis, neque in Tortfokne, nemo ca- fiat hofpitium per vim* fed per liber at ionem Mare- fchalli, &c. The like occurrs in feveral charters to the city of Canterbury, whereof one ('tis Henry the feconds) thus : Concejft etiant eis quiet ant iam mur- dri infra urbem, & in *Portfoka, <& quod nullus, &c. Another (of Henry the thirds) thus: Con- cejfimus etiam quod nullus de vivitate vel ^Portfoka fua c aptus vel re Status de aliquo crimine , I read ex- duous or capital matters referved to the King and tit#oenam* his Juftices. Hence, to have Socne, or to be fo as the 24th priviledged, after a book of Chriftchurch Canter- cha P terhathit - bury, is aver fraunche court de fes homes, anfwer- able to that of Fleta, lib. i. cap. 47. Soke (faith he) fignifcat libertatem curia tenentium, quam So- cam appellarnus, as alfo to what I read in an old Ms. amongft other etymologies, of this kind: Nota quod Sok eft qutedam libertas, per quam JJomini tenebunt Curias fuas, & habebunt jeffam homagi-? wum. A greats Lawyer of our. times gives it this *Su&to.Cok*, definition.: Soc (faith he) is a power or jurifdittion Ioftit * *" * to have a free Court, to hold plea of contracts, co- p tenants, and trejpaffes of his men and tenants* Within a little after he proceeds to derive it, in a different way (though not without fome company) to what is here afore-propofed ; how rightly judi- cent alii. Shortly, Sbc, Soke, Sbcne, and the like, (not to mention its derivation in Clement Reyners k Onomafticon, and fome others) betokened, we fee, h Before We both a Liberty, Priviledge, Franchife, &c. and a *&<***> *< ^ . ^ T. . , . r , T -i nediiltmrttm n Precindt, or Territory, wherein fuch a Liberty, &c. was exercifcd, if you will, a Sokmanry. And refolving our Socage (the Tenure fo called) to be deriveable from Soke, considered under one of thefe acceptions, I flood irrefolute a while to whicji GAVELKYND, whether which of the twain I fhould referr it. Once I intended to pitch upon the latter: and then me thought, as the territory, precind, extent, circuit, &c. of a Lordftiip or Manour was called Soca, and Socmanria, fo probably the men of that Territory, Precind, &c. in refped of their relation to that Soke, and their dependance upon it, and the Lord thereof by Tenure, were termed Socmanni, that is, men apperteining to the Soke, or Lordftiip, quafi Soc and thus I make it good. r Amongft other forts of land, our books are full of that called Terra fervilis, Villein-land, land hold- en in Villenage, fervile land, fuch namely (for ful- ler explanation of it) as that holden at the Lords will, both for time and Cervices; in both refpe&s uncertainly ; for time, it being in the Lords power (of old m at leaft it was fo) tempeftwe, or intern- vidcBr*5fc, peftive, to revoke, and refume the fame out of the o1 - l g*- a - & Villeins hands into his own, and for fervices, the 2 8.b. 7 tenant being altogether ignorant, and not knowing over night what fervice may be required of him the next morning. He might alfo have greater or 3 letter 140 GAVELKYND^ whether lefler taxations laid upon him, at his Lords will : nor might he marry his daughter without a Fine to his Lord, for his leave and licence, & ita femper te- nebitur ad incerta, faith my Authour. Now to de- fend land againft the Lord from Villenagc, and to come off acquitted of this fervitude and fervile con- dition, it was and is neceffary of the tenants part to (hew a tenure of his land, by oppofite and con- trary fervices to thofe in Villenage, that is, per cer- to, fervitia, by certain, exprefle, definite, fervices : and, as other wife it may be concluded, that his te- nure is Villenage, fo hereby, if the fcrvice tte not Regal, or Military, it is as cleerly Socage. For, that certa fervitia, are a fuperfedeas to Villenage, and do make it to become Socage, proofs are obvious. To this purpofe confult we Bratfon, lib. 2. cap. 16. num. 9. as alfo eod. cap. num. 6. where he is expreffe for the tenants acquital from all other fervices, (fome being .expreffed in the Charter made him by his Lord) than what are fpecified therein : Alia omnia fervitia, & confuetudines qua expreffa nonfunt tacit e widen- tur effe remiffa: and fat is ac quiet at ex quo fpeciahter non oner at. See him again, eod. lib. cap. 3 6. num. 8. at thefe words: Cum teneatur Sockmannus defender e tenementum fuum erga 'Dominum fuum per ctrtum redditum in fecunia numerate, *uel per quid tale, quod tantundem valeat, qua conftflunt in pondere, numero, *uel menfura, in jolido *vel in liquido, Jicut frumento, vino, oleo, fecundum quod redditus diverji- wode accipiuntwr, &c. . Have recourfe alfo to the fame Authour, lib. 4. tra&. i. cap. 23. num. 5. at thefe words : ^Dum tamen fervitia certa funt , p autem tncerta fuerint, qualecunque fuerit tenement um, tune ertf Vtllenagium, &c. And, as agreeable hereunto, 3 that a Tenure or a Cuftome. 141 that of Sir Edw. Coke, in his Commentary upon Littleton, Seft. 1 20. To Tenure in Socage (faith he) terta fer-vitia do ever belong. Hence it is, that the Authour of the Terms of Law, expounding Socage, or tenure in Socage much after the fame manner v/ith BracJon, ubifupra, (to wit lib. 2. cap. 16. num. 9.) faith, that to hold in Socage, is to hold of any Lord lands or tenements, y ending to him a certain rent by the year for all manner offervices. You fee it proved then, that certa fervitia, certain fervices, fo they be not military, make a Socage tenure. The ground whereof is obvious, viz. that by fuch te- nure (fer certafervitia] the tenant hath a Soke, apri- viledge, an immunity, a Quietus eft, as from Villen- age in general, fo from all villein, military, or other fervices than thofe by contrad, or cuftome n charged a vide LL: upon him : a Soke, I fay, whereunto agium being *[* Q^; added, fignifying the fervice or duty to be returned Not ad'w- fbr that priviledge, it comes forth Socagium in La- mer - ? 35 tine, Socage in Englifh, as, by putting man to Soke, pag * ! 4 * the Tenant is fignified, and called Sokeman. But if objection. Soke here carry with it fuch a fence, (of Immunity, Difcharge, Priviledge, &c.) how comes it then to paffe (may fome perchance demand) that liberum is often found to accompany Socagium, as liber alfo doth Socmannus ? For anfwer, 1 conceive, to dif- Solution; tinguifh Free Socage from Bafe. Not but that Bafe Socage had its priviledge as well as the other, as be- ing holden by fervices fet and certain, or determi- nate ; but in regard thofe fervices regularly confif- ted in fervile works incident to Villenage, the te- nure gat the name of Villanum Socagium, to diftin- #*#*, lib.*: guifh it from Liberum Socagium, acquitted of thofe f p '^ n "et fervile works, and confiding in denariis. From hence called U hence GAVELKYND, whether hence alfo (fuch a Sake, fuch a Priviledge) it is, that the Villanum Socagium in the Kings Demefne is turn- f Foi. ;..&>]. ed oftBratfon and others, by Villenagium privile- i 7 i a' foi* g* a t um - By tne way, hence judge whether I am 109. a. F/rfa, not right in my derivation of Socage from Soc, Soke, lib.!. cap. 8. & c a Priviledge, &c. when here you fee Villanum Socagium of Braffon and others, rendred by Villen- agium privilegiatum, i. e. priviledged Villenage. Tis time now that we inquire how this deriva- tion will fuit with thofe before remembred tenures, By divine fervice, in Frankalmoigne, Fee-Ferme, Te- tite Sergeant} ', Efcuage certain, Burgage, and the like. Whereto I anfwer, Very well. For, as they were all, through a tacite di (charge from corporal fervice in warfare, excufed from military Fee, or Te- nure, fo on the other fide, by reafon of an exprefie tenure per cert a few it ia, or per certum redditum^ com- mon to them all but Frankalmoigne, they were ren- dred quit and free of Villenage, and confequently became of Socage tenure. As for Frankalmoigne ; as it may challenge an intereft in the compofition of Socage from Soc or Soke, and agium, to wit, in the former fyllable, fo on the contrary fide, hath it as little to do with the latter, becaufe fuch tenure is quit of all fervice whatfoever, as well fpintual, (un- coke upon kfle i uncertain) as temporal. But becaufe as it hath not to C J Q w ^ m jij tar y fervice on the one hand, fo Irmkalmotgne. . j i i neither with Villenage on the other, and hath its priviledge exprefied in that epithete of Liber a, it is referred to Socage, as in fome fort fuch. This then is that (this tenure per certa fervitia] that makes tenure By divine fer-vice, of.no relation to the plough, to become Socage. This makes alfo Fee-firme, a mecr cenfual fervice, (much in the na- ture a Tenure or a Cufiome. 143 ture of that which among 1 Civilians is called dger ' Lib.i. ff. fi. uetttgalis] as being liable onely to fo much yearly a s- vcai g ai * rent,without any other fervice regularly, unlefle Fealty, iuit of Court, or the like, according as the Feoffment may run, and having nothing to do with the plough, to become Socage. This makes Efcuage certain^ an- other tenure of no relation at all to the plough, but quatenus Efcuage, as it is fimply Efcuage, eo ipfo y of f Knight- fervice, becaufe by being certain it draws him f a& 01.37. not forth to any corporal fervice in war, to be alfo a< & 79< b * termed Socage, whileft contrary wife what is properly called Efcuage, that namely which is uncertain, and fo called, becaufe (befides its fubje&ion to Homage, Fealty, Ward, and Marriage) it is uncertain how of- ten a man fhall be called to follow his Lord into the wars, and again what his charge will be in each jour- ney, from being liable, I fay, to this uncertainty of duty, is * Knight- fervice. Hence (fourthly) it is that ' Dr. cw/. Burgage (a tenure no way fmelling of the plough, or 5l p vcrb * tillage, being currant and converfant onely in cities' and towns) becaufe holden for a certain annual rent, becomes with the reft Socage. Hence alfo ourKent- ifh Gavelkynd, conftdered in its name or term, (be- tokening cenfual land) of no affinity with the plough, or plough- fervice, becaufe, I fay, holden per cert a fervitia, comes to be called Socage. The like might be faid of Frank ferme, and other the remaining fpe- cies of Socage-land : one and all, as properly fo cal- led, as rightly, and with as much reafon referred to that head of our Englifh tenures, as that which for its plough, or tillage, fervice is faid to be more pe- culiarly fo called, {landing not in need of that di tin&ion which the common opinion ufeth to bring them within the compafle of it, called ab effetfu, be- U 2 caufc 144 GAVELKYND, whether caufe of like effeds and incidents belonging to them with Socage tenure ; a di&indion by this derivation rendred frivolous and needlefife, and under favour coke inftit. therefore as fit to be laid afide, as their u affertion is P ar< _ ' * 1 *, 6 ' to be retracted, who, to vindicate the reteining of D. aCOm IMC- r r> /- /- \' r\ n jnents.tKMSU. the name of Socage, as of ufe onely to diftinguim P-3<^ that from a tenure by Knight- fervice, affirm that the caufe wherupon the name of Socage firft grew* *uis&. Plough-fervice, is taken away, by the change of fuch- fervice into money, whereas prefuppofing our pre- fent derivation of Socage to be admitted, both name and caufe ftill continue. Thus much for Socage, a term that tome firft occurrs in(?/rf#i>///, never as yet To Archiv. in any elder Record. In a Roll of * Accompts of the Arcbic P .Cant. Archbilhop of Canterburies mannours, for the fixtb year of Archbiftiop Baldwin (Glawuills Coaetaneaa and Companion in his voyage and expedition, with King Richard M^K. firft, to the holy land) which by computation was the year of our Lord 1190. it oc- currs by the name of Soggagium thus : Super Sog- gaglum London remanent xx. d. and this in Croy~ don manour there, amongft the expences and deducr tions following the receipts of that year. Which I mention, not as conceiving it no elder than Hen. 2. dayes; y es I rather hold Socmannus, Socmanria, and Socagium to be relatives, and confequently that where the one occurrs, the reft are implied: but Socman- mis is obvious in Domefdaybook, and lefie ancient, therefore I perfwade my felf Socage and Socmanry are not. Nunc age, carpe viam, fufceftum perfice munus. Now therefore to come to our j^m, (whether Gavelkynd be a Tenure or a Cuftome) and give it an anfwcr : a Tenure or a Cuftome. anfvver : I confeffe there are that in fome fort hold the negative, as who will have it to be a Cuftome accompanying the land where it obteineth, rather than a Tenure whereby the land is holden, holding the whileft the Tenure to be Socage : And of this opinion y Mr. Lam&arddoth more than feem to be. y Pcrambui. Now between Tenure and Cuftome in this cafe with . w ^ J 7 us, the difference, as 1 colled, ftands thus : admit it onely a Tenure, and then the nature of the land is not concerned in point of defcentj fo that in fome cafes (as the efcheat of it by Death or Ceffavit, to- the Lord that holds over by Knight- fervice, or to the Crown by forfeiture in treafon and the like) it cea- eth to be any longer of Gave/fynd-naLturc, in point of defcent, and goes not, as before to all, but onely to the eldeft of the fons, according to the courfe of the Common Law : whereas if it be a Cuftome follow- ing the nature of the land, then it is, fay they, in- feparable from that land where it obteineth, info- much as notwithftanding this efcheat, or whatever other alteration of the tenure, it remains, as before, partible among all the fons, or other heirs where fons are wanting. But to the point. To prove Go* flet * ls "* velkyndtQ be a tenure, I (hall not need, I think, to- J-^ cTp.^i 7 multiply authorities, the generality of thofe ancient deeds that I have feen for the granting lands in Ga- velkynd (whereof fome are exhibited in the Appen- veiiyaJe, dix) ace wont to have their Tenendums (the ufual and **?!*' r , r tarttbtltstfl&c. more proper place for the creation of a tenure in any < kind of grant) thus phrafed : Tenendum either ^or ri m Gavelikendam, or the like. The office recited of Mr. Lambard, in hisPeramb. pag 540, found after the death of Walter Culpepper is alike phrafed : Te- nult in Gavelkind bein? a^jnuch repeated paflage in it^ The 146* GAVELKYND, whether The Statute iB.Hen.6. cap. 3. in terms calleth it a tenure, taking knowledge, that there were not at that day within the Shire above 40 perfons at the moft, which had lands to the yearly value of xx. pounds without the tenure of Gavelkynd, and that the greater party of this County, or well nigh all, was then within that Tenure. And this alone (which I (hall add) may evince and clear it to be a tenure, that fince the Statute of Quia emptores t err arum, an- no 1 8. Edw. i. prohibiting the fubjeft to let land to be holden of himfelf, as there are not to be found * sptlm. Glofr. any more grants of land l pro homagio & fervitio, verb. H**gi. fo neither in Gavelkynd. For brevity fake, I will Objection. urge no more authorities of this kind. Being thus then apparently a tenure, how cometh it to pafle that we fo ufually call it the Cuftome of Gavelkynd, feldome either making or finding mention of Gavel- kynd, but with that adjund, and under that notion Solution. of Cuftome ? Indeed the property of equal partition is and hath fo long been of that eminencie in our Kentifh Gavelkynd, and is fo much celebrated for that property, that as if it were the fole and onely property of it, all the other, in refpeft wherof this land may as well be called Gavelkynd as for this, are as it were forgotten, and that onely carries away the name from its fellows : whereas that of Partition (as hath been faid before) is but one among the many Hereof fee other properties and cuftomes in our Kentifh Gavel- Bration, foi. tynd, fuch as *Dower of the Moyety ; a LoffeofT>ower ^ whereof a)fo fy marriage before or after ajfignement , b Not to for- in him, foi. feitt lands for Felony ; *Power of alienation at fifteen years of age, and the reft obvious in the Kentifh Cuf- tumal. And becaufe this, of Partition, amongft the reft, properly depends of Cuftome, as thwarting the courfe a Tenure or a Cuftome. 147 courfe of the Common Law in like cafe, hence the Outer e grew at firft, whether Gavelkynd were a Cuf- tome or a Tenure. Indeed a very improper and in- congruous Quaere, and occafioned by the want of that diftindtion of the Genus from the Species, which through inadvertencie are here confounded, Gavel- kynd being the Genus, and 'Partition the Species. So that if we (hall but reddere Jtngula Jingulis, this doubt will quickly have an end : Gtvvelkynd generally G4t><%*/-par- fpoken of and in grofie, is the Tenure j particular- tition.whether i j i r i T /-/" inherent m the ly, and with reference to this Partition, it is a Cul- iand,omot. tome accompanying the land of that Tenure. Or, if you rather will, Gavelkynd is the Tenure; Tarti- tion, and the other properties, the Nature. Which Solution gives occafion of another Qu in Anno 9. " Jacobi Regis, all the lands were devifed by Will, " and after the Will was avoided for a third part, " by reafon of a Tenure in capite of a fmall part " of the land, and the third part of all the refidue " f the lands, being Gavelkind, did efcheat to the " King for want of Heir, which land is ever fince " enjoyed under the Kings title by efcheat. And. " John Wall upon a trial recovered againft IPhite " the Devifee. " Whereby it is evident that Gavelkind Lands in- " Kent were never devifeable by Cuftome, and fa " it was agreed per curiam fafch. 37. EL in C. B. " in Halton and Starthops cafe, upon evidence to- " a Jury of Kent, and it was then faid, that it had " been fo refolved before, and there it was faid^r " curiam that Fitz. Nat. Brev. 198. /. is to=be " underftood where there is a fpecial cuftome, that " the Land is devifeable, &c. " And he that (hall conclude upon that place of " Fitz. Nat. Brev. 198. /. that all Gave/kintfLand " is devifeable, &c. may as well conclude, that all " Lands GAVELKYN D-LAft D, whether 11 Lands in every City and Burrough in England is " devifeable, which is not To, as appear eth by Mr. " Littleton, who faith that in fome Burroughs by " cuftome a man may devife his Lands, &c. " And 'tiGtwelkind Lands were devifeable by cuf- " tome, &c. Then a man may devife them by " word without writing, as it is agreed in 34.. H. 8. " 'Dyer. 53. for a man may devife his Goods and " Chattels by a Will Nuncupative, fo may he like- " wife devife' his Lands devifeable by cuftome, be- " caufe they were efteemed but tanquam cat alia, &c. " and it would be a mifchievous thing, if all the " Gavelkind in Kent fhould be devifeable by word " onely. To thefe arguments and obje&ions againft the cuf- tome, certain anfwers and exceptions by the learn- ed Counfel of the adverfe party have been framed and returned in behalf thereof, reducible to three heads : which (to avoid all juft fufpicion of partiality and prejudice wherewith fome zealous advocates and contenders for the cuftome have been, and may again be, ready to afperfe me) I fhall here fub- joyn ; together with fuch anfwers and arguments (by way of reply) as I have received from the learned Counfel of the other fide, in further and fuller refu- tation of theirs who endeavour to uphold the cuf- tome. ' '* ' The learned Counfels arguments in behalf of the Cuftome. " IT'Irft, they deny the old book of 4. Edw. 2! r " Fit&h. Mort dance ft er 39. to be Law. But " an Aflife of Mortdancefler lies of land devifeable, " if devifeable by Cttftome, or not. I j 7 lib. i.; fol. 272. " Ubi non jacet djpfa mortis antecefforis y among Y his GAVE.LKYND-L AND, whether "his pleas in abatement of the Writ, (having bc- " fore treated of pleas in barr to it.) Cadit dffifa * ' +s*J J " (fayes he) propter confuetudinem loci, ut in Civi- " tatibus, Burgis, c. and 22. Aflif pi. 78. where " upon the like plea the Writ was abated : and " Fitzherb. Nat. Brew. fol. 196. I. (whofe autho- " rity they think ftrange to be denied in a matter " of Law, wherein he was a Judge, and yet fo < c ftrongly relied on in a matter of fad: and cuf- " tome, in a place whereto he was a ftranger :) and " fo was it praftifed and allowed in Itin. Johan* " de Stant&n, 6. Edw. 2. " And the reafon given by the book, why fueh " a cuftome is pleadable in abatement to this Writ, " is becaufe the fuggeftion of the Writ may be true, " that the Anceftour died feifed, &c. and yet the " heir have no title where the lands are devifea- " ble. And it is the property of this Writ, that " the dying feifed muft be traverfcd 5 and though " the Tenant plead the Feoffment of the Ancef- " tour, or other matter in barr, (that is not mat- " ter of Eftoppell to the heir, as a line, Recovery, " &c. ) yet muft he traverfe the dying feifed, and " the Jury fhall be fummoned and charged to in- " quire, if the Anceftour die quo obiit feifitus fuit, *' &c. and fo are the books of 9. Aflif. pi. 22. 27. . followed with Seifin in the Alienators lifetime 5 yet by the feudal c Law, are indifpofeable by will, feveral tutum, parag. reafons whereof are found rendred by the d Feudifts. And as it is inconfiftent, and at variance with the common opinion of Lawyers, both at home and a- broad, fo withall, and above all, it makes Gavel- kynd degenerate from it felf, and its firft original, which our e Lawyers and Antiquaries, by an unani- mous vote, referring to the Germans, vouch for it tit. 19." that, amoneft other of their Cuftomes publimed by ' V b> 'L! ? - . ,-? j r /r r r - - rr J defucceflCfeud. Tacitus : Htfredes fuccejjorejque jut cmque liberty & & vulteiui Hb. nullum t eft amentum: a paflage, or authority, equally * cap. 9, num. infifted on by the Feudifts to warrant their f Nulla l' HotomAn up . ordinatione defunct i infeudo manente ijel *valent e, pro- onthatphccof hibiting the difpofal of Fee by will, and of our mu- t h ^J^ ds ' Per . nicipal Lawyers and others, as for the like, fo with- amb.pag.j-i8. all to illuftrate the original of ours Gavelkind. to.spelm.Gioi- n.L i i_ i i- i rrrL\ lar.verb. Garvt- But that which in this cafe (as to matter of faa) ^^ very much, if not moft of all, works with me, (what f Fcud. lib. T. it may with others I know not) and induceth me to J^jf V e d u d. u & an utter dif belief and rejection of this Cuftome, is Hotoman. ibid. certain paflages and claufes in feveral wils extant * and DI GAVELKYND-LAND, whether V and to be found in our Regifters at Canterbury, and in that at Rochefter, intervening and happening in the interim of thofe two Statutes $ the one otUfes, made anno 27. the other, of Wills, inaded anno 32. Hen. 8. (a time moft proper for the Cuftome, if any fiich in being, by its fruits, the immediate free devife of lands by will, atpleafure, without that me- ditate, collateral and by-way, that feriphrajis, of FeofFments and their Ufes, which now was out of doors; to aflert and fhew it felf:) all which (in my opinion) do plainly tend to the dif-proof of this cuf- tome of devifing lands in Kent by will, before that Statute of wills. As for example. i. In the will of Thomas Bourne of Tenterden, dated 3. May 1538. in the Archdeacons Regiftry at Canterbury, lib. 2 1 . quatern. 7. And where (faith he) there is an Att lately made to avoid ufes of wills, yet my mind is that Clement my fon Jhall have my houfe and flsop in Tenterden with th' appurtenances to him in fee. And that John Bourne my fon flail have all my lands lying in the parifh of Hawkherft to him and his heirs in fee. And I give to my f aid fon John xl. s. upon condition that he will abide and ftand to the dividing and order of my lands, as my mind is before expreffed. And if he will not ftand to, and abide the faid order and divifion, but to fbift his part throwly, then I will the faid xl. s. fhall re- main and be had to Alice my wife. Alfo I give to Clement my fon iij.l. upon condition that he do ftand to and abide the divijion and order of my lands and tenements, according as my mind is before expreffed. And if the faid Clement do refufe my faid order and divijion of my lands, and fhift his part throwly, then I will the faid iij. L foall remain and be had to Alice my wife, &c. 4 devifeable by Cuflome^ or not* 1 6 j Had there been a Cuftomc for devifing lands by will, what needed that notice to be taken here of the Ad for avoiding ufes of wills ? And why is the Teftator put to it thus, to work and wage his fons to confent to that partition and diviiion of his lands, by a Legacie in money to be forfeited upon their refufall, and for choofing to fhift or divide throughly, as a thing in their power by Law, which could not be, had there been any fuch Cuftome. 2. In Thomas Sayer, alias Lamberds will of Fe- verjbam, dated in May 1538. in the fame Regiftry and Book, quatern. 9. fome lands are devifed away from the two female Inheritrices, to be fold : and a partition alfo made between them of other lands. Whereupon a Legacie in money is given to the heirs at Law, to wage them to confent and condefcend to that devife and divifion, in thefe words : Item I will and bequeath to Ifabel and Margaret my two daughters, to each of them 6. I. i}.s. 4. d. to be paid to them by Benet my wife in money, or money -worth, in four years next after my deceafe* upon condition that my faid two daughters, their Heirs and their AJJigns, to fuffer this my prefent will and teftament to take effect, according as I be- fore have willed. And if my faid two daughters, their Heirs and their AJJigns do this refufe, that my faid will can take none effett, according as I be- fore have willed, then I will my faid two daugh- ters, nor their AJJigns, Jball take no benefit nor profit of none of my bequeaths to them before bequeathed, &c. Z Argument. 166 GAVELKYND-LAND, whether ^. . ' ' v ' ' \ Argument. The fame Quaere here as before, viz. What needed this conditional Legacie in money, had it not been free to them and in their power and choice, whether his will (for the fale of fome land, and for the divifion of other) fhould take effed, or not? 3. In John Crowmers will of Fogylfton Efquire, dated in February 1538. in the fame Regiftry, book, and quatern. this claufe to our purpofe is remark- able. Item I will that each of my three daughters, Benet, Elizabeth and Grace, hafve 13. /. 6. s. 8. d. offuch debt as their husbands do ow me :fo that their hus- bands be content that fuch lands as I have purchased go according to my devife and will, or elfe not, &c. Argument. The like Qn&rie here as before. Where alfo note, that although he mention a devife of lands by will; yet no fuch will is either proved or regif- trcd, becaufe (probably) null and void in Law. The like whereof may be fuppofed of Sparcklins will f Thanet, dated in March 1 5 39. in the fame book and Regiftry, quatern. 14. where his man- lion place at Bronflon is faid to be bequeathed to his fon John : whereas no fuch thing appeareth by the approved will ; nor is any land at all devifcd by it. The like may be faid of Cacherells will of Norborne, dated anno i<537- in the fame- Re- giftry and book, quatern. 8. where fome Legacies in devtfcable by Cuflome^ or not. x 67 in money arc charged upon a houfe there faid to be given to the party charged and his wife, whereas no fuch gift appeareth by the will. 4- In Sarfys will, dated anno 30. Hen. 8. in the fame Regiftry and book,quatern.i i. where he maketh mention of his three daughters, we have this claufe : Item, I will that he (my brother) Jhall have my fart of my houfe at Wy, called Jancocks, during his life, if that may be juffered by the Law, &c. 5 . In the will of William Byx of Linfted, dated 1538. in the fame Regiftry, lib. 22. quatern. I. oc- currs this paflage : / will and bequeath all the profits, commodities, fermes, rents, of all my lands whatfoever, &c. unto my brother germane, Laurence Byx, unto the times that my fins, Laurence and Nicholas, come to the age of 22. years, &c. Alfb to my daughters marriage io./. to be raifed out of thofe profits, &c. and faid by my brother Laurence. T rovided alwdy, if the Law will not fuffer nor admit my brother Laurence to en- joy and take up the fermes, &c. of my lands, then 1 will that each of my faid fins, &c. Jhall fay the faid io. /. unto my faid daughters marriage, &c. 6. Thomas Hunt of Thickly in his will, dated in the year (no moneth) 1 540. (probably fome time before the Statute of Wills that year made) in the fame Regiftry, book and quatern. gives to his wife the iflues of his lands for life, and after her death the lands themfelves to his fon John, charged with fome Legacies in money to his younger brother An- thony and his children : but with this Trovifo : If this my will (faith he) ftand not good and ef- fecJua/l in the Law, then I will that my faid mef- Cuage and fremiffes after the death of my faid wife Z 2 flail GAVELKYN D-LAND, whether fball remain to my faid two fons I. and A. and to their heirs for ever, &c. 7. The like claufe to this occurrs in the will of John Hubberd of Wefterham, dated the 23th of July 1 5 3 7. in the Bifhop of Rochefters Regiftry : viz. Alfo if it do pleafe God to vijit my wife and all my children with death, then I will that Richard Hubbard, the fon of William Hubbard of Lynsfield Jhall have my houfe and all my land, if that the Law willfuffer it : paying therefore to every one of my fifters, Agnes, Katherine and Margaret, three founds fix fallings and eight pence ', to be paid within the fp ace of two years next after my deceafe. 8. Nor is this paflfage lefTe pregnant and pertinent to our purpofe, taken from the will of John Stace of Leigh, dated the i8th of March 1538. in the fame Regiftry. And alfo I will that if the Kings laft Att in 'Parliament will not ft and with my wife to enjoy the one half of my lands, I will then that mine Ex ecu- tour Jhall pay yearly to Agnes my wife xl. s. during the term of her life, and that to be paid quarterly at the four ufual terms by equal portions, &c. Argument. In thefe five laft wills mentioned (Sarlys, Byx, Hunt, Hubberd and States) what means that doubt and queftion in the Teftators, whether their devifes (of houfes and lands) were good, or would hold and ftand firm in Law, had there been fuch a Cuftome, and had not the Law been clear otherwife in this cafe, as well in Kent as elfwhexe ? 4 lob- devifeatte by Cuftome, or not.^ j 6 9 I obferve alfo, that in the interim of 27. and 32. H. 8. fome few (and indeed but very few) wills there are in the Regifters at Canterbury, wherein lands are deviled : fome with Feoflfment, and fome without, at leaft without mention made of any. As for the former, thofe with Feoffment, I find the moft of them dated, though in or after the year 27. yet before the fixth of May 28. year of that King, until when the Aft was not to come in force. Be- fides, happily the FeofFment was made before the Statute, and fo could not be revoked (as I con- ceive) without the Feoffees confent. As for the reft (thofe without mention of Feoffees) fome of them were of our City (Canterbury} or the like places, where by particular Cuftome they might devife. O- thers (happily) had Feoffments, although not men- tioned. If not, they were no other (I conceive) than wills de fafto, or de bene ejfe, made : nor did or could other wife, or further operate, inure, or take effed than the interefifed or concerned parties fhould give way : with whom in thofe elder times (times of more and greater regard and reverence to the will of the dead than the prefent) the dying pa- rent, or kinfmans mind declared in his will, bare fo great a fway, and did fo much prevail, as to per- fwade with them to renounce an advantage to thtm- felves, for the fulfilling of the deceafeds folemne and declared mind. Befides, it follows not, that becaufe fuch wills and devifes are found, therefore they pa(Ted and were allowed of as good and ef- feduall : the contrary whereof is more than proba- ble by the ifs and conditions found in other wills of thofe times, arguing plainly the Teftators di truft and doubt of the validity, and confequently of the 170 GAVELKYND-LAND, whether the fuccefle and effcd of his devife, whereof exam- ples are laid down before. 1 Before I clofe and wind up all, I have onely this to add, by way of offer, from the party opponent to this Cuftome, and his Councel, (which, as a mat- ter much confiderable, I may not pretermit : ) that, whereas that abundance of wills wherein lands are devifed without mention of Feoffees, found and pro- duced from the Regiftries both of Canterbury and Rochefter, is much infifted on in behalf of the Cuf- tome : if from the Regiftries of any other Diocefle out of Kent, (where fuch devifes never did, nor could obtein, until the Statute of Wills) of equal circuit and extent to either of thefe, the very fame thing may not as truly be obferved, and a propor- tionable number and quantity of fuch kind of wills, (wills of lands devifed without mention of Feoffees) cannot be produced, and confequently the argu- ment and inference thence drawn (for the Cuftome) eluded and avoided, they will fit down convinced, and with their adverfaries fubfcribe unto that argu- ment. An offer (this) in my judgement fo fair, in- genuous and plaufible, as not to be rejected of any, but fuch as out of a cavilling fpirit, are refolved to turn the deaf ear upon all fair and equal propofals: that I fay not, fuch as, for maintenance fake, make it their ftudy, quocunqite modo, to maintain their fpurious intereft. But that I may not feem to be (what indeed I am far from being, any otherwife than in truths behalf) a partifan in this bufineffe, I fiiall forbear all further cenfure, and if I may but have the Readers leave to make my Epilogue, I fhall, wich thanks to him for that, and the favour of all his other patience, quit the ftage of my difcourfe on this whole argument, and make my Exit. Ma- devifeable by Cuftome> or not. 171 Many other things offer themfeives to his difcourfe, that would treat or' Gavelkind to the full 5 but tkey are (I take it) moftly points of Common Law, which becaufe they are not only out of my profefllon, but befldes my intention too, which was to handle it chiefly in the hiflorical part, and that no further than might conduce to the difcovery of the 'Primordite, or beginnings of it, I will not wade or engage any further in the argument, left I be juftly cenfured of a mind to thruft my ficle into another mans har- veft : onely (for a clofe) craving leave to fupply the common Kentifh Cuftumal, at the end of Mr. Lam- A claufe want- bards Perambulation, with one claufe, which, ac- l, n r f nt( lj cording to an ancient copy regiftred in a quondam tifh Cu book of St. Auguftines Abbey at Canterbury, now fu ?P licd - remaining with my very noble and learned friend Sir Roger Twyfden, is to come in at pag. 574 lin. 2. after thefe words : Que de lay eft tenu fans men. viz. (as that old copy goes on there : ) E Jl home OH femme feit feloun de fei mefmes qe il fey mefmes de gre fe ocye, le Roy aura les charteuz tuts & nient I' an ne le waft, mes le heir feit tautoft enherite fans contredit, kar tout feit il feloun de fey mefmes, il neyt my atteint de felony e. Et clayment auxi, &c. as it follows in that printed Cuftumal. Which claufe, as I conceive, may be thus Englifhed : And if a man or 'woman Jhall be a Felon of him or her felf, who fh all kill him or her (elf of his or her own accord, the King fball have all the Chattels, and not the year and the wafte, but the Heir fball immedi- ately inherit without contradiction : for albeit he or fie be a Felon of him or her felf , he or jhe is not at- tainted of Felony. 4 Now 17* GAVELKYND-LAND, whether, &c. Now craving pardon for what liberty I have ta- ken to deliver my fence, and give my conjefture, on feverall occafions here emergent, I fhall here cut the thred of this Difcourfe, wifhing that as I have not fparcd freely to fpcak my mind, fo that every man that pleafcth, fhould affumc the like liberty, not fufpcfting me fo opinionatc of mine own vote, as to wifh, much lefle to beg, leaft of all to impor- tune any unwilling mans concurrence, though haply unprovided of a better of his own, difclaiming that maguterial boldnefle of him arrogated, that faid once upon a like occafion : -fi quid novifti rcftius iftis Candidus imperti, Jt nan* bis utere mecvm. And (to wind up all) wifh every man, in what he ftands in doubt of, to be his own Ofdifus. ij. de pent. *Da "jcniamfcriptis : quorum rum gloria nobis CoHfasfed utititas, offictumque fuit. A N A N APPENDIX O F - vide pag. Such MUNIMENTS (viz. CHARTERS, and other ESCRIPTS) as are quoted in the precedent Dilcourfe, with reference to this place for tran- fcription. Charta pervecufta de terra ad Cenfum con- cefsa. [RNULFUS Prior, & tota Con- gregatio Ecclefa Chrtfli y omni- bus fidelibus f amicis futs falu- tem. Sciatis nos y confentiente J^ Archicfifcopo a Anfelmo, concef- f TC ** fiffe Calvello & heredibus fuis extra civita- r* 4 tern circa caftellum y novem partes terr. p ro redemptione quam heredes facere folent, heredes fui xx. foL dabunt y & Cenfum quern pater prim dederat, ipfe deinceps fimiliter dabit. Teftes horum funt Folbertus de Cill, Will. Folet, Rogerius films Herengodi, Ro- bertus de Mala villa. [Note that this Charter hath a feal appendant on a labell proceeding from the fide-margent, round, and about the bigneiTe of a five {hillings peece of filvcr, the wax yellow, damped 5 but on the one fide with the form of a Church, much like that in the old feal of St. Auguftmes, in Sir Henry Spelmans Councells, pag. 122. The infcription in the ring of it this: *SIGILLVMEEEIS1A CEISTlTj Charca APPENDIX^ 175 Wibertus Prior & Conventus EC cleft* si p tura *; ^z T *-i / r i 1-1 /* ' Vide pag. /. Lhrijn Cantuar. omnibus jiaelwus Juts, tarn prtefentibus quam futuris Salutem. Sciatis nos concej/lffe Goldwardo filio Feringi ter- ram qu denar. 6f ob. ad rned. Quadragef. fef ij. s. ad feflum S. Michaelis. Tenebit ita- que prtfdi&us Goldwardus de nobis has ter- ras bent @* in pace Sf honorifice jure here- . z J J ditano per fuprafcriptum cenfum^ & lice- bit ei de ipfis tanquam de propriis liber e fa- cere quod voluenty falvo jure & redditu noftro. Ita tamen quod ft eas alicui dare voluent vel vendere^ nobis prius hoc indi- cabit, fef nos ad emendum eas b proximiores fc simile babes rr J 1 <-r* 'ii - ln ^^* ^ ur " ey e aebemus. Terra tlla jacet juxta murum gor. ap ud sco : A 77 / .. tOS. C. loo. a 2, tLleemo- APPENDIX. Eleemofynaritf noflr*. Teftibus Bartholomaeo Dapifero y Will Camerario y Geldewino &? Johanne, Gocis\ & multis aliis. AliaCharta de terra z&Gablum concefsa. 1 3; Robertas Monachus Eccle/ite S. Auguftini, '' Cuftos f Procurator Hofpitalis beatt Lau- rentii, Omnibus Chrift't fidelibus Salutem. Sci- atis me concefTitTe Hamoni textori fef here" vt/ / dibus fuis duas acras terr } & fratnbus //- luts loci. Charta de terra ad Gavelikendam concefsa. 4? Sciant prtOfttjS, Scephano de Marifco, Philippo de JTietpOJt, Godefrido del JjftC, Bricio del I)ftC, Waltero filio Robert!, Gileberto fratre Abbatis. ^fIi^ P'mcerna. Wido Jani- .. tore^ W. Coco, Alex. Hoftiario^ & multts aliis. Apographum 178 cus. APPENDIX^ Apographum proceffus litis inter Burgam de JBttlDttlff, & Priorem & Conventum Ecclefiae Cantuar. De toto manerio de WiltlltS coram W. R. de 3Ctttfcebp, G. de & fociis fuis kinerantibus apud Cantuar. 3. Id. Junij, Anno Domini /?. H. filii R. Johannis i j. Burga ^/^ ^/^ ^^ quod ha- bet manenum illud ex dono prene, w. de )fe^ A. Perot, E. dc Norton, s. de 4 i8o APPENDIX. tymtty B. de Bauiefmm, R. * Cftflfjattt, & Ahrms de JLtgfytS, dicunt fuper facramentum fuum, quod pr nee partitum^ nee eflpartibile^ nee prYi Servitia Tenentium de 5^Dftt Ufft ad red- ditum pofica. cpa8 tres folid. tres denar. & unum quadr. viz. fro tritura* tione cujuflibet fumm# duos denar. * fro ventilatione unum quadr an. Item fro of ere farclandi oBodecim denar. Item fro of ere taffandi in autumfno trefdecim denar. Item fro fimis fpargendts fex denar. & obolum. Item pro xviij. a Cladibus faciendis ad Ovile ' f- r J T '7 T> ' J CU '"' Vld ' Jex denar. item fro cibo rrioris querena. spdm. & fro fervitio quod dicitur Q^O^DttltlD^ Sf fro fomis frangendis duodecim denar. Item fro claufura circa blada y quU)ltll)^P, duos foltdos, decem denar. Sf quadr. Item fro claufura xvj. ferticarum & qumque fedum muri infra Curiam ab oftio Aul|50?tljl^ XbOBt, fef Walteri Ive, pro fe & omnibus aliis Tenentibus de ^JtllatlQ, <^^? requifitionem eo~ rundem, huic fcrtpto cirographato alternattm funt appenfa. ABa funt htec anno fupradtflo* Breve Regis (W j mi ) pro terris monafterii S. Au^uflini Cant, alienatis recuperandis. 13. Will mus Dei gratia Rex Angliae, Lanfranco '' Archieptfcopo Cantuar. &c. Salutem. Manda fe 9 prtecipio ut faciatis S. Auguftinum & Abb at em Scotlandum refeifire bur gum de JfO^QtbtCl), quern tenet Haymo v'icecomes > omnefque alias terras quas Abbas Egelfinns fugitivus, mentis lemtate^ vel timore, vel cu- pidttate APPENDIX, ipi piditate alicui dedit vel habere conceffit. Et c ^ ft Charta W* Regis j mi de reftitutione ablatorum in Epifcopatibus & Abbatiis totius Angli fL Vide pag, 68. eptjcopo Cantuar. & G. hpifcopo Conitantia- rum, Sf R. Comiti de Ou, 6f R. ^7/ quod j. Breve Regis in fubfidium f^illanorum Abbatis S. Auguftini Cantuar. fe gravari querentium in taxatione io m * 8c i j*;, > if". Edwardus Dei gratia Rex Angliae, Domi* Vide pag. 73. T T 1 c-s TA A rr* nus Hibernian, e/ Dux Aquicamae, Tax at on* bus Decimte Sf QuinttedecimdS in Comitatu ^v Cantise, Salutem. Ex parte dile&i nobis in Chrifto Abbatis S. Auguftini Cantuar. nobis eft oftenfum ^ quod vos omnia bona Sf catalla Villanorum ipfius Abbatis in Comitatu pr/iiinff- Radulfo de S. Leodegario, Radulfo Eylgaro de CftttrC, Hugone Cofin, APPENDIX? 195 Cofin, Stephano de BeitattU'tltOtt, Alano de XUatntng, Daniclc de W&WtltS* Hamone de $)0if02t)t, Hamone Alano d? JUfff), Rogero <& , 6f pforibus aim. Chirograplum pervetuflum de Nuptiis contra* & Dote conftituenda. Here appeareth in this writing the agreement scriptufa ~i>. eji j-purelaj? on J)yfan eprure fa j:ojiepapt> that Godwine made with Byrhtric when he his Je Eo&pine pophre pi^ Byphrnic J?a he hij* daughter wooed, that is firft that he gives her fcohrep apo^obe, J? if asjiej-r J he aej:hine one pounds weight of gold * fo as fhe his aner punber epihra xolber pi^ fonne f e heo hir (and upon this agreement received, & he giveth her thofe lands Z%^; j-pasce unfceppen^e, ^ he ^eufe hipe Ipxy lan&ej* fafieech, i. c. at Strete with all that thereto apperteineth,& confentt tb * r*. agreement, or ser Srjiaetre mib eallan pon pe psejiro herro, *] contraa here in Burwaremerfh one hundred and fifty acres, & ma ^ e > and on onBujipajiamejijxe o^ep healj: hunt) secejia, ^ J^/ become b thereto thirty oxen, & twenty cowes, & ten Ws wife, Jisepro j?jiitrig oxna, *^ rpenng cuna, *3 ryn k Wltba11 ' horfes, and ten bondmen. This was c fpoken at 'agreed. hojij*, *3 ryn ^eopmen. Dij* pasj*^e_ppecenser Kingftone before Cnute king in Living cinc^ej-tune bejcopan Cnure cinc^e on Lypn^ef the Archbifliops d witnefle, and in the Covents at * ^epirnej-j-e, *] on ]>xf hipebef aer Chrift- APPENDIX.' Chrift-church, and ^Elfmcres (the) Abbats, and the cpij-rej* cipcan, ^ ^Elpnepej- abbobej-, *~| J>xj- Covents at S. Auguftine, and ^Ethelwines (the) She- hipebej- ser 8. uuj-rme, *j ^EJ>elpmej- f cipege- riflfe, and Siredes th'elder, and God wines Wulfeyes jiepn, ^ Sipebej- ealban, ^ Eobpmef pulfea^ej- fonne, and ^Elfsy child, and Eadmer at Burham, and j*unu, ^ JElyiyi'ge cik>, *^ Gabmep a^rBupham, *3 Godwiae Wulfftanes fonne, and Charles the kings . Eobpme puljrj-tanej- j*unu, *} Kap faej-cmc^ej" J Minifter; e knight, & when men that maiden fetchd to Bright- cnihr, ^ J?a man J maeban jcerre ser Byphr- ffwfurcty. ling, then went of all this f in pledge ^Elfgar lin^an, ]?a eobe J?yj- ej- eallej- on boph /Blpgap Syredes fonne, and Frerth prieft of Folcftone & Sypebe^ j*unu, ^ Fpeptrh ppeoj-t: on polcej"t:ane *} eif Dover Leofwine prieft, and Wulfsy prieft, & opDo^epanLeoppine ppeoj-r, *3 pul^j*i^;eppeoj^r, "\ Eadred Eadelmes fonne, and Leofwine Wasrelmes Gabpssb Gabelmej- j*unu, ^ Leoj:pme Jtepelmej- fonne, and Cenwold ruft, and Leofwine God wines funu, ^ Cenpolb puftr, "3 Leojqnne Eobpinej- fonne at Horton, and Leofwine the red, and j-unu aer Jboprune, ^ Leoppine j-e peabe, *] Godwine Eadgifes fonne, and Leofsun his brother. Eobpine Gab^eope j*unu, *^ Leo^punuhij*bpo : Sep: * fcize. And which foever of them longed liveth s take all *3 fpa hpse^ep heopa Ixn^ libbe po ro eallen f inheritances. h poflieflions afwcll that land that I to them give as seran ^eon ^amlanbe ))e ic heom ^a^eo 1 of each, m every thing. This thing is knowne to all k valiant men in Kent, and in Suflex of Thanes and of man on Kasnr, -j on Suf j-exan on 'Se^enan *3 on Churles APPENDIX. 197 Churles, and this writing is l three-fold, one is ' tripartite. ccoplan, "j fyjya gepjiita pynb ftpeo, an if at Chrift- church, m another at S. Auguftine, the * a fecond. ser cnip rep cypcan, o'fceji . asr 8. Auguj-trine, f third hath Byrhtric himfelf. haefro 1 Byphrpic Teftamentum Etheljlani Etheling, flit regls Etlel- rediy quo (inter alia] contulit Ecclefia Chrifti Cantuaria , manerium de Holingburne y anno Chrijli i 01 j. In God Almighties name I Ethelftan Prince OnDo&ej-Almigriej- name ic Gj> elj*ran 6J?elin^; make knowne in this writing how I my iubflance ej*poreli on J^ij-en epjiire hu ic mm ajie & my poflefllons given have for Gods n love & glory, *J min e^re ^epunnen habbe Dobe roloue*3 my foules redemption, and my father Ethel- minne raule ro alyrebnerre "l miner jra&en 6bel- i- L ; {- r JL c. n. oherinrf. redes king that I it of earned, that is nrft pf at liberty, jie&ej- Km^ej^ fe ic hir er ^eepnobe, J?eTifa;perr that I confent that man P fet free every forfeited fer ic gan fe man ^e):pey echne pire 9 furety r that I by f promife 'ought. And I give in vej^reinan ]?e ic on j-peche o^hre. Anb ic ^an in with me where I me reft to Chrift and S. Peter c poljrnihr made, & that gilt pouch, & that bracelet which ypoyce, "J J?ane ^elben verelej*, *] fane beh fe Woifrihc made, and that drink-horne that I ere polj:nihc ppogre, *] fane bnench honn ]?e ic ep of that Covent bought at Ealdminfter. And I ar fan inbe bo^re on Galbmenj-rpe. Anbic will that men take that money which Athelwolds pille ]j er man nime fer pye fe Arhelpolbej* * yeiid. widow me ought to z pay which I for her ere hf me oT ro ^elbenne ]?e ic pop hipe ep paid have, anddifpofeit JElfsy bifhop to ^ey horen habbe, "j birefe Glj^ige bifcope mro Eaidminfter for my foule, that is twelve Galbemenj-rpe vop mmpe j-oule, f er f ynb rpelf nixnbrd. pounds a by tale. And I give to Chrift - church punb by rale. Anb ic an mro cj-ifref chepiche in Canterbury thofe lands at Holingbourne and on Canrpapebepi f ej* lonbef aer ^olmgbupne ^ thofe APPENDIX. 199 thofe which thereto appertainc, except that one Jaj* )>e Jjsepto lihr, buren j)aj- ane plough-land that I to Siferth given have. And j-polinge ]>e ic Sipep) geunnen habbe. Anb thofe lands at Garwaldintune , and I give thofe faj* lonbef set Eappalbmrune, ^ ic an ]?aj~ lands at Ritherfelde to the nuns minder of Saint lanbej* set Rifeppelbe mro nunnen meneftpe fey nre Mary b gratis, and one filver great piece of five CDapie J?ankej% *] enne felupene micle ojc vijc pounds, & to New-minfter one filver bafin punben, ^ mro Niepemenej-rpe enne felujiene hpep of five pounds in that holy Trinities name that op vi): punben on fajie hal^e ]?pinnej*j-e namen J?e the place is dedicated to. And I give to Shaftes- j*ye j-rope ij* ponholi. Anb ic^an troSejrcej-- bury to that holy c rood and to Saint Edward e Crucifix, bepy t:o f ape hal^e pobe *J ro j-eynre Gbpapb thofe vi. pounds which I to Edmund my brother fape vi. punbe J?e ic Gbmunb mine bpo'Sep ^committed have. And I give to my father Ethel- "made known. epijyeb habbe. Anb ic an mine vabep ]:el- red King thofe lands at Cealtune e except thofe faring. peb Kme fa]- lonbej* ar Cealrune butren J>an eight hides which I to Aelmer my Minifter e^ren hiben fe ic Aelmepe mine Kni^re given have. And thofe lands at Northtone, & ^eunnen habbe. Anb Jaj- lonbej- ar Noprune, *} thofe lands at Mulinton, and thofe filver hiked f aj- lonbej- ar CDulmrune, ^ ]?aj- j-elupe hilrene fwords which Wlky tel pofTeffeth, & that brigand ine j-pepbej* fe plkyrel ahte ^ fape bpenea that with Morkere is, and thofe horfes thatThur- f e nub CDopkepe ij-, 'j ]?aj* hopj-ej- J>e )?up- Dd 2 brand 200 APPENDIX. brand me gave, and thofe white horfes which Lief- bpanbme gaj:, *] ]?aj- hpirenhonj-ej* J?e Liep wine me gave. And I give to Eadmund my bro- pyne me ap Anb ic an Gabmunbe mine bno- ther thofe fwords which Offa King enjoyed. And 'Seji faj- fpenbej* ]?e OjipKing ogt;e. Anb thofe fwords with the hollow hilt, & one jave- J>aj* j-pejibej- mib Jam petteb hilre, *j onej- bpon- * tipped. iin, and one filver f hemmed war- trumpet, & that bej% *3 ane j-elueja hemmeb bleb honn, ^ f ajie land which I poflefle in Eaftangle. And thofe lands lanb ]?e ic a^re on 6f tangle. Anb ])aj^ lonbej- at Peakefdale. And I will that men deliver every a^ Peacej^bale. Anb ic pille ]> er man elej~re eche visual. yeareonedayessferme to the covent at Ely of this ^eneane bey pjime fan hipebemroEJyopjnj-e land on S. Etheldriths mafle-day and give likewifs ajie on 8. GJelbpi'Se mej-f e-bey ^ ^epelle "Seji to the minfter one hundred pence, and feed there to menj-rne an hunbpeb pane^e^. ^ ej:efce feji i 1 needy. on that day an hundred h poore. Be ever this on J>anne bey an hunb Jeajipne. j^y eune y Y i.e. almes delivered yearly, ow the land he that s elmej-j-e ^elejfr ^ejipamliche, o^je lanb f e Ipe k oweth, whileft Chriitendom ftandeth. And if he o^e ]:e hpile cjiifrenbom j^tonber . Anb ^ej: ]io will not that almes performe who that land hath 3 nella]) f e elmej-j-e ^epop)i ])e ]?er lanb habbe]> go that land to S. Etheidrith. And I give an j-e ane mro 8. 6]?elbpi)e. Anb ic ^an toEadrith my brother one filver hiked fwordi Gabpyje mme bjie'Seji anej- filuep hilrej* j-pojib. And I give to Elfsy bifhop one gilt ^croflfe which Anb ic jan Gljcj-ije bij^coppe ane gih; pobe fe is APPENDIX, 201 is with Eadrith Syfleds fon, and one black ij* nub Gabpife Syjdebej- jnnu, ^ enne blacne ftede. And I give to Elmer thofe lands at Hamel- j*rebe. Anb ic gan Glmepe faf lonbej- ar Darnel- den which he m ere had. And I pray my father m fometim ben J?e he ep a^re. Anb ic bibbe mine vabep for God Almighties love and for mine that he vop Eobef Alrmgrief luve *] vop minen J?er he that n give which I to him given have. And I ! confine; J>aj* geunnen J>e ic him geunnen habbe. Anbic give to Godwine Wlnothes fonne thofe lands at Cu- ^an Eo'opme pulnofep j-unu faj- lonbej* ar Cu- nitune which his father ere pofTeffed. And I give : mrune J)e hij- j:abep ep a^re. Anb ic ^an to Elffith my P fofter - mother .for her great ' nurfe, Gl^ife mmpe poj*rep-mobep pop hipe muchele deferving thofe lands at Weftune which I bought of eapnune j?aj^ lonbej* ar pej* rune ]>e ic bo^re at; my father ^ with three hundred marks lacking a half ! fi mine vabep mib J>pibbe halpe hunb mancuj*en of gold by weight. And I give toElfwine my golbej- be ^epi^re. Anb ic gan Glppine mine mafle - prieft thofe lands at Horelveftune & thofe mej-j-e-ppeofr J?aj- lonbej* ar ^opelue^rune ^ faj" fwords which Wyther enjoyed* And my horfe j*pepbej* fe pyfep a^re. Anb minej* hopj*ej* with my furniture. Anid I give to- Eylmere my mib mine jepobe. Anb ic ^an Gylmepe mine "difhe thane thofe eight hides at Cateringetune, & [ sever, bif he Jeyne fape e jre hibe ar Carepin^erune, ^ one diverfe- coloured ftede & thofe lharp f fwords r Forte, ane vo^ne j*rebe ^ ]jaj- j-hiapbebe j^popbej- la(h - & my target. And I give to Syferth thofe Jaads 3 mine rap^e. Anb ic j;an 5y):ep]5 ^aj- lonbej* at 202 A P P E N D I X. fromi J fometlme. at High-cliffe and one fword and one horfe & ar oenclyue *j anef f popbef ^ anef hopf ef "J my bowed fhield. And I give to Ethelferth mine bogebe f celbef . Anb ic an Gfeljzepfe Stameren and Lyving thofe lands at Tywynge. Sramepen *] Lyvyn^e faj- lonbef ar Typyn^e. And I give toLiefftane Liefwines brother what of Anb ic gan Lief f rane Lieppmef bpo^ep quarref that land-eftate which I l of his brother took. And J?ape lanb-ape ^e ic op hif bpe^ep nam. Anb I give toLyemare at Bygrove thofe lands which I ic gan Lyemape ar By^poue Jaj- lonbej* ^)e ic him u ere from took. And I give to Godwine nam. Anb ic gan Eobpine three hides of land at Little Gare- l^piape hibe ar Lirrle Eape- give to Edrith Wynfelds fonne that an Gbpij? pymcelbe funu ]?af is marked fword x which the hand is on marked. And I with a hand, j-popbef ])& y i hanb if an ^emapceb. Anb ic give to Elfwine my minifter that fword which he gan Glfpine mine cm^re ]?af f popbef Je he tomeyfometime gave. And I givetoElfnoth my me ep f y albe. Anb ic an Glf no^e mine fword white, & to my Huntfman that ftede which fpopbehpiren, *] mine Diephunre ]?af f robef fe is at Colingeregge. And tender men of my gold if arColmgepe^ge. Anb healbe men op mine olb to Elurith at Berton & to Godwine Drevelen fo Glupi^e ar Beprune *]) Eobpine Dpeuelen f po much as Eadmund my brother knowes that I michel f po Gabmunb my bpo'Sep por )ar ic to them of right to yeild ought. Now thank I heom mib pihre ^elbea oje. Nu fonky ic i my him ejie op Drevelen thofe Dpeuelen fape fhale. And I j-hale. Anb ic i fomctime fold. APPENDIX. 203 my father with all humility in God Almigh- miiie vaben mib aljie ebmobnej- fe on Eobe Almi- ties name for that anfwer which (he) to me fent riej- name fajie anj-pene J>e me j*enbe on Friday after midfummers mafTe-day by Elf- on pnibey apceji mibfumenej- mejye-bage by Elp gare Elfftanes fon, which was that he to me fignified aneeij:j*ranejTinc, fet paj- ]?er he me ktbbe by z my fathers meffage that I might by Gods a mmej- pben popbe "f ic moj*r by Eobej* permillion and by his give my lands and my ^eliaue *j by hij* unnen mine ajie ^ mm a poflfeflions as to me moft expedeient feemed, b ei- e <5 re rP me ?&}" J 16 ^ J>uXt:e, ai- ther for God and for the world. And of this an- bep fop Dobe *] jroji ponble. Anb ]?if j^ej- anb- fwer is to witnefle Eadmund my brother and j*peja ij* foji ^epirnej* j*e 6abmunb my bjio'Sen ^ Elfsy biihop, and Byrhtmer Abbat and Eilmer Glj:pe bij-cope, ^ By nhrmep Abot: *]| 6ilmep Eluriches fonne. Now pray I all the wife men Glupichef pine. Nu bibbeicalle ]?e j*yren which my c will (hall hear read either d Clergie fe mine quybe ^ehipe'S nebe ey^eji gehobebe d clerks. & e Laity, that they be of afllftance that my f will e Laics. *3 lepebe, )er hi ben on vulrume ]?er my cpybe f tcftament - ftand may, fith my father giveth leave for fzronben more p]?e minej* vabeji jelianu on my s wills (landing. Now declare I that all thofe mine quybe j*renr. Nu kyj?e ic f er alle J?o things which I to God unto Gods church and )?m ]>e ic to Eobe inro Eobej- cenechen *] Gods fervants given have be don for my Eobej- J?euen jeunnen habbe jy jebon YOJI mine]* deer 204 APPENDIX" deer fathers foule Ethelred King and for mine & lieuej* pbeji pule 6J?elnet> Kyngej* *j pop. mrne *} Elfrith my grand-mother that me fedd, and for 6Ijcptf5e mine ealbe-mo'o' eji }>e me vebbe, ^ jroji cftatcs; a ii theirs that me to this h goods helped. And he alpe ]?arie f e me ro j)ij-e joben geplj*ren. Anb j-e tcfiament. that this will through any thing breaketh let }?e J>ij*ne quybe jnm eny ])in^ apenbe habbe him give an accompt thereof to God Almighty, and him pi]) Cot) Almi^ri emene, ^ to Saint Mary, and to Saint Peter, and to all pi]? j-eynre CDapie, "3 pi]? j-eynre Perep, *] pi)alle thofe which Gods name do laud. J>o ]?e Eobej* name he pie]?. Charta Libertatum Ecclcfiae Chrifti Cantuar. conceflar. per Regem Henricum primum. 19: H. Dei gratia Rex Anglorum, iij. Comttibus, Proceribus, l^icecomitibus^ c#te- rifque fuis fidelibus Francis &f Anglis in omni~ bus Comitatibm in quibus Archiepifcopus Ra- dulftis S? monachi ecclefiocne on ^tranue & 5>treante, on CHllotie & Jfeitie, APPENDIX. 20$ fame, Sf jrojeftealies, & genes tinofces, 6f JFiemen feo?mti)e fuper fuos homines infra burgos & extra in tantum f ta#z plemter ficut proprii miniftri met exquirere debent. Et etiam fuper tot Thegenes quot eis conceffit pater meus. Et Thegen; nolo ut aliquis hommum fe intromtttat nifi ipft 6f miniftri eorum^ quibus ipfe committere voluerint, nee Francus nee Anglus : propterea quia ego concejji Chrifto has confaetudmes pro redemptione antmte meon on 6bpapt>ejf Kinjej* fcaege mine]* msejej*. ] on pillelmej- Kyngejr tjse^e minej- }:se&ep. "j j-aca. *^ j*ociise. on j-rpan&e ^J on j*rpeame. on pufcan. *j on ):etean. tolnej* ^ t:eamej*. ^jii^bpecej* *] hamj*ocne. E e sod APPENDIX^ inpuigenej- fiouej". *] jrlaemen j:eopnT5e oj:eji hipe agen mxn bmnan bujijan *] buran. j- pa pull *j f pa pojij? j*pa imne agene picnepej* hirj* ecan j-col&an, This an- -} oueji j-pa jzela 'Sejenaj- []-pa ic heom ro ^eleren LaSne^ ^ e ^ C 3 T 1C ne ^ C $ 2Eni S man 2ED1 S ^ m 6 J^P On that, g ' tyoburon hi. ^ heojie picnsepej^ fe hi hir ber- f eop gehealfce. Charta confimilium libertatum Ecclefiae S. Au- guftim Cantuar. conceflarum per S. Ed- wardum Regem. v7dl ptura A ' ^ J & ^dwardus Dei gratia Rex Anglorum, Eadfino Archiepifcopo^ & Godwino Comit/, & omnibus fun Barombus Cancix, Salutem. Sciatts me dechfTe Deo Sf S. Auguftino 6f *.\./ C-^ fratrtbus uthabeant eorum $)ftC^l Sf ^OCtlft, & pads frafturam , & pugnam in domo fa&am, feP f vi*e affaltus, & lat rones m terra fua captos, latronumque fufceptionem velpaf- iionem^ fuper illorum propnos homines infra Civitatern & extra, theloniumque futim in terra @* in aqua, atque confuetudinern qu# AJlodiarii. dlCltUT / %t&ttlt$+ Et fupY OHMCS Allodi- ^ arios APPENDIX. 207 arios fuos quos eis habeo dates. Nee volo confentire ut aliquis m aliqua re de his fe in- tromiuut, nifi eorum pr 1046. Here appeareth in this [writing how Wolgith Scriptura t*. yep fporeler on pij-en ^eppire hu polgip Vldepagt8y * gives her fubftance after her departure, which an hipe 'Sing ejcrep hipe vopppe, pe to her the Almighty God gave in life to ufe, hipe ]-e Almi^ri Eoft upe on hue ro bpucene, that is then firft to my Lord his right He- J> er if )?anne epej-r mine Lhouenbe hij* pi^e ^De- riot. And I give that land at Stiftede a by Gods ! with: pier. Ant) ic gan per lanfe ar Stiftebe a Eobej- b witneffe & my friends to Chrift- church to h teftimony, ^epirnefj-e *J mine vpen&en mro Chpij-re^-chepeche the Monks for c fuftenance, on this condition that i. e. ad ric- J?a CPunecen ro voj-r ne, on panne epebe per tum * Elfkitel and Kytel my children ufe thofe lands 61j:kiael ^ Kyrel mine beanne bpuce paf lonbef for their d dayes, and afterward go that land to tiro tin*: hype fce^-, *3 j*ippen ^an^ par lanb mro Chrift-church without any dedudion for my Cpij*rej--chepech buren ecchepeapenralevopmine foule, and for Elfwines my Lords, and for all y aule, *3 vop Gljqnnej* mmeLhouep&ef, ^ uop alpe my children & be halfe the men free after their mine biepne *J by hialue pe men vpye ep:ep hipe < dayes. And I give to the church at Stiftede dcatb. ba^e. Ant> ic ^an mro pape chepeche ar Snj*refce f befides that which 1 in life gave Eldemefland & 'together with tro pan pe ic on hue gupe 61t>emej-lan& *] that thereto 212 P P E N D I X. * withali. g thereto Hyeken, that there be in all fifty acres ]?epro >yeken, J>er J?ep j-y allej- vijcry ekepej* ? champion, in h field after my departure. And I give to Wolk on veto eprep rmpe vojipfe. Anb ic Jan ro polk & Kytel my fonnes that land at Walfingham, & *J Kyrelmmenpmej- ]?er lanb ar palpngeham, *} at Charlton, & Herlingham. And I give to my ar Kaplrune, *] Jfreplin^ham. Anb ic an mmen two daughters Code and Botc Sexlingham and rpam bo^repen Eobe *j Bore Sexlin^eham "J Summerledeton, and to the church at Sumerl. Sumejilebenme, ^ inro ]?ajie chepeche ar Sumejil. fixteene acres of land, and one acre of medow. pxtene ekejij* lonbej% *J enne ekep meb. And I give to Ealgyth my daughter that land at Anb ic gan Galyj>e mine bo^reji fer lanb ar Cherteker and at Afhford, and the wood which Chejrrekpe *] ar GJ- j*erej*j:opb, ^ Jane pobe ]?e I laid thereto. And I give to Godwine Earle and ic leybe J?epro. Anb ic ^;an Eobpine Eople *J Harald Earle Frithton. And I give to Chrift- JlDapaib Gople Fpifrune. Anb ic gan inro Chpij-rej-- church to Chrifts altar one little gilt chepeche ro Cpij^rej* peueb ane lirlene ^eibene * Crucifix. * croffe and one carpet, and I give to S. Edmund pobe *] ane j-erpagel, ^ ic ^an 6. Gbmunb two boned homes. And I give to S. Ethel- rpe^en ^eboneb hopnej* .. Anb ic ^an 6. 6J>le- drith one wollen kyrtel. And I give to S. Ofyth bpi]?e ane pllene kyprel. Anb ic^an 8. Oj-y]?e halfe a pound of money. And I give to S Auftine half: punb peep Anb ic gan 6.Auj*rme k wi!i. one carpet. And he that my ^teftament be- ane j-erpa^el. Anb j-e J?e mine qtiyde be- reavcth APPENDIX. 213 reaveth which I now ^rdeined have m by Gods f bequeathed. nyaui J?e ic nu beque'o'en habbe a Irobef m Wltb * n teftimony, bereaued let him be of thefe earthly witndfc;. epirnejye, bejiyaueb he ponfe fifej* ejVSlicej- joyes, and cut off him the Almighty Lord mengjjej", *] aj-hipei hine j-e Almigri Dnijpceii which all creatures created and made from all j?e alle j-heppe gej-hop 'J ^eppo^re v nam aljie holy mens communion P in Domefday, and be he Saints, hale^ene ^ernennej-j-e on Bomej^bay, *] j*y he P at * delivered to Satan the Devill and all his curfed betragre SaraneJaneDiej:le *j alle hij* apan^ebe companions into hell bottome, and there 1 perilh q ^ tortured, ^ejrenen mro helle ^nunbe, "3 fen acquelm with Gods 'deniers r without interminlon, and mine f reprobate*. mibEobe r pi> r acen bute e r pyke, T mine heires never to trouble C Of this is for wit- le/iing injrenumen neueji ne aj-uenche. Dij^j*ej* ij* ro Jen- ***'" nefle Edward King and many others, pitnejye Gbpano Km^ 3 mame ojpe. Donatio terrarum apud Apoldre, Orpinton, Palftre, Werhorne y Wittrtfham, eccle/itf Chrifti Cantuaritf per M,dfium Presbyte- rum, de confenfu Cnuti Regis ann. 1032. Here appeareth r in this writing how Cnute King scnptura a 5: -Deji j-purelaj) on fyj-an ^eppire hu Cnur cyn vrfepag.i*o. and Alfgife his Lady gave to Eadfy thek * u peo hlaejrbi^e ^eu]?an Gabj-ije heojia F f Prieft 214 APPENDIX^ Prieft when he turned monk that he might prieofc "Sa he ecypbe to munece j? he mofte t difpofc. f convey that land at Apuldore as to himfelfe moft ateon J lanb ser Apolbjie j* pa him j-ylpn leo- pleafing were. Then gave he it to Chrift- pj-r paejie. J)a j-ealbe he hit mro Cjiij^rej*- church to Gods fervants for his foule, and he it cyjiican J Eobef ^eopum pop hif j~aple, "} he hir bought that of the Covent for his dayes and &d- ^ebohre J ser fam ipebe hij" bae^ *] ^Eb- ; condition- m wines with fower pounds, on that l contrad that pinej* mib peopep punban, on "f pojipypb J men deliver every year to Chrift-church three manelvj-re aelce ^eajie mro Cpij-tej--cipican .111. * eados. weighs of cheefe from that land, and three u bun- pasga cy^ej- op }am lanbe, "j ]?peo ^e* dies of Eeles, & after his dayes & ^dwines go bmb selcy *] aepreji hij* be^ *] ^bpine^ ^an^e that land into Chrift-church, with meat & witn J lanbe into Cjiif re]^-cipican, mib mete ^ mib * i.e. entirely. * men even as it then y inriched is, for Eadfies improved. mannan ea i ^p a j^j^ J^mie S e 5 obofc) TY' popabp^ej- foule, & he bought that land at Werhorne of th j^aple, ^ he ebohre J lanbatpejihopnanserfam Covent for his dayes and Eadwines alfo with fower ftrpebe hij~ bage *] Gabpinej- eac mib jreopep pounds, then goeth that land forth with the o- punban, 'Ssenne ^a]) J lanb j:ojf8 mib Jam o- ther after his dayes and Edwines to Chrift- fpan a:pt:eji hij^ base *] Gbpinej* mro Cjiiprej^- > ftock. church with the z crop that there then on is, and cijiican mib ^xjie nl]?e Je -fap J?aenne onp, "J that land for his dayes at Berwick which he obtein- lanb on hij* bsej net Bejipican ^e he geeaji- ed Ap P E N D I X. 215 ed of his Lord Cnute king, and he gives alfo nobe set; hip hlapopb Cnute cynge, ^ he geunn eac thofe lands at Orpington in his dayes for J?sep lanbep set Oppebm^une on hip bsege pop his foule to Chrift- church to Gods fer- hip paple into Cpiptep-cypican ^am Eobep ^eo- vants for a garment land, which he bought with clothing, pum to pcpub lanb, ^e he ebohte mib scrud-iand. eighty marks of white filver by Huttings Huttings hunb eahtigan mapcan hjiirej* j*eol):jiej* beuj-t;mej- weight, and he gives alfo thofe lands at Palftre & weight, ^epihre, ^ he eun eac ^aej* lanbej* set; Palf rpe ^ at Wittrelham after his dayes and Edwines set pihtrjiicej-hamrne asp^eji hij* bse^e ^ Gbpinep forth with the other to Gods fervants for fof- Fofter-iand. jzoji^ mib "Sam o)jium ^am Eobej* "Seopum ro JTOJ-- ter-land for his foule. This bequeft he giveth troji-lanbe pop hij- f aple. Dip ej* cpibej- he eunn to the Covent on this b contrad: that they ever him * condition. "8am ftipebe to Jam poppypban "f hi aeppe hine well obferve, and to him faithfull be in life and af- pell healban, *j him holbe beon on lipe "-j ap- ter life, and if they c with any unadvifednefle * b/: trep lipe, *j ^ip hi mib senegan unpebe with him this d contrad fhall breake, then (lands ' condition. pr<5 hme^aj* poppy pb ro bpeqan, J?aenne pranbe it in his owne power how he afterwards his hir on hip a^enan ^epealbe hu he pij>]?an hip owne difpofe will. Of this is for witnefle Cnute aen atreon pille. Dipep ip ro ftepirneppe Cnur King, and ^Elfgife his Lady, & jEthelnoth Archb. cyn, ^ ^Ip^ipupeohlasbi^e,^ ^^elno'S Apceb. & Alfftan Abb. and the Covent at S. Auftines, and 3 ^Elppran Abb. ^ pe t>ipeb aer 6. Au^uprme, ^ Ffa Bjihtric 216 Brihtric young and ^Etheric husbandman, and Bpihrriic geounga "} -flij?eljiic bi^enga Thorth Thurkilles nephew, and Tofi, and JJOJT0 1 funkiller* nep, *} Top, ^ prieft, and E ad wold prieft, and all the Kings pjieoj-r *{ Gabpolo pjieoj*r, *] ealle 'Sxy cyn^e^ ; tripartite. Counfellours, and this writing is c threefold, one paebej" men, *J fij-j-a^epjiiraj-ynfea .111. an is at Chrift-church, and one at S. Auguftines, & ij* aer Cpif t:ej--cyjiican, ^j an setS.Aujuj-tme, *] r to; one hath Eadfy f with himfelfe. an hserS Ga&-ie mib IH AV E perufed this learned Treatife of GAVELKYND, and judge it very to be Publifhed. April 7. 1647. Ja. Jrmachanus. TABLE, or INDEX, OF THE HTE, what, Page 84 Agium, in the termination of words what Akerland, what, 117 Allodiarii, 125 Allodium, the fame with Boc- land, 88, no. the 'word derived, i of . more properly in England fince the Con- quefl, 12.6. proper onely to the King to grant, I z6 Almefland, what, no Affife of Mortdancefler, where it lietb, ifz, 15*7 Aver- bred, what, if Aver-land, ivbat, no* Avermannus, 116 B. Bed-rip, what, 17 Bene-bred, ivbat 9 17 Beneficium, of fame Jignifi- cation anciently, that Feu- dum of latter times ^ 102 Benerth, what, 18 Ben-rip, what, 17 Bere-gafol, 'what, 2.9 Ber-land, iubat, 118 Bermannus, what, 118 Bians, what, iS Black-maile, what, 94 Black-rents, what, 34 Blank-ferme, what, 34 Bocland, what, 84. whence fo called, 112. how vari- oujly denominated, in whether anciently devifea- ble, 8p. whether otherwife alienable A TABLE, or INDEX, alienable, 87, $%. the fame ^ith Allodium, 88, no reteined after the Conqueft, 120 Bordarii, up Bord-land, what 115*, up Bordmanni, nS Burgh-yard, what, 22, 189 Bydel, what, and whence de~ rived, 20 C. Mr. Cambdens derivation of Gavelkynd, 5 Carropera, 2f Carucx procarias what, 18 rogatae, ip Carucage, what, 133 Charters, diverfe of thofe in Ingulphus queftioned, and how far, and why, I o I Chivalry and Socage, two te- nures comprehending all the lands in Kent, and elfwhere in England, i2p Cniht, in the Saxon language, what, 7 Coke, .SVrEdward, his deri- vation of Gavelkynd, proceedings after his victory neer Haftings, 69. his Charter of Reflitution of Church-lands, 68 Conqueft, the times about it very rapacious. 6j Contract of marriage, a Sax- on/cm or model of it 7f ,76" Coredy, what, ip, 20 Corne-gavel, what, 16 Corporations, anciently en- feoffed with lands in Ga- velkind, 8 Cotarii, what, 116. their te- nements changed into Ga- velkind, fp Gotland, what, 116 Cotmani, what, ibid. Cuftome hardly left, f . be" ginning within memory no Cuftom, ibid, of Gavel- kynd, a common taw in Kent, 44 its ejftntial pro- perty, 4p how different from Tenure, 1 44 Cyricena-Socne, what, 15 j D. De rationabili parte bono- rum,the JVritfo called whe- ther lying at the Common Law, or by Cuftom? 7 8, pi Dome, in the termination of words, what Jignify ing, 1 06 Dover-caftk the Lock and key of all England, 70 Drenches, what, 124 Drincelean, what, 2p Drof-dens, what, 117 Drof-land, what, 117 Drof-mannus, what, ibid. Dun-land, what, 117 E. Error, if fetled, difficult to remove, 6i.oftencaufedfor want of altercation, ibid. Eftates, in England univer- fally partible before the Con- queft, and how, 77, 78 Ex of the Principal Contents. Ex gravi querela, the Writ fo called^ where it lies, I f 3, F. ifp Fald-Socne, what, 134 Fald-worth, what, ibid. Fee, not alienable without the Lords confent, 8. whether anciently devifeable , 84, naturally not devifeable, and why, 16*2, Fees, whether any in Eng- land before the Conqueft, 103, in. become patrimo- nial in many places, 162. what in their original, 108. how changed afterwards, ibid. Females, capable of fuccejjion in Gavelkynd-/#^ ; 7. ex- cluded from fuccejjion with Males, 8 Feudaftra, what, fj Feudum, novum, 6c anti- quum, 40 Feudum, the word how an- cient, 101, 1 02. derived, 104 Fewd ( in deadly fewd ) whence derived, 107 Fief de Hauber t, and de Ro - turier, 36 Filctale, what, 30 Fildale, what, ibid. Fines for the enfranchifing of lands, j-p Fird-focne, what, 174 Fodrum, what, 2f Folcland, the nature of it, 78 See alfo 114, 117. Folgarii, what, iif Foot-average, what 116 Forgable, what, 30 Forland, what, up Forfohoke 3 r Fofter-land, what, up Francus bancus fi, 178 Frankalmoigne, 40, 142 Frank-fee y Freehold, whether anciently devifeable, 84 Frith-focne, what 133 v G. Gabella, what 13 Gablum, what, 13. terrarn ponere ad Gablum, what, Gabulum denariorum z6 Gafel, gafol, gaful, gavel, what Jignifying 10 Gafolgylda 3 3 Gafol-hwitel z6 Gaigneurs, what Zf Gavel abfurdly rendred gife- eal in many compounds, 10 Gevelate, what 31 Gavel-bred, what zf Gavcl-bord, what zz Gavel-corne, what 16 Gavel- dung, what zi Gavel-erth, what 17 Gavelet what 3 1 Gavel- fotherj what zf Gavelikendeys 33 Gavelkynd, the words vulgar derivation propofed, z. fcanned, 6. rejected, ibid. a new etymon propofed and averted, 10. the Cuftome fo called a Common Law in Kent, A TABLE, or INDEX, Kent, 44. not caufaf of Partition in land fo called) 44. what it comprehends) 48. the tenure fo called al- moft univerfal in Kent, 44. whether eo nomine obteining in Wales, fj. whether a Tenure or a Cuf- tome 100. Prefcription in it not good 9 and why, 44 whether Socage and it Sy- wonimieS) ff. Grants of land in Gavelkynd, 38. when ceajing) fi. See more in Partition, Villains. Gavclkynd-70/fc/, females ca- pable of it, 7. the nature of it) in point of 'partition, /canned) 42. no prefcrip- tion good there) and why) 46. liable to WorkS) f/. whether devifeable in Kent before the Stat. of IVillS) if i. defcendible to colla- teral kinred, 7. anciently conveyed to Gilds and Cor- porations) 8 . alienable from the proper heir) 9. all par- tible land not called Gavel- kynd, Gavelman Gavel- med, what Gavel-noht, what Zf Gavel-ote, what zi Gavel-refter, what zz Gavel- rip, what ip Gavel-rod, what zz Gavel-fefter, what 24 Gavel-fwine, what z$ IO 35 20 Gavel-timber, what zz. Gavel-werk, what 24 Gavel- wood, what 25 Ge, how ufed with the Sax- ons, 3 5 Gecynde, mif-conflrued by Mr. Lambard. 37 Geneat, what 14 Gerfuma, what fp Grants of land in Gavelkynd, when ceajing f i H. Hade, head, hode, hood, &c . in the termination of words what Jignify ing 106" Hereditaments, what 85 Hamfocne, what 134 Hereflit, what) and whence derived) "3 2. Hide land, what 117 Hlaford-focne, what 134 Horfe-average, what 116 Hotchpot pi Hunig- gavel, what 28 I. In-average, what 117 Ingulfus Charters) many of them queftioned) and how far) and why 101 Inheritance, the word how ac- cepted in England, 8 3, 84 Inheritances, in England uni- verfally partible before the Conqueft) and how) 77, 78 Inland, what 114, up K. Kent, with other Counties conquered and over-run by Will. i. of the Principal Contents. Will. I. 66. Servi there, 74. alfo Nativi, 7f Kind, in Dutch, what, and whence derived 6, 7 Knecht in Dutch, what 7 Knight - fervice - land natu- rally incapable of partition 48 Klyghren-gyld 137- Knights, whether any here in England before the Con- queft 113 Kynd, in Gavclkynd of what Jignification 37 LJ. Mr. Lambard his two-fold derivation of Gavelkynd, 3. whereof one rejected, the other admitted, f . mi- jlaken in the conftruftion 0/gecynde 37 Land, all in Kent and tho- rowout England, either of Chivalry, or Socage Te- nures, 38. all in England, either ancient Demefne, or Frank fee, f 7. andfub- jett to Tenure, \ 2.6. defcend- ed, not alienable of old without the heirs confent, 39. fur chafed, alienable at pleafure , ibid, cen- fual, not cenfuat, 3f. bow jnany federal kinds of land before the Conqueft, 1 14. as alfo fince I if Landagendman, what if Land-boc, what \ n Land-gabel, what if Land-gafol, what Leaf-gavel, what Lef-filver, what Lef-gavel, what ibid. 17 ibid. ibid. ibid. Liberum feodum, what f6 Lyef-geld, what 27 M. Mailer, what 34 Mailman, what ibid. Mail-payer, what ibid. Mala, what ibid. Malt-gavel, what 2,7 Malt-peny, what ibid'. Malt-fliot, what ibid. Manopera, what 24 Mete-gavel, what 31 Mirroir, the book fo called, cen fared 104 Molland, what 1 18 Molmannus, what ibid. Monday-land, what 120 Mortdancefter, the djjife fo called, where it lies, i f z, 'f7 Mortmaine, what, 40. the tenure of it double ibid. N. Names, to be futable with things very convenient, I Nativi in Kent 7f Neatland, what 1 14 Nidering, alias Nithing, a, nickname of what Jignifica- tion, and whence derived, G g Oale A TA B L fe, or I N D EX, o. Oale-gavel, what 24 Ordericus Vitalis , his rela- tion of the Conquerors pro- ceedings and progrejje after his viftory neer Hutting", * 7 1 . Ordinary, his power of dr ftributing Inteftates goods here in England, when be- ginning, as Aljo in Scotland, and Normandy 79 Over-land, 'what no Out-average, what 1 1.7 P. Parceners, how many forts^ 41 Paroc, what z$ Partition,*;* Gavelkynd-/^^, neither from the name, nor nature of it onely, 44. nor from prefcription^ 46. but partly from the nature of it, and partly from cuflom, and what, 47. the antiquity of it) 6 1 . whether inherent in the land) 147, I f o. why more general in Kent than el/where, fi, 61. whe- ther brought hither by Odo cut of Normandy, <5i, 81. whether continued there by compofttion with the Con- quer our 6 1 Partition, but one property or branch of Gavelkynd, 48, 146. out of Kent whence vbteining ibid. & 5-4 Partition of goods jp Peny-gavel, what z6 Some Phrafes in Ingulphus ancient Charters queftioned 101 Pi&avenfis his relation of the Conquerors proceedings and progrejfe after his vitlory neer Haftings, 6p. himfelf the Conquerours Chaplain^ and an eye-wit nejffe ibid. Portfoca, what i^, 136 Portfoken, what i$f Potura, what zp Prefcription not good in Ga- velkynd, and why 44 R. Rationabili parte bonorum; 78, 6? pi Redditus, albi, what, 34. ni- gri, what) ibid. Reltitution, a Charter of it by the Conquer our 68 Rip-filver, what 19, Rochefter-Crf/?/? befieged by wni. ii. : <* 4 Rod- land, what 117 Romney , the Conquerours paffage by it in his march to Dover 6p S. Contratt of marriage in Sax- on, 7f. the edition of it corrected) 76. Several wills in Saxon 8f Scip, fhip, //; the termination of ivordS) what fignifying, 1 06 Scotale, of the Principal Contents. Scotale,. what z$ Scrude-land, what up Seifin, bow delivered in the Saxons times 112, Servi in Kent 74 Servitus rufticana 117 Sextary-land, what up Smithefland, what 118 Soca, Socha, Soke, Sokne, what 133, 137 So cage, free and bafe, f f. the derivation of the word, and what it Jignifies, 130. whether it <:/ Gavelkynd Synonima's, f f. its origi- nal, 117. oppofete to Vil- ^ lenage, 140 Socage-land and fervice, fo called elfwhere, in Kenc termed Gavelkynd 49 Socagium,/^ dijiinttion of it into liberum and villanum, whence 141 Socmanni 1^7 Sokerevi i^j* Sokmanry 157 Spelman Sir Henry, his de- rivation of Gavelkynd 3 Spot's flory (of the Kentifh- mens encounter and compo- Jition with the Conquerour) exhibited^ quefticned, re- futed, 6$. a mcer monkijh figment, and why devifed, . 71. when he lived, 6*4. bis commixture of faljity, 6 5 Scigand the Arcbbifoops de- pofmgfor oppofing the Con- guerour, not warranted by ancient fiory jf Sul-aelmefl*e, what 131 Swilling- land, what 117 Swine-gavel, what f 15 Swine-money, what ibid. Swine-paneges, what ibid. Swinehey, what ipo T. Tainland, > lit Tenure, all land in England fubjeft to it, 1 16. how dif- ferent from Cuftom, 144 Tenure, i . by Divine fervice^ z. in Prankalmoigne, 3. in Fee ferm, 4. by Petite Ser- geanty, f . by Eftuage cer- tain, 6. in Bur gage, all So- cage, and wbenct, 130,141 Tenure /' Mortmaine twe- fold 40 Tenures in Chivalry and So- cage, all lands both in Kent, and elfwhere throughout England reducible to one or f other of them I ip Tenures in Gavelkynd new created, p. what before the Conqueft 1 1 2. Terra ad gablum pojita, what 14 Terras cenfuales, what 36 Terra, hseredicaria, 84. libe- ra, f 8, 84. fufanna, 1 1 8. teftamentalis, 8^, 8<5. unde nemini refpondctur, izo Thegcnes, iij Theines, ibid. Threnges A TABLE, or INDEX, &c. Threnges 1 14 Tol-feiler, what 24 Truth often loft by too much altercation 61 Twy-gavel, what 2,8 Twy-fker, what ibid. V. Verftegan, bis derivation of Gavelkynd 3 Villani in Kent 73 Villenage oppofite to Socage, 140 Villeine -fervices 'when fir ft ceafmg fo generally in Kent r 8 Villeine and Villenage in England in the Sixons time 66. in Kent ftnce the Conqueft, ji. and in Ga- velkynd-land, 75. as alfo before the Conqueft 7f Villenagium privilegiatum, 141 if 114 Unlandagend, uabat Ucland W. War eland, 'what 1 1 8 Weil re if, what 6f Were-gavel, wbat i8 Werk-gavel, what z6 Werk-land 5-7 White-rents, wbat 34 Wills in Sixon 8f Wood-gavel, what 16 Words in Ingulphus more an- cient Charter s^ a fort of them queft toned i o I Work -land, what iif The Writ, De rationa>ili parte bonorum, whether lying at the Common Law y or by Cuftome ? 78, 6? 9 1 The Writ o/Exgravi quere- la, where it lies^ I f $ , i f p Yoke- land, what 117 'J-: -FINIS. A 000103869 4