The history of gavel-kind with the etymology thereof : containing also an assertion that our English laws are for the most part those that were used by the antient Brytains, notwithstanding the several conquests of the Romans, Saxons, Danes and Normans : with some observations and remarks upon many especial occurrences of British and English history / by Silas Taylor ; to which is added a short history of William the Conqueror written in Latin by an anonymous author in the time of Henry the first.

THE HISTORY OF GAVELKIND.

TO restrain the propensity and violent current of things Natural, is no trivial or slight attempt: such another undertaking it is to go about to remove mistakes, when two or three Ages have received them without any dubitation: im∣pressions of the like nature will not easily be removed; extirpation always carries a violence along with it; and where there hath been a long irradication, there so much the more of force will be requisite. This Fancy in people is not a Novelty, Thucydides complained of it in his time, saying, Men receive the report of things, * 1.1 though of their own Country, if done before their own time, all alike, from one as from another, without exami∣nation. M^r. Somner, in his Treatise of Gavelkind, hath

laboriously evicted the common Etymologistical no∣tion thereof, and also Learnedly declared the nature of it: yet because I find a deviation in him, who hath discovered that we were in the wrong way; I think it not only Charity, but Duty, to examine and que∣stion that path he hath shewed unto us, lest it should fail us in our Journey; and labouring to avoid one error we fall into another; by which it may also come to pass, that a mis-conception may pass to our Gene∣rations, by the like misfortune that befell our Fore∣fathers in the retention of that common construction so long since received and taken for granted. Yet lest that Learned Gentleman (whose Civilities to me I may not forget) may think me deservedly reprovable, for making this assault, after his elaborate Disquisition and ingenious Contention; I shall onely Apologize in his own words, and desire the Candor of them may be a satisfaction to him, and a defence to me, in these my weak endeavours; and they are those in which he expresseth himself in his 62 page, in these words; Therefore appealing from the Vulgar, I shall apply my self to the more Literate and Judicious, by intendment not so tenacious of a specious Tradition, but that they can with patience hear it questioned, and, if occasion be, re∣futed: not unwilling to desert it, if, upon tryal, it may prove unsound and spurious; and accounting it as thank∣worthy to discover an old Error, as to deliver a new Truth, especially since Truth is not more often, nor more easily lost by too much altercation, than Error is contracted and con∣tinued by too little. This being by him most ingenuously urged, I will not Apologize any further; onely de∣sire the favour to introduce that at this time to him,

which I formerly made use of to my most worthy friend D^r T. B. of Q. C. Oxon. upon the self-same Subject I have now before me; and is that which the incomparable Camden, upon another Subject, not much unlike this of ours, used in an Epistle to Justus Lipsius: and earnestly request it may be taken (as it is) for my sincere protest; That this writing of mine is not altercandi vel calumniandi studio (quod à nobis qui musis & modestiae litamus procul absit) sed cupiditate quâdam cognoscendi; & veritatem si fieri potest ab injuriâ vindi∣candi: and if any thing beyond or besides this can be found in this following Tract, I shall willingly and readily stand corrected: onely before I begin, I beg the favour of the Reader, that he would not expect from me in this Work an exact Method, for in such Polemical Discourses it will prove a very hard task, even upon this ground, that the Foundation being erronious and irregular, it must of necessity follow, that the whole Superstructure be in disorder; by which means the undertaker cannot avoid Tautologies. Yet in it I will be as carefull as I can to shun them. The Method I resolve upon is by Chapters, deduced into Discourses upon several Corrolaries of M^r Somner's. In the first place then we will discourse

CHAP. I.

Concerning first Plantations, double Portion to the Eldest amongst the Jews, Partition Antiently and Modernly used by the Germans, the same custom among the French and Italians; and all this in relation to the Subject of Partition.

M.S. treating of the custom of Gavelkind, a Te∣nure by which all the Sons, upon their Fathers de∣cease, do equally divide and share the Inheritance betwixt them; saith, That he is contented to admit and agree, that Provincially, and particularly here in Kent, we had such a custom, both before and at the Conquest; neither (saith he) am I against their opinion, who affirm the like Course and Custom current in those times throughout the King∣dom, &c. And after presently discoursing upon what by some Authors hath been affirmed, viz. That either the Conqueror, or his Brother Odo brought it thither out of Normandy, and there planted it by the pattern and practice of his own Country; with much reason adds, for had it been from thence transplanted, probably it would not have been confined to Kent, a corner onely of the King∣dom, but have spread it self rather over the whole, by the Conquerors means, whose inclinations and endeavours to propagate and implant here the Customs of his own Country, are too eminent and notorious to be doubted of. I may by the same reason argue, that this Custom being Cur∣rent in more antient times, might have its being not onely in the time of the Saxon Government, but its beginning long before. And for my part I make no que∣stion,

but in elder times it was the custom of all Europe, if not of all the World: especially then, when the inha∣bitants, by reason of their paucity, could so easily afford Ground and Room to their branching and spreading Generations. Such thoughts had Thucydides of the first Plantations and Incolae of Greece; For it is evident (saith he) that that which is now called Hellai, (viz. Greece) was not of old constantly inhabited; but that, at first there were often removals, every one easily leaving the place of his abode, to the violence always of some greater number;—and every man so husbanded the ground, as but barely to live upon it, without any stock of riches; and planted nothing (because it was uncertain when another should invade them, and carry all away, especially, not having the defence of Walls) but made account to be Ma∣sters in any place, of such necessary sustenance as might serve them from day to day. They made little difficulty to change their habitations;—for, the goodness of the Land increasing the power of some particular men, both caused Seditions, (whereby they were ruin'd at home) and withall made them more obnoxious to the insidiation of Strangers. And a Modern Author out of Homer writing of those first a 1.2 Planters, saith, In t••guriis atque antris habitabant, ac sine legibus, sine certis sedibus, palantes, vagerentur. Et Trojanis temportbus in Sicilia, describit Homerus illus aetatis imaginem.

Nec fora conciliis fervent, nec judice: tantum Antra colunt umbrosa: altis in montibus aedes Quisquesuas regit, uxorem natosque: nec ulli Incommune vacat, socias extendere curas.

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Then was it (I believe) that they prudently used this kind of partition, which extended it self no fur∣ther, than a division of Stock and Goods, by it equally to enable all the Participants to settle to a Liveli∣hood, and decline Rapine; which was the use and pra∣ctice of the first Incolae. This is also described by thu∣cydides, discoursing of the antient Greeks, reporting, That they in old time, and such Barbarians as in the Con∣tinent lived near unto the Sea, or else inhabited the Islands, after once they began to cross over one to another in Ships, became Thieves, rifling the weaker, and made this the best means of their living, being a matter at that time no where in disgrace. This (saith Thucydides of his own Age) is manifest by some that dwell on the Continent, amongst whom, so it be performed nobly, it is still esteemed as an Ornament. It was in those elder times that Riches consisted, not in having a propriety to Land, but ra∣ther in the numbers of Servants to manage and defend their great Stocks and Herds of Catel. (And this I guess to be the reason, why many have rationally de∣rived Pecunia from Pecus, and * 1.3 Pecunia in our antient Saxon Laws is often made use of for Pe∣cus) And then we must imagine them rather Pastors than Land∣lords, such who changed their Lands at pleasure, and their habi∣tations together, for the better accommodation of their Stocks; w••ose wealth was summ'd up as Job's, by Servants and Catel. But as People multipli'd, and their

numbers increased; so, that they had not conveniency of wandring as formerly, by the reason that Lands were generally occupi'd, according to the abilities of Fami∣lies in their Stocks and numbers of Catel, then did Land also by de∣grees become impropriated, ob∣serving nevertheless the same man∣ner of partition of such Lands, as before they had done of Goods: for as before, when they might have had Land enough, what should they have done with it without Stock? so now when Land was impropriated, what should they do with Stocks without Land? And for fear of that violence I be∣fore discoursed of, came first of all Cohabitancia, that is, living together in Society, which, without any disgrace, was Villenage; and so from Families rose Villages, and from them Cities. By this means we see how men came to be proprietors both of Lands and Goods: of which, Tacitus makes observation among the antient German customs; Caeteris servis (except those onely employed about Merchandis••) non in no∣strum morem descriptis perfamiliam, ministeriis utuntur: suam quisque sedem, suos penates regit. Frumenti modum Dominus, aut pecoris, aut vestis, ut colono injungit: & servus hactenus patet. Here was their antient manner of living, their antient manner of reserving Rents; not unlike those which I have met with in Scotland, and

believe is in practice in all such places where Pecus is in greater abundance than Pecunia. And for the An∣tiqu••ty of Partition of Lands, we shall find an ex∣ample thereof in the holy Scripture, where it seems to me, that the Community of the Law, and the Know∣ledge of it, are both taken for granted; this being a Case of Law resolved upon a question, and it is to be found in the 21 Chapter of Deuteronomy, verse 7. where, though the Case be in Bigamy, yet there we find an Order of Partition, which was to be observed, even nolenti patre; If a man hath two wives (saith the Text) one beloved, and another hated, and they have born him Children, both the beloved and the hated, and if the first∣born son be hers that was hated, then it shall be, when he maketh his sons to inherit that which he hath, that he may not make the son of the beloved first-born before the son of the hated, which is indeed the first-born, but he shall ac∣knowledge the son of the hated for the first-born, by giving him a double portion of all that is found with him; for he is the beginning of his strength, the right of the first-born is his. This Law provides, that the eldestson, notwith∣standing the father's hatred, shall have his right in all whereof the father was possessed, according to the Rule of Right, which was thus: In case a man had five sons, the father's possessions were divided into six parts, and the eldest had by right two of those parts: By this we may observe the Antiquity of the Partition of Lands and Goods, constituted even amongst those People to whom God himself was Legislator; and it is observable, that it was at the first Plantation of the Land of Canaan, where to me it seems, that this Law glanceth at the fundamental of Dividing, binding up

the father to do this rectifi'd Justice to his son got of the woman hated. * 1.4 Sir Henry Spelman (in Verb. Gaveletum) think∣ing Gavelkind to be of a Sàxon Ori∣ginal, affirms it to be brought out of Germany, and describes the Te∣nure of it very justly: Qua omnes filii ex aequis portionibus, patris ade∣unt hereditatem; and out of Tacitus proves it to be Mos vetus Germaniae. Out of whom I shall add by way of explanation, what he in his Tract de Moribus Germanorum, saith, Haeredes tamen successoresque sui cuique liberi: & nullum Test a∣mentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi: This proximus gradus argues precisely for this antient usage, although it had not been set down to be Mos vetus Germaniae; and (deduced from these antient Times) we find it also to this day (even in regno adeundo) among the Princes of the German Empire; which was once very wittily e∣victed by a merry Gentleman, or, as some say, the Duke's Jester, who perceiving (after the death of one of the Dukes of Saxony) the Brethren participants (claiming according to custom their Apportionments and

Divisions in the Dukedom with the Elder Brother) involv'd into high discontents, and the Council of the Nobility at a stand what course to take for a reconciliation of them, about the parting of the Demesns of the deceased Duke; This Man comes in, and borrows of the young Duke (who it seems hath some preference by his Primogeni∣ture) his Gown, undertaking to shew them a way of Composure: The Duke granting (for diversion rather than from any expectation of solid counsel) his desire; the Jester retiring into the conveniency of a near-adjoyning Closset, with his Penknife cuts the Gown into long shreds from the shoulders to the bottom, and in this injur'd and spoil'd form returns with it on, to the Duke and Council; who won∣dring at this fancy, He told them, That the Dukedom, as yet, was like the Gown as it was lately, perfect and in order; but that

which was now insisted upon, was to render the Dukedom as he had done the Duke's Gown. But to pre∣vent the like mis-hap among other such Participants, in these our days the late Duke of Brunswick did (during his own life) apportion his Principality to his three Sons, leaving to each of them their Allotments intire, who also might each of them have claimed share in one and the same, provided it had not been ended by Comprimise. The like Tenure among the Heritors of Lower Germany is very frequent, especially in the County of Flanders. Mr. S. hath saved me the labour of shewing the usage of it in France, demon∣strating how it takes place even in Paris it self, where it is called by the name of the Roturier; by which name in like sort the Tenure is also known and used over all the Island of Jersey, (excepting some few Families) and in the same manner it overspreads all the Dukedom of Normandy, this last-mentioned Island being formerly an Appurtenant thereof. All which considered, makes it seem to me to be nothing but the Relicks of those antient Gallick Customs, taken up and used upon the Plantation of this part of the Con∣tinent at the first, and from hence in probability it is, (as some imagine) that the Britans of England must look for their true Ancestrie, both as to Customs, Lan∣guage, and Progenitors: concerning which, I shall re∣fer you to Mr. Camden, whose labours have set up such a light as can never be extinguish'd, who discoursing of the first Inhabitants of Britain, (misdoubting the History of Brute) faith, That hereupon it may be concluded, That the antient Gauls, Inhabitants of the Country now called France, and

the Britans of this Isle, spake one and the same Language; and by necessary consequence, the Original of the Britans is to be reduced unto the Gauls; for me must confess, that France or Gaul was Peopled before Britain, as lying nearer unto Armenia— And that the Gauls sent out and planted their Colonies all abroad in Italy, Spain, Germany, Thracia, and Asia; much more then by all reason and congruity in Britain, so near and no less plen∣teous than the rest. And Dubartas doth observe, that most probably all Plantations were by Colohies out of the East, which in time (as it were gradatim) over∣spread the West and North; and not * 1.5 onely France, but Italy it self (the Garden of European Policy, which some would have to be) a Colony also out of Gau••, thinks no dishonor to retain her old Customs, in preserving this Tonure of Partition of Lands from her first Planters. Which was observed by one William Tho∣mas, that wrote a des••ription of Italy, Anno Domini 1549. who in his third Chapter averrs, That the Inhe∣ritance of Lands in Italy goeth by Gavelkind; that is to wit, one Brother as good part as another: So that if a Conte (which is as much to say as an Earl) have twenty Sons, every one of them is called Conte, and the youngest hath as good part in his Father's Lands and Goods as the eldest, unless it be in the Estates of Princes, as of Man∣toua, Ferrara, Urbino, and such others, which the eldest evermore enjoyeth. And by this means it is come to pass, that in process of time, with change from Wealth to Po∣verty, there be divers Earls and Marquises without Land or Goods, retaining nevertheless the glory of that name to them and theirs for ever. And I have read in a more Modern Author (who doth not ascribe it to any

reason, but onely relates the bare State) that there be several Counts in Italy, who at the same time (such is the smallness to which their Estates are reduced by this partition) are not able to maintain a Horse, a Hound, and a Whore. Mr. Thomas hath hapned right upon their Tenure, though he denominates it by such a Term as is utterly unknown to any Italian, but ob∣serves, that the Tenure is generally among the Fami∣lies there, excepting those who of latter days, by force or fraud have wrested themselves from the Dominion of the Roman Empire, and in such places the eldest Son inherits, whilst the other Families still maintain their old Customs, though to the ruine and subversion both of Names and Families. Which Custom cannot fancy to be an Innovation of latter Ages, but an Im∣pression from the antient Inhabitants, when first they did spread themselves in Colonies over Latium. This, for the proof of the general usage of this Partition of Lands in most parts of Europe, and the probability of its use amongst the first Planters of any Nation: Pro∣ceed we next to shew, as being very consonant to the investigation of the Original of this Tenure,

CHAP. II.

The Condition of the Britains when Caesar found them; That Gavelkind was antiently among them: Of (the British Judges) the Druides, of their Bards: Of their Tylwyths: Of their manner of Partitions and Laws concerning their Gavel.

JUlius Caesar resolving upon a War against the Bri∣tains, for their frequent assisting the Gauls, had in the first place to do with the Cantiani, whom he En∣noblisheth with the Character of being more civil than the rest of the Britains, and renders the reason to be their fire upon the Shore, and so the more adapted for Traffick and Commerce with the Gauls, who were ge∣nerally then more civilized than they. These Parts up∣on Caesar's * 1.6 second Invasion, first yielding themselves unto him: (the Second Invasion I term it, for he had but ill fortune in the first, as Lucan hints it in that bold Verse,

Territa quaesitis ostendunt terga Britannis.

Neither can I yield that Caesar made a full Conquest of our Isle, for when Horace flattered Augustus, he then calls Britanny untouch'd:

Intactus aut Britannus ut descenderet Sacra catenatus via.

And Propertius writes thus,

Te manet invictus Romano Marte Britannus.

Tacitus is more plain than all the rest, for he writes Caesarem Britanniam tantum ostendisse non tradidisse Ro∣manis.) In this small Cantle or Par∣cel of our Is••e, * 1.7 Caesar found se∣veral petty Kings, which would give me ground to Collect, that such Fractions were long before Caesar's time, the proceed of this Tenure, and rationally I cannot imagine, it should be the issue of any thing else; for if the Story of Brute be allowed, it is observable, that he first ordered a Partition of this our

Island unto his three Sons, Lhoeger, Camber, and Al∣banact; which kind of Partition, if in the least pro∣bable at that time, or for some long time after, it is no wonder, that by the time Julius Caesar found us out, he should meet in that quarter of the Island, with so many Partialities and Fractions; of which thing him∣self took a serious remark, and ingenuously declares it to be one of the main occasions of facilitating his Conquests over that part of our Country; for (saith he) Dum singuli pugnabant, universi sunt victi, being divided, they could not conveniently come together in Council, or with assistance to repell the common danger; and notwithstanding he calls them rude, and reports that they had their Women in common; Yet cannot I find, but that they much insisted upon their Proprieties; and certainly, their Lands were not in that Predicament: they were in their Persons, Vali∣ant; for their Valour was so Renowned, that the Roman Souldiers, some time after Caesar's Life, through fear of them, made a Mutiny, when they understood they were designed for Britain, murmuringly alle∣ging, that their Masters sent them out of the World to Warr; so greatly was the British Valour in repute among their very Enemies. Their policy was not to be despised, for their Druids were not only their Priests, but their Judges; and Camden out of Dio writes plainly, that they had their own Government and Laws. Annos enim plures ab hoc Caesaris ingress••; haec insula (de Britannia scribit) suis regibus concessa; & suis legibus est usa: These Druids were most famous in Britain, though they were at the same time of great

account in * 1.8 Gaul, of whom Caesar thus Discourseth; It certo anni tempore, in finibus Carnutum, quae Regio totius Galliae media habetur, considunt in loco consecrato; huc om∣nes undique, qui coniroversias habent, conveniunt: eorumque (viz. Drui∣dum) decretis & judiciis parant; Disciplina in Britannia reperta at∣que inde in Galliam translata esse existimatur; He saith, that Gaul had the Discipline of the Druids out of Britain; and in another place, this Britain is accounted the Gymnafium of the Druids; where were taught not only the British, but the Gallick youth; which Learning of theirs was not preserv'd in Books, or by Writing, but as Caesar reports, Magnum ibi numerum versuum ediscere dicuntur: so that those things that they delivered to their Disciples as sacred, were not committed to Paper, or Parchment, but unto Me∣mory; and for the easier fixing of them there, were made into Verse. But now let us consider their Judi∣cial employments, * 1.9 which Caesar also in a short Epitome bestows upon us, in these words, Nam fere de omnibus controversiis publicis privatisque constituunt; si quod est admissum facinus, si caedes facta, si de haereditate, de finibus controversia est, iidem discernunt, praemia paenasque con∣stituunt; si quis privatus autem populus eorum decreto non steterit, Sacrificiis interdicunt; haec poena apud eos est gravissima; They kept a Court of Right, as well as a Criminal Court, where they did determine almost of

all Controversies, publick or private, and what they adjudged Crime; if Murder were committed, if there arose Controversies of Hereditary succession, or if bounds were in question, they took Cognizance of all, and awarded Punishment, or Reward, &c. but that of which I would have an especial Consideration, and Animadvertency, is in these words, Si de Haere∣ditate, de finibus Controversia est; can Controversies of Inheritance, or Hereditary Succession arise, where one of the Sons by Law and Custom Inherits? can there be any Considerable question of bounds, where one Son takes Possession of all whereof his Father Died seised, excluding his other Brethren? in this small Summary of Judgments, under the Cognizance of the Druids, Caesar placeth these as the most remarkable Customs and eminent Arricles. The controversies of Hereditary succession are not considerable where the Land descends to one Son; for if it be accor∣ding to Custom, that it should so descend, I know not with whom the Controversie should be, it cannot be with any of his Brethren; for they have no right, except it be by our Gavel; nor with his Sisters; for in case the Father in his Life-time hath not provided for them, they are left to his mercy; so that the Controversie, (if any there be) where the Land descends to the one, excluding all the rest of the Sons, must be with himself. The controversies of single Haeredation, though in Collateral lines, could not induce such a remark, and notice from Caesar; because such questions fall out but rarely, even in this well peopled Age; neither doth the Trial upon a Majus jus in one days, commonly occurr. But put the

Controversies together, (as Caesar hath joyn'd them) that were submitted to the Judgment and Sentence of these Druids, which I am perswaded are of one and the same Nature; for bounds betwixt Neighbour and Neighbour, may be in question; but this (I say) must not be supposed to be wholly Disjunctive from the rest; for thus it is expressed, Si de Haereditate, de fini∣bus Controversia est; it is not with the Connexion of Aut, Or and Of, but lies plainly in Conjunction, and Bounds hath some probable reference to the Inheri∣tance, which being to be parted by our Gavel among the Brethren, would require much use of the Wisdome and Moderation of the Druids, and also of their Au∣thority, to set out to every Brother or Participant his portion or part, without giving cause of Distast to any. For we see, where this Tenure at this day is in Force, that in case the Proprietor of such partible Lands, leaves onely but one Son after him; there can be no Quarrel, but that, that onely Son enters upon, and possesseth the Land without Competition or Corrival∣ship. Thus in relation to the Druids, the Judges in those Ages, I have given a short account: a little after Caesar's time, they ceased in Gaul, for * 1.10 Pliny saith, that Tiberii Caesaris Principatus sustulit Druidas eorum; yet in Britain they were in request long after, even then, when the Romans had almost made perfect their Con∣quests, by the atchieving of that memorable Battel in the Island of Mona, (at present denominated Angle∣sey.) We now proceed in our Discourse to the Bardi, who think themselves to be the Loca tenentes Druidum. These were the British Heralds and Registers, as * 1.11 Am∣mian. Marcellinus records them, whom with the

Druids and the Eubages, he thus makes famous; per haec (saith he) locis hominibusque paulatim excultis, viguere studia laudabilium doctrinarum inchoata per Bar∣dos & Eubages & Druidas; & Bardi quidem fortia virorum illustrium facta, heroicis composita versibus, cum dulcibus lyrae modulis, cantitarunt. Eubages vero scru∣tantes summa & sublimia naturae pandere, conabantur; inter hos Druides ingeniis celsores, &c. And of these Bards it is, that Lucan in a few Verses hath left so Worthy and Ancient a Memorial, which I will not scruple to Transcribe.

Vos quoque qui fortes animas belloque peremptas Laudibus in longum vates dimittitis aevum, Plurima securi fudistis carmina Bardi.

Of whom Mr. Camden also adds, Qui praeterquam quo eo munere funguntur, etiam praetexendis Genealogiis operam imprimis studiose navant; The carefulness of these Bards from Age to Age hath been so great, that there are none who look into such British Historical concernments, but easily observe it; and also see by that Learning and Knowledge that is extant in their Writings, how fit they were to take Care and Cog∣nizance of such matters as concerned their Office, in relation to descents upon the Tenure of Partition. And although it may take up too much Paper for this small Volume well to spare, yet will it be much to our purpose, to understand their manner of Recording their Lines and Genealogies, so as to six their Pede∣grees right, and to preserve them free from confusion in their Collateral lines; By which care and art, (not∣withstanding

their Tenure) they kept all unconfoun∣ded. Then first know, that their Genealogies, espe∣cially of their principal Gentry, runs seldome further than to certain Tylwyths, which as Doctor Davies expounds it, signifies, Familia, famulitium & Tribus, which Word takes its derivation either from Tyle (i. e.) Locus ubi stetit domus, vel locus aedificandae domui aptus, or else from Tylath, which signifies Trabs, Tignus; whether you take it in the first Deri∣vation, then it will afford us the Signification of a place whereupon to build a House: or if in the second, then doth it hold out in its Signification, a Beam in the Building; either of which will serve our present pur∣pose: for Tylwyth is a Tribe, or Family, branching or issuing forth of another, by that which we in our English Heraldry call second or third Houses; so that in case, the Great Paternal stock spread or branched it self into several Tylwyths, or Houses, these Bards preserved the Memorial thereof, and observed this method in their ordinary Memorials of Families. They carry no second or younger House further than his Tylwyth, (herein they respect Primogeniture) and there cease; taking it for granted, that the great Paternal stock, was, or should be so well known, that there should be no need at all to mention it, referring all the Cadets of a Family, (and sometimes also the Elder Family it self) to their Tylwyth; by this, Creating in them an exact Propriety to that Stock; which way (I say) was carefully preserved by these their Bards. A Specimen whereof (though not of great Antiquity, yet being exhibited under the hand of one that writes himself Bard,) I shall present to you, and it is thus.

Mainerch ap Driffyn Lord of Brechnock,

1. Blethin ap Mainarch Lord of Brechnock, was together with King Rees his Brother-in Law, with many other Gentlemen, slain by the Normans by West of Brechnock, near the River of Uske; the place is to this day called the Battel.

Ellen Daughter of Theodore King of South-Wales, and Sister to that noble Rees ap Tudore or Theo∣dore.

2. Driffyn ap Mainarch.

3. Drympeck ap Mai∣narch.

Moreiddig Warwin: he was born with an Adder about his neck, for which cause he forsook his Pater∣nal Coat, and gave the three Childrens Heads, their Necks enwrapped about with so many Snakes Proper, &c. and of him are issued the Vaughans of Brechnock-shire, and ma∣ny other Gentlemen, who are termed Tylwyth Voreiddig.

1. Gwgan ap Blethin.

2. Cadivor ap Blethin Gryff. Gwyr: from whom the Families of Brechn. Gla∣morg. and Carmatthen∣shires come: called Tyl∣wyth Howel-Melyn, that is, Howel-Melyns Posterity.

Owen Gethyn, from whom many Gentlemen in Brechnock-shire are descended, called Tyl∣wyth Owen Gethyn, that is, the Posterity or Tribe of Owen Gethin.

Here you see this Bard hath not onely vouchsafed unto us the Tylwyths arising out of this short Pedi∣gree, but also the very meaning of the word in the English. Thus were their Memorials preserved by them, who the better to infix them, and also for a greater stimulum to Heroick Actions, in their Songs de∣duced from Age to Age delivered to them from their Predecessors, did celebrate the Praise of their Wor∣thy Men; which Custom, in some places, they yet re∣tain. And of so great account were these Bards, that by the Laws of Howel-dha, an honorable Provision was made for the chief of them in the Court, who was to reside near the Person of the Prince; and of so great repute was this Place or Office, that to the Dignity was annexed a particular Refugium. The use of these Tylwyths was to shew, not onely the Originals of Families, as if their work had been meerly to run over a Pedigree, but the several Distinctions and Distances of Birth, that in case any Line should make a failer, the next in degree (which is the same with the German Proximus Gradus) may make an unconfounded use of their interest, according to the Rules of Partition by their Gavel. I told you before, how in all their Pedi∣grees there was a preference of Primogeniture, which was onely in honor and respect, and not in unequal divisions of the Patrimony; for in these, the better to carry a light ••••d lustre, they pointed at the Pen∣ennedl of each Family, who, as the Prince of their Tribe and Kindred, was always had in much honor and reverence among them. Which respect was like that wherewith the Jews did honor their Chiefs, mention∣ing them with that title of respect, in calling them

sometimes Heads of their Father's house, other-while Chief men; and in other places of Scripture they are made known by this account, viz. By their Generations, after the House of their Fathers; and in this form did they inroll their Bands of Soldiers for the War, for it is written in the Chronicles, * 1.12 that David assembled all the Princes of Israel, the Princes of the Tribes, &c. unto Je∣rusalem. * 1.13 In like manner it is recorded in Numbers, that the name of the Israelite that was slain was Zimti, the son of Salu, a Prince of a chief House among the Simeonites. And in the following verse it is remembred, that, The name of the Midianitish woman that was slain was Cozbi, the daughter of Zur; he was head of a People, and of a chief House in Midian. Where this order of Par∣tition was in force, there is it most necessary that Genea∣logies should be most exactly kept; and by the Mo∣saical Law so great care was taken in this point, that the Tribes were not permitted to have mixtions toge∣ther by Inter-marriages. And although in many of the High-lands of Scotland they have lost this Tenure, yet have they with much affection retained their respects to the Heads of their Clans, calling them their Chiefs, to whom in former times they gave more respect, and were with more obedience commanded, than by their Princes. The Pedigree before recited I told you I gave, to shew their manner of recording their Families of Gentry, distinguished from their Pen-cennedl. I have another that ••••ows how tenaciously their Gavel was in force among them, even in Regno ad••un••o, and how by it, in process of time, that Principality came to great loss and destruction. Roderick the Great being Prince of all Wales, had three sons, among whom he

divided his Territory; which three sons were called y Tri Twysoc Talaethioc, (that is) the Three Crowned Princes: because every one of them did wear upon his Bonnet or Helmet a Coronet of Gold, being a Broad lace or Hatband indented upwards, set and wrought with precious Stones, which in the British was called Talaeth, by which name the Nurses do call the Head-band wherewith a Childs head is bound up∣permost, at this time, as Doctor Powel hath critically observed. But that it may be the more plain and per∣spicuous, take it Genealogistically, thus:

• ...Roderick surnamed the Great Prince of Wales.
  • 1. Mervyn Prince of North-Wales.
  • 2. Cadelh Prince of South-Wales. Howel-dha, in whom the Territories of North-Wales and South-Wales were united, and was the se∣cond Legislator of the Bri∣tans, An. Christi 942.
  • 3. Anarawd Prince of Powis. After several Successions, which I purposely omit to save the labour of need∣lesly lengthning the Line, there from him proceeded one Convyn-Blethin ap Convyn, who being Prince of Powis-land, divided it to his two sons
    • 1. Meredith ap Blethin, who divided his appartment of Powis-land betwixt his two sons

• ...
  • ...
    • ...
      • 1. Madoc, who had upon the Division that part that was called Powys-Ua∣doc, or Madoc his Powis; He died Anno D. 1160. at Winchester, and was called the Prince of Pow∣ys: he was a true friend to the King of England. Susanua, daughter of Gruffyth ap Conan Prince of North-Wales.
      • 2. Gruffyth Prince of Powys, had an∣other share of Powys land.
        • 1. Gruffith Maelor had for his share Bromefield, Yale, Hopedale, Chirk, &c.
        • 2. Owen Vachan had Mechain-Iscoid, &c.
      • 2. Cadogan ap Ble∣thin.
    • 1 Owyn Brogynton, a base son of Madoc ap Blethin, had Dyn∣mael and Edeirneon.

And Doctor Powel in his Additaments to the Cambrian History, in those (I mean) that he hath set betwixt the years 808. and 810. gives a full Discourse of the Primitive use of this Tenure, and also of the Modern abuse thereof. For upon those great Feuds that arose betwixt the Descendants of Conan Tindaethwy, upon this account of Partition, He writes thus.

Here I think fit to say somewhat of the Custom and Tenure of Wales; whereof this mischief grew, (viz. the Feuds betwixt Brethren, the Rending the Government in pieces, &c.) that is, the Division of the Father's Inheritance amongst all the Sons, commonly called Ga∣velkind; Gavel is a British term, signifying a Hold, because every one of the Sons, did hold some Portion of

his Father's Lands, as his Lawfull Son and Successor. This was the cause, not only of the overthrow of all the Antient Nobility in Wales, (for by that means, the Inheritance being continually Divided, and Subdivided amongst the Children, and the Children's Children, &c. was at length brought to nothing) but also of much Bloodshed, and unnatural Strife and Contention amongst Brethren; a•• we have here an Example, (viz. the Hi∣story of the Descendants of Conan Tindaethwy) and many other in this History, (He means in Lancarvan's British History.) * 1.14 This kind of Partition (Dr. Powel adds) is very good to plant and settle any Nation in a large Country, not Inhabited; but in a populous Coun∣try, already furnished with Inhabitants, it is the very Decay of great Families, and as I said before, the cause of Strife and Debate.

The reading of this passage was it, which, many years since, first set my thoughts at Enmity with the Saxon Parentage of Gavelkind; I mean that of gip-eal-cynne, give all Kyn. This it was that gave me not only some examples of the use of it among the Welch, but also an interpretation of half the name; for I find the Doctor himself in these Addi∣taments to this Welch History, even in this passage I have made use of, startled at the latter part of the Composition; for he hath written (Kind) in small different Letters, whereas Gavel is wrote in great. But to return to the Pedegree, by which you plainly perceive the use and the effects of this British Gavel, and not only so, but the partition, as to descent also to the Legitimate Children; for the Continuator of Lancarvan's History hath this note upon Owen Brogyn∣ton, (viz. his having such an Apportionment of his

Father's Lands, being a Bastard,)

That base Sons were not basely esteemed, but with the other had part of their Father's Inheritance; and so had others through Wales, especially if they were stout and of noble Cou∣rage.

I confess this passage did at first stumble me; with some others of the like nature, till seriously ob∣serving and comparing together the Laws of Howel-dha, I had as to the British History, a great deal of light administred, which inforced me from my Incre∣dulity, to admire the Observer or Continuator: I ga∣ther'd from this Law of Howel-dha, (Si villanus Regis filium vel optimatis, ex licencia Regis alendum fusceperit; filius ille particeps erit. Haereditatis cum filiis Villani post mortem ejus,) That a Bastard may as pro∣bably receive a part in his Father's Estate by Law, as that a Foster-child should have a right to a Division of his Foster-father's Land: But in these you see, by what means the Prinoipality of Wales crumbled to nothing; who gave as much opportunity to the Saxons and Normans by this division to Conquer them, as by the like Fractions their Ancestors did give facility and occa∣sion to the Romans. But to return to our purpose; This last division of Roderick the Great, mentioned in our Discourse, is said to be done, According to the custom of Wales, which being so, then certainly Par∣tition is according to the custom of Wales. And this I further Collect, that it was not altogether the Land, which in former times was so much desired, (which I gather from that vast proportion of waste Land at this day in that Territory) or was aequivalently con∣sidered with the Cattel and Stock wherewith that Land was to be managed; for those Mulcts and Impo∣sitions

of Fines and Amerciaments, mentioned in the Laws of Howel-dha, were very severe; because then they were imposed, and did proceed from such things as were their greatest Riches; and was not only in Mo∣ney, but principally in Cattel of all sorts, which was their Stocks; and this leads me to examine whether, and to shew that

CHAP. 3.

Neither the Romans nor the Saxons altered our antient Laws. Of the antient honour and use of the Reguli. Danelaege, Merkenlaege, and Westsaxonlaege, what they were.

MR. S. saith, p. 61. For my part I conceive it (viz. Gavelkind) may carry an Antiquity far greater than the time of the Norman Conquest, &c. If this be conceded, I shall then go a little further with my Conceptions in this point, and labour to make it probable, that the Laws and Customs of the Britains were not altered (at least so much, as by the general current of Writters is commonly received) by either the Conquests of the Romans, or Saxons: Not that I deny, but that each of them made some sort of Im∣pression upon them in relation to their Manners, Laws and Customs, though the main Body of them stood firm and unshaken; and first for the Romans, who in those times were much Diseased with that Itch of Conquest, and too too great a desire of Glory, by it being carried out sometimes to attempt divers great

things, upon the account of Fame, that were even un∣profitable; yet was it not their Manner or Custom, when they subdued any Country, to alter the Customs or Laws thereof; but rather to settle the Conquered, upon a Foundation of enjoying their Liberties, only being subject to the Title of Conquest; so was it in Jury with the Jews, to whom in Holy writ you find allowed many things, according to their Customs, both in permitting of the Ceremonies of their Religion, and also in Judicial Affairs: In the like manner dealt they with some of the Graecian Common-wealths: The Roman Conqueror shewing to one of them a better Division of their Country, in relation to the more orderly Existency of their Republick, than ever they themselves had before taken notice of; and not only so, but told them, (being at that time assembled, and expecting some severe Doom) that if they would proceed in their antient way of Government, they should have their Liberty, provided they owned the Romans their Superiors in right of Conquest; who only desired such a power over them by their Garri∣sons, (the burden and charge whereof should not be considerable to them) that in case they Rebelled, those they would keep as Doors and Inlets, by which they would pour in such Forces, as should reduce them to their peace: But that such a Defection, should be the occasion of the loss of their Freedome. And after this manner was the common practice observed by the Romans in their Conquests. But to return home, I find not that either Caesar in his Commentaries, Lucan, or Tacitus, mention or point out, any Alteration in the Religion, or in the Customs, or so much as the Cere∣monies

of the Druids: and though I must yield, that from the Romans the Britains had most part of their Civility, in the use of Habits, manner of Warring, Build∣ings, Baths, &c. yet can I not Collect any innovation as to their Laws; and can boldly affirm, that in the midst of these Alterations, as we had the Terms of Art and Appellations of things from them, so again the Britains left some reliques of their Language a∣mong the Romans; for what, the Inhabitants of this Island had, that to the Romans were reputed Rari∣ties, to them did they accept of British appellations, smoothing them into their own Idiom. The Britains at that time were famous for their Art in Contexture of Baskets, being things very much by the Romans de∣sired, who hearing the Britains calling them in their Language Basgawd, or Bascoed, notwithstanding they had words of their own whereby to express the like thing, as Sporta, Cophinus, Corbis, yet Martial makes use of the British word, making it to speak Latin in this his Distick:

Barbara de pictis venit Bascauda Britannis, Sed me jam mavult dicere Roma suam.

So Calerva, Britannicè, Caturfa. * 1.15 Trimarcia, Brit. Tri-march, (i.e.) three Horses. Essedum, Brit Essed. Candela, Brit. Canwyll. The same original may you find of these words, Apennine, Armorica, Galstum, Bardo-cucullum, and of many o∣thers, which Mr. Camden hath Collected, and for bre∣vity

sake I omit. Return we then to shew how that the Romans, after a long Warr being Victors, did not alter the fundamental Constitutions or Laus of the Inha∣bitants of Britanny; all Histories that relate to those Ages, affirm, that they had their Liberty as to the Wor∣ship of their Gods, of whom they had several, with their Fanes and Flamens devoted unto them, and unknown to the Romans, (who multiplied as many Gods, even those also of the Nations they Conquered, as any people in the known World:) And at the same time, (if our Histories fail us not) the Britains had the glorious Gospel of Christ Jesus, shining in several parts of this Land, by the Preaching of Joseph of Arima∣thea, even at such time (I say) when the Romans were scarce warm in their new Conquests, as the Antiquities of Glastenbury do import. Consider also the History of Saint Alban our Proto-martyr, who had been par∣ticipant of the Honour of the Roman Military Girdle, whose Death is not to be imputed to any Act of the Roman Government, but wholly to the Unruliness and Impetuosity of a popular Tumult, which may some times happen in well-formed Governments. And so great respect had the Romans to what they thought just, that where they had spread their Conquests, they would never intermeddle to impeach propriety. It was not the Government, nor the Propraetors, that did that In∣jury that exasperated Boadicea, the Queen of the Iceni, but the Toll-gatherers, and Publicans, who at∣tempted not to force her Land from her, upon the pretence of Conquest, for her Title to it was too well known, than to be invalidated by such a design; but they endeavoured, under the pretext of a false Will of

her Husbands, to create as false a Title to Caesar, which certainly confirms their permitting of propriety; for otherwise, by virtue of their Conquests they might have seised it, without going about to make a Title by a pretended Will. The effect of which action was such, and had so great an Influence upon the Spirits of the Britains, that it well near sent the Roman Eagles flying out of this Island, and still doth leave a re∣marque to Posterity of the great Sense our Ancestors had of their Rights and Liberties, even in those Elder, Rude, and Unpolish't times. They doubtlesly would not have run those hazards for the Roman Laws or Rights; what they did, was out of the sense of their own Liberties, which is made out by the speech of Boadicea to her Army, transmitted to us by the care of so Grave an Author as * 1.16 Tacitus. The quarrel was, their Liberties violated, upon which she thus ad∣dresseth her self to her Britains; Solitum (saith she, when the two Armies were Ranged) quidem Bri∣tannis foeminarum ductu bellare, testabatur; sed tunc non ut tant is majoribus ortam regnum & opes, verum ut unam è vulgo; libertatem amissam, consectum verberibus cor∣pus, contrectatam filiarum pudicitiam ulcisci; and con∣cludes with a Masculine courage; Si copias armatorum, si causas belli secum expenderent; vincendum illà atie; vel cadendum esse: id mulieri destinatum; viverent viri & servirent. She endeavours to clear the Britains of their fears and doubts, which may arise among them, from her Feminine Conduct; And the more to fire their Valour, declares to them an incitement from their lost Liberty: and although the success answered not her resolution; yet hence we may Collect, with how much

zeal and courage they did labour to assert their free∣domes, which must (I say) be those that they en∣joy'd by their proper and antient Laws and Customs; and in this affair, (before the Battel) to such a height their just rage was incensed, that like a furious Tor∣rent, they over-ran several Countries, over-bore the Garrison of Verolamium, and destroyed Camolodunum; rasing to the ground, the Temple therein Dedicated to Divus Claudius, which Tacitus saith, was quasi Ara aeternae dominationis; of which a Poet of that Age useth this expression unto him,

Oceanusque tuas ultra se respicit Aras, Qui finis mundo, non erit imperio.

Some time after this ill success of Boadicea, Cara∣ctacus the Prince of the Silures, in the like sense did deliver himself to his Souldiers; even then when he was about to fight the last deciding Battel for the Bri∣tish Liberty; though he Capitulates many violations that they were likely to suffer, in case P. Ostorius with the, Romans should be Victors: Yet mentions not at all the change of Laws, which had it been the pra∣ctice of the Romans, without question had been here accumulated with all the aggravations imaginable. But take it as Tacitus hath reported it; Caractacus huc & illuc volitans, illum diem, illam aciem testabatur, aut recuperandae libertatis, aut servitutis aeternae initium fore: vocabat nomina Majorum, qui Dictatorem Caesarem pe∣pulissent; quorum virtute vacui a securib•• & pributic intemerata conjugum & liberorum corpora, retinerent. These were their fears, these their doubts; the reco∣very

of their Liberty and Freedome from bondage, were the arguments then used to inflame their Valour: no mention of the loss of their Laws, as not fearing it from their practice; but the argument was inforced, by the gain of their security from the Rapes, Hatchets, and Tributes of the Romans; as Aegesippus writing of Claudi••, and cited by Mr. Camden, affirms; Quos (viz. Britannos) aetas superior ignoravit, didicit Romanorum victoria; serviunt & ipsi, qui quid esset servitus, igno∣rabant; soli sibi nati, & semper sibi liberi. Here again we see the sense the Britains had of their Liberties and Laws; who notwithstanding they were bridled by several Garrisons and Colonies of the Roman Souldiers, yet durst shew their faces in Battel, (chusing rather Death than such a Life) in the Vindication of those Liberties conveyed to them from the prudence and experience of their Ancestors, and continued through all those times the Romans had interest here. Let us now proceed, to examine how these Laws and Cu∣stoms fared in the next grand revolution. After some time that the Romans had bereaved Britain of those of her youth, that had been tra••••ed up in Military disci∣pline, which should have been the strength of her Walls, and force of her Fortresses; and had by rea∣son of those great and dangerous Diversions into other Lands, left this Island naked, and so consequently to shift for it self; there was some time passed in Con∣fusions, rather than in Government; in Usurpations, rather than Settlements; some one or other here in∣vesting themselves with an Imperial Robe, till at last by these troublesome means the Government hereof returned into a Monarchy, though through many sad

and dangerous Convulsions, as we may gather out of the Lamentations of Gildas. But on the Person of Vortiger devolv'd at last we find it, in whose Reign the Picts, like an impetuous inundation, break in upon the Northern parts: and notwithstanding that wonderfull relique of the indefatigable labour and cost of the Romans, in that Wall which reached from Sea to Sea, yet through it they passed, Destroying and Impove∣rishing all: The Britains unable to confront them, having lost their Souldiery; and the rest of them so effeminated, * 1.17 that they durst not try their power against them; and having ineffectually hazarded and given up their Lives, and long in vain implored help and assistance from Aetius the Consul, (as he is termed by our Writers;) who was a Roman General in Africk, together with one Bonifacius, of both which * 1.18 Proco∣pius writes; that they were Valiant and expert Souldiers, inferiour to none of their time; being men so high in Worth and Spirit, that he shall not err, that calls them the last of the Romans: when the Britains petitioned his assistance, it was at that time (I believe) that by the means of the Empress ••••••idia, he was revoked from his Command in Africk: but from him they gained no∣thing; so that at the last, Vortiger engages to their aid certain * 1.19 Saxons, who had enured themselves to Ryracies, and were Rovers at Sea, under the Com∣mand

of two Brethren Hengist & Horsus: They with nine thousand Saxons undertook the defence of the fore∣mentioned wall against the Picts; which they prospe∣rously and successefully performed. The entertain∣ment of these people, who had will, and by degrees power to enforce and subject them, was the first Ori∣ginal of those disasters that afterward befell them; but this ought not to be conceived to be done at this time with these nine Thousand Saxons; for certainly it was by other means: Vortiger then King of the Britains, although by the common opinion of Wri∣ters he is said to have bestowed upon Hengist the Kingdome of Kent, by way of remuneration for his services: yet cannot I credit, that, that circuit should be erected into a distinct Regal jurisdiction, by the or∣der of one that seemed to be in possession of an entire Regal authority over the greatest part of this Island; nor can I disgest the notion of * 1.20 Hengist his forcible usurpation of Kent at this present as a Kingdome for himself and his heirs. For the first, we must consider Hengist left a very considerable number of his Saxons to defend the wall against the Picts; and these must be out of his first number: and how can we then rationally imagine, that he was able to retain with him, such a considerable force, as could probably take possession of this Kingdome, against the wills or consents of the proprietors? for I much que∣stion whether all his power conjoyned (with many more) could in probability have been able to supplant so populous, and so understanding a people as Caesar

reports them to be; or that in any likelihood those in∣habitants, upon a contract or gift of Vortigers to Hen∣gist, would have so tamely submitted themselves to an everlasting exilement from their ancient seats and pla∣ces of nativity, or so easily have suffered the loss of them. I very well understand that it may be strongly objected against me: that these 9000 Saxons being a∣ble to effect that which the Britai••s could not, would be able in probability to master this one County; but in answer thereunto, many particulars are to be conside∣red, First, that the Saxons were not near that number they first brought in, (as I said before) by taking no∣tice of a proportionable force probably left to guard the wall; reflecting upon the quantity that wall would necessarily require for its defence. These Pictish In∣vasions were done at such time, when the * 1.21 Britains (as Gildas re∣ports them) were in intestine feuds among themselves; by which it so fell out, that they did not go joynt∣ly to assist one another against this common Enemy; but by those Quarrels left those nearest to the confines, unto their merciless cruelty: and we find that when the Saxons observed not their Articles afterwards, then the Britains united; (though too late): and were so united, before that any Saxon recruites were landed in Britain. And those families under the provocation of expulsion, probably, would have freely ventured their lives, rather than be exposed to penury and famine (which are worse than death) in vindication of their estates & livelihoods; and what could the Saxon opposition do, when in all probability

they were enforced to separate to take possession of those Lands? and if they in their separation had enjoy∣ed peace and quietness; what can be imagined, such a small number should have done, with so great a Tract of Land as that is? Certainly they were not able to manure and cultivate it. Again, if the Britains had been expuls'd, what became of them? or where were they replanted? this would have received as great a * 1.22 Note in Histo∣ry as the Planting afterwards of the Britains in Armorica: but that which would cause me most to wonder, is, that in the midst of so many re∣volutions, changes and the hard for∣tune that befell Vortiger, Hengist should be able to have waded through the many difficulties necessarily attending him, for the space of three and thirty years, by the influence only (as our Historians would have it) his Daughter Rowena had upon Vortiger. But to find out the probability of that which hath caused all this noise (not that I am ignorant, but that afterwards the Saxons did reach and grasp the Government of this Island; and did get themselves into a full power there∣of; but what I discourse of is of that Tract of time in the Reign of King Vortiger) here we must under∣stand that the Romans toward the latter times of their Government in this our Isle, had in these parts a Comes or Lieutenant, that was denominated, Vir spectabil••s Littoris Saxonici; who had in charge the defence of this Shore against the sudden incursions and depre∣dations of the Saxons, who it seems had used that Trade of infesting these shores, long before the Ro∣mans

quitted our Island; which when they had de∣serted, these were the men, that * 1.23 Vortiger waged against the Picts; prudently believing I guess it, by his wise placing of them) that his imploying and ingaging them would at one and the same time, not onely case these Shores from their own frequent depredations; and preferve them from the inroads of others of the same Countrey and Trade; but also ingage them (who were a people enured to fights and hardships) against the Picts, and to this purpose he placed the one part of them upon the Picts-wall against his Northern Enemies by Land; the other part upon the Kentish shores against his Northern Enemies by Sea: (the best designment that ever was or can be cannot ensure success to it;) but what than this could be more prudent? and more for the benefit and security of his Subjects? And although Vortiger pass among all writers under the severe cen∣sure of high Infamy, yet may there be much collected in his behalf, out of those clouded notions in History: whether it was his permitting so great numbers of Sax∣ons to enter his Kingdome, or his own personal vices, that made him so distastefull to his Subjects, I will not take upon me positively to resolve; sure I am, I find him expuls'd his Throne; and yet with much desire and applause restored; and in my conceit, the restauration of him doth more argue for him, than any thing I ever met with could against him. It is not usual with a people after they have rejected and divested a Prince, and set up another in his place, to return and reinvest

the old one; unless some visible worth were eminent in him. But whatever the reasons were; this I observe, that in the way of management of the Government of his Kingdome, he traced the same path of Prudence chalked out to him by the Romans. For M^r. Lambert out of William of Malmsbury reports, that in the time of this King, there was one Guorongus vice-Roy or Leiute∣nant of Kent, and M^r. Cambden gives us an account thereof (worthy of much note) Vortigernus Guorongum Cantio praefecit (i.e.) pro-regem sive libertum, quo nesci∣ente (observe this) hanc regionem (ut habent Ninnius & Malmesb.) statim Hengisto Saxoni in gratiam Row∣enae, ejus filiae, quam misere deperibat, gratis concessit. I cannot fancy Rowena to be the price of Kent; nor that the Land of that Country was bestowed upon Hengist; but the gift or concession was of so much only as Guorongus did lately possess, which was the Leiutenantship thereof; and seems to be no other than those Regalpowers, which were formerly granted by the Romans to the Honour of the Comites, of which M^r. Campden gives several accounts; for in one place he finds them denominated Co∣mites litoris Saxonici per Britanniam, and in another place Viri spectabiles; and tells us that in Maritine Affairs they were so well skill'd (writing of the Sax∣ons Pyracies) that; ad eorum depraedationes coercendas * 1.24 Comites litoris Saxonici per Britanniam & Galliam constituti fuerant: for the Saxons (I say) had long be∣fore

Vortigers Reign infested the British shores. But how Hengist and his Saxons did answer their trust, I need not tell you, for it is plain they took an ell where but an inch was given; and out of this Hide did cut to themselves large Thongs. It * 1.25 was an antient Custome a∣mong the Britains, and after them of the Saxons, to give the Title of Reguli to all Lords that had the Charge and Custody of * 1.26 Marches and Limits: the names

of many Honoured with that Title I can shew: espe∣cially such as were Custodes or Keepers of that Famous Limit betwixt the Mercians and Britains, set out by that Renowned ditch which Offa the King of Mercia drew; a Memorial of some of them out of an antient * 1.27 M S. Chronicle that I have, I shall exhibit, wherein such persons were not onely called Reguli, but also Reges. Penda (saith this Anonymous Author) did spread his Kingdome of Mercia very farr, about the year of Christ 620. for he slew in Battel two Kings of Northumber∣land, Saint Edwin, and Saint Oswald; and three Kings of the Eastangles, Egric, S^t. Sigebert, & Anna. The said Penda had by his Queen Kineswith sive Sons, Wolfer, Saint Ethelred, Saint Merewald, Saint Mercelin, and one other, (This without a Name in this place was his El∣dest Son Peada) and two Daughters, Saint Kynesburg, and Kyneswith; he Reigned 30 years. Wulpher was the first King of the Mercians that received the Faith of Christ, and he married S^t. Ermenild the Daughter of Ercombert King of Kent, by his Queen S^t. Sexburge: Germanus vero ipsius Westanheconorum Rex Sanctus Merewoldus: married S^t. Ermenburg the Daughter of

Ermenred the King, Brother of the said Ercombert, and by her had three Daughters, all of them Saints, two of their Names were Milburg and Mildrith, and one Son S^t. Merimnus, who being dead, his Uncle S^t. Mercelin did Reign in his stead. Here be several Kings whose Names you will hardly find in the Chronicles. But * 1.28 Leland in his Itinerary reports out of some Books in his time found in Religious houses, that this Merewal∣dus, whom he calls King of the Marches, built a Mona∣stery for Nunns at Lempster (which in the Britsh is called Lian-Llieni, Lleian signifying virgo Vestalis, Sanctimontalis) in English, the Church of Nunns, and endowed it with all the Land thereabout, saving onely the Lordship now caulid Kingesland; after these successions in this small Kingdom, I find one Ethelmund was also King of the West anheconi, who were the Inhabitants of the North-west parts of Herefordshire; certain to be so not only by the places mentioned in that Tract of Land, but for that I find one Wlfhard (who by Bishop Godwin is doubtlesly mistaken to be put as Successor to Utellus, but should have his place betwixt Podda and Ecca Bi∣shops of Hereford) in his signing to the Charter gran∣ted to the Abbey of Winchelcomb, Anno Dom. 811. writes himself thus, * 1.29 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Ego Wulfhardus Hecanae (Quae nunc Herefordiensis dicitur) Episcopus consensi & sub∣scripsi. And Math. of Westminster writes that he was Bishop of Hereford in the year of our Lord 765. at that time when Offa King of Mercia procured of Pope Adri∣an an Archbishops Seat at Lichfield. Many other Reguli were in these Merches, for they did consist of several frontier Jur••sdictions: I have found some very antient, as of Pibanus King of Ergin (now Urchinfeld) the

Grandfather of S^t. Dubritius the Archhishop of Caerleon in the Reign of King Arthur: of one Gorvodius King of the same place after him. But I cannot let pass that which I found in a Record transcribed into a Register book of one of the Bishops of Hereford, certifyed as I guess from Innocent the third, concerning a donation to the Church of Hereford; wherein the Donor is termed Regulus (his name at present I do not remember, but reforr it to another place) he is said (to fortifie his gift to the Church) in it; to be in plena Regia potestate. Milfrith, the principal Benefactor, if not Founder of the Minster at Hereford, is denominated sometimes Regulus, sometimes Rex. Four Reguli in Kent at one and the same time witnessing to a Charter of one of the Kings thereof. In the time of Julius Caesar, * 1.30 Quatuor erant Reguli qui Cantio praeerant, Cingetorix, Carvilius, Taxi∣magulus, & Sego••ax; upon which M^r. Campden makes a jest, saying of Caesar; quos ille u•• Reges de vicisse videa∣tur, Reges vocat, cum tantum Reg••li fuerint, vel melioris no aenobiles. Hence I collect, that these Reguli were a constitution, at least a Custome antiently among the Britains; that Guoronged was a Regulus of Kent; and that Vortiger did probably bestow no more upon Hen∣gist than the said Honour or Command of, (or rather in,) Kent; whether it was under the Title of King, Count, Regulus, or Lieutenant, it doth not much matter; for the Breaches which the Sa••••ons afterwards made up∣on the Britains were such, as gave them liberry to take to themselves what Titles, and what of other mens Titles, it pleased them. Hengist had this Dominion or Province not by Conquest or force, but assigned unto him, by way of remuneration from King Vortiger, for

his good service against the Picts; or else to preserve and engage him to, and in his service; and having no more than the like Authority as Guorongus immediate∣ly before possessed, he could not have any colour or Power by that gift to drive out the Britains from their Possessions; or so much as infringe their Customes; such an Act would much mis-become the interest of Vortiger to suffer, or consent that his people should be delivered up to the spoyl and slavery of the Saxons; his very restauration (I before spake of) is a strong argu∣ment against that opinion; for what protection could the Britains have expected from him, that had (suppo∣sing the Story true) joyned with strangers their Ene∣mies, in the dispossossion & destruction of his own peo∣ple, and Subjects? the same Improbability do I im∣pose upon the alteration of Customes; I might aske ad quem finem? to what end should he alter their Laws and Customs? we must look upon Hengist as an Exile out of his own Countrey; who me-thinks could not but be 'contented, to find himself and his, setled in a way of livelihood in honour and plenty; rather than venture to put all to Hazard by needless conrests: so that I believe Hengist found this custome in dispute a∣mong others used by the antient Britains, and inter∣medled not therewith; and this especially, for that I look upon it as a true and genuine Stemm of the Cu∣stomes and Usages of the Original Planters, remaining here unaltered, through these two grand revolutions of Roman and Saxon Power. But a little more to cleer it; let us consider the State and Condition of this Nation, in their turmoyles with the Saxons; and examine whe∣ther the Britains were totally extirpated from such

places in other parts of this Nation, where they did spread their conquering Armes; I think by comparing the sense of Histories together, it will appear proba∣ble, that where the Saxons are reported to have con∣strained the Britains into the Angles of this Island, the Optimates and military men were they (for the most part) that were so forced, when as the Agricolae and Villani never moved, but as well as they could, and according to opportunities, made the best condi∣tions they could for themselves with the Con∣quering Saxons. So I find in the * 1.31 Cities of Excester and Hereford that the Saxons there first placed in Garrison, were onely the Soulders, who permitted the Britains in qui∣etness to live among them; and so probably, retaining their Lands, to follow their Tillage and Trades, till an ensuing Peace inclined all to settlement; for otherwise it had not been possible for so many Sax∣on Armies as were necessarily to be employed at one and the same time throughout this Island, for the erect∣ing of seven Kingdomes, underseven several Generals or Kings, to have subsisted; had the Countrey Britains, I say, deserted their Ploughs and dwellings, and desist∣ed from their Agriculture; neither could so many Vil∣lages be so well replenished by the Saxons only, in so short a time, had not the Britains made their abode, and stay in rhem, as we may plainly perceive they were, by those antient donations of several of the first Heptar∣chical Kings; in which are recited oftentimes the Bri∣tish

names of the incolae of several Villages: for the ful∣ler understanding whereof, I referr the desirous Reader to the most antient donations to Glastenbury, made pub∣like by the Collections in Monasticon Anglicanum. And I believe my affirmation grounded upon so much pro∣bability, that (notwithstanding the setling of the Eng∣lish Speech so Generally) the greatest part of the Inha∣bitants of England at this day, were it possible exactly to derive their pedegrees from those elder times, would prove to be Britains; take also into this number, such, that by the time the Saxons had made their Conquests here, had from the Romans been made Emeriti; having procured a writ of ease from the Wars, and by this time were ennaturaliz'd Britains: and seldome do we find or hear, that an invading Army did out-number the people of an invaded Countrey; neither is it probable that the Saxons as soon as they had made way, through much opposition, to attain their desires, would turn Husbandmen and Grasiers; considering the Britains never surceased their claimes, nor were weary of infe∣sting them, pertinaciously endeavouring to re-gain their losses. I rather believe they got themselves into possession of those Villages and Towns, that they had thus wrested from the Britains, and such of them as had not Spirits by Armes to defend their Country against them, they kept, to be Instruments of attaining their ends in relation to those necessary ingredients of War, viz. Money and Victuals: And the multitude of words and those of great singificancy which the Saxons bor∣rowed of the Britains, do as so many arguments confirm my thoughts in this point. There was not probably a continuation of the British denomination of Officers and

Offices, * 1.32 without the acceptation of the British prudence in founding of them; from them it is that to this day the Chief Magistrate of a City is called Meyr; not de∣rived from Major, Greater; but from the British word Miret, which is, custodire, to keep and preserve; So Ed∣lin which Mr. Somners expounds to signifie Nobilis, splendidus, inclytus; a word found also in the High and Low Dutch very familiarly, yet Docter Davies tells us whence they borrowed it, and that it is derived from Ed and Llin, which signifies haeres, or linea Regis; and till I occasionally met with it in his laborious Dictionary, I confess my self to have been much troubled, to have found it in the Laws of Howel-Dha; where it may as well signifie all the Kings Children, as one; though e∣ven among the Welsh some Honourable mark was af∣forded to the Eldest, above the rest: perhaps as it is found in the German, it may be a relique of the old Gal∣lick Language. I could tyre the Reader by citing num∣bers of the like; but by these and the like, it seems to me, that the Saxons co-inhabiting with the Britains, did by that means graft a mongrel Speech, entertain∣ing much of a mixture, participating both of the one and the other, British and Saxon; which the Saxons first received, by observation of a conveniency, or at least of finding nothing repugnant to reason in their Customes and usages; for when they first came over, they were Barbarous, whereas they found the Britains civil; they were Heathens, the Britains (mostly) Chri∣stians; So that the Saxons, either out of a desire of qui∣et, or else upon good liking and approbation, did yield to the reception of most of those * 1.33 Laws, they found the British possessed of; and those the Saxon Proceres

or Optimates did confirm, as by the comparing of the Saxon and the British Laws together, I can affirm; yet adding some terms of their own, to cause them to carry a Signification also to their understandings, as well as to the propriety of the British; from this rea∣son it is, that we find most of our antient Law terms to be British, and not (as they are mistaken) to be, Saxon, as Murder, Bastard, &c. In Denominations of places, they intermixed the two Languages; Winfre∣ton (a Village in the County of Hereford) partici∣pates of Winsre, which out of the British turned into Latin, is, Fluxus Vagae, (Vaga is the Latin name of the River Wye,) and Ton, which is purely Saxon, being an addition of theirs, hath no affinity with the British; so it is in Wintreton, or Winterton, which is compoun∣ded of the British Wen-tre, (i. e.) Villa alba, with the addition of the Saxon ton, which is one and the same in signification with the British Tre; so in Winton, the ordinary used name for Winchester, from the British Venta; and by the Roma••s had the addi∣tion of Belgarum, to distinguish it from many other Venta's, Ton being only the Saxon affix to Venta or Went. These are enough to confirm what I have already said in relation to their probability of co∣inhabitation; which being of so great a valew to find proved in relation to our matter in hand, I shall notwithstanding proceed to prove it further by some Authentick records, which have relation thereunto; this may be plainly gathered from the Laws and Constitutions of the Elder Saxon Kings; for Inas in his two and twentieth Law hath this ex∣pression; Wallus censum pendens annuum, &c. and a∣gain,

Wallus virgarum metum duodecim solidis redimito; and Wallus quinque terrae hidas possidens, 600. solid. estimanaus est; this Inas was King of the West-Saxons; and had, as it plainly appears by these Laws, Britains dwelling with his Saxons. I purposely pretermit the 55^th. Law of the said King, and the 32. which is only, de Regis equisone Wallo, and was a concernment only of the King's Posts or Messengers; but there is in the 73^d. Law of the same King, not only a diffe∣rence of Nations, (as in others) but also of Estates and Conditions; for there it is that a note is made of Wallus servilis conditionis, which supposeth there were other Walli, that were of a more free condition; as in the Title of that Law it is manifest, where it is, Be ðon ðe ðeoƿ ƿealH frigne man ofslea, of a servile Welch-man that Kills a Free-man; though in the Body of that Law this Free-man is called an Eng∣lish-man; and in the Title of the 31. Law is this note, Be cirlisces mones land Haefene, which by Mr. Lambard is thus rendered, De pagano fundum possidente, and the Law doth thus begin, Wallus integram terrae hydam si possederit, esto, &c. by which Law it seems that these Walli were the only Pagani; for that the whole Law refers to Wallus: but King Edward the Confessour give•• us a more particular note hereof, wri∣ting what Nations might de jure claim privilege with the Inhabitants of England, and saith, Brytones vero Armorici cum venerint, in regno isto suscipi debent, & in regno protegi, sicut probi cives. De corpore regni hujus exierunt quondam, de Sanguine Brytonum regni hu∣jus, &c. Ita constituit Optimus Ina Rex Anglorum, qui electus fuit in Regem per Angelum, & qui primò obtinuit

Monarchiam totius regni hujus post adventum Anglorum in Britanniam; primus enim fuit Rex coronatus Anglorum (observe this) & Btytonum simul manentium in Bry∣tannia, post adventum Saxonum Germaniae, scilicet post acceptam sidem à Beato Gregorio per Sanctum Augustinum, &c. Et universi Angli qui tunc temporis exiterunt, ux∣ores suas ceperunt de Brytonum genere, & Brytones uxores suas de illustri sanguine & genere Anglorum, hoc est de genere Saxonum. Hoc enim factum fuit per commune consilium & assensum omnium Episcoporum & Principum, Procerum, Comitum, & omnium saptentum seniorum & popuiorum totius regni & per praeceptum Regis Inae prae∣dicti, &c. Et tali modo effecti fuerunt Gens una & po∣polus unus per universum Regnum Brytanniae miseratione divina, &c. Universi praedicti semper postea pro communi utilitate coronae regni insimul & in unum viriliter contra Danos & Norwegienses semper steterunt & atrocissime unanimi voluntate contra inimicos pugnave unt, & bella atrocissima in regno gesserunt; by which it is plain, there was a most antient accord, and an equal respect to the Brytains as well as to the Saxons. So may we see in the Laws of King Aethelstan, where it is provided, that, Si Wallus in eas opes creverit, ut familiam alat, fundum possideat, annuumque Regi Censum pendat, 220. solidis valeto; atque si dimidiatam tantummodo terrae hydam possederit, 80. solidis aestimator: Quin si terram prorsus nullam habuerit, capitis tamen aestimatio (ac biþ freoH, siquidem is fuerit ingenuus, if he be a Free∣man) 70. Solidorum esto. By this we collect the Bri∣tains were not expuls'd; that they did co-inhabit with the Saxons, and maintain'd a right in their possessions; which in like manner I hope to find they did in their

Laws and Customs. I shall make use in the first place of what * 1.34 Mr. Speed delivers out of William of Malmesbury, William Thorn, and the Register of Canter∣bury, (and hath relation to the Kingdome of Kent) concerning Ethelbert the fourth King after Hengist, of whom he useth these words; This Noble King having a care for them that should come after, brought the Laws of his Country, into their own Mother tongue: Observe here, that by this time (from the Saxons first arrival) it is probable the Kentish spake the Saxon tongue; their Language before was British, with the rest of the I∣sland; the Country of King Ethelbert was Kont, and his Mother tongue was Saxon; now Ethelbert finding the Laws of his Country British, the Saxon tongue generally spoke, brought those Laws out of British into Saxon; and this is the naked meaning of it. I find * 1.35 reference in several places of the Saxons Laws, to an Older Book of Laws, as if these were but only Excerp∣tions out of it; as in the fifth Law of King Aethelstan, de irruptione in Templum, it is said, Triplicis Or∣dalii sententia convincatur, is prout in Libro habetur judiciali compenfato; and this in the Saxon is called Dom∣boc, (not of the same nature as the Domesday we have in the Exchequer, of which sort Writers do also mention a former, both of them being only Surveys, or Descriptions of Lands;) but a Book of Judgement, for so doth Doom signifie in the Saxon tongue. The like I find in the fifth Law of

King Edgar, where it is provided, that he that doth not observe the Lord's Day, (funnan dae ges,) poenas in Judiciali libro descriptas pendito; so likewise in the eighth of King Edovards Laws, Si quis, &c. is etiam id compensationis quod in Libro judi∣ciali continetur, praestato; * 1.36 which Book I suppose contained their an∣tient Laws, translated out of the British, though perhaps since the receiving of Christianity, intermingled with much of the Mosaical-Judicial-Laws; introduced both by the Brytains and the Zealous-Primitive-Christian-Saxon Kings; to which Laws, (and perhaps may be the effect thereof) Eleutherius the Pope or Bishop of Rome coun∣selled and referred Lucius the Brytain long time afore this Age we are now writing of. I am not ignorant that they had diversities of Laws, (as they are im∣properly called) viz. Merchenlaege, Westsaxonlaege, and Danelaege, which not at all relate to a different Law, Kind, Custom or Usage, but to several sorts of Amer∣ciaments, Mulcts and Fines, for the transgression of one and the same Law; I say this was generally so; and so is it to be understood in the second of King Alured's Laws, in the case of such as violate Sanctuary; and is this, Mulcta, vel ipsa capitis aestimatione, prout ejus gentis feret consuetudo, &c. This difference of Fines and Pecuniary impositions I find frequently, but very little besides; which is also all the impression that I can perceive the rude Danes made upon the English in relation to their Laws; for during their times, Ed∣ward the Confessour looks not at all upon the Laws as altered, but saith, they were asleep for above three∣score

years; as in a Discourse concerning them he hath it: and magnifies them so highly, that in his Re∣storation of them, he would have them thought to be very Antient, though he reports them made by his Frand-father * 1.37 Edgar, by which he labours to put a repute upon them; for Edgar was a Wife and Prudent Prince, and did urgently press the Execution of them; so that King Edward ascribes them unto him, as these very Laws after the Norman Conquest were called the Laws of Holy King Edward; and are the same that the Saxon Kings before Edgar, did use: not∣withstanding all which, when he comes to the Cor∣roboration of the Privileges and Immunities of the Antient City of London, as to their Hus••••ings and other Courts, he declares the Antiquity of them to be far greater than the Reign of King Edgar; and (I be∣lieve) are co-etanious with the antient British Laws; (if we should grant and allow the same Antiquity to Towns and Cities, with the first planting of the Isle) he saith, Debet etiam in London quae est caput Regni & Legum, semper curia Domini Regia singulis septimanis die Lunae Hustengis sedere & 〈◊〉〈◊〉. ••••nd at a enim erat olim & aedisicata ad instar & ad ••••••dum & in memoriom ve∣teris Magnae Trojae; & ufque in bodiernum diem leges & jura & dignitates, libertates, regiasque consuetudines untiquae magnae Trojae in se continet, — & consuetu∣dines suas una semper inviolabilitate co••servat. Here I shall observe, that as well as London enjoyed her Pri∣vileges

and Immunities, not at all infringed, from so great Antiquity, notwithstanding the several revolu∣tions under the Dominions of the Romans, Saxons, and Danes; other places of the same Island might also probably enjoy the same favour, and hold their Cu∣stoms, Laws, and Tenures from as great Antiquity; but I have done with this revolution; let us now enquire what probability we have to believe that

CHAP. IV.

William the Conquerour altered not, but confirmed, the Saxon Laws. The antiquity and different use of Juries. English claim and recover their Lands by Law against the Normans. Of our common Laws, our Customs, Forfeitures, Sealing, Coverfeu, Exchequer, Fashions, Language, Writing, manner of Fights, Fortifications and Buildings.

HAving passed through these mists and clouds of Elder Times, let us now come to see what loss or alteration, in relation to our Laws and Customs, we received by the * 1.38 Norman Con∣quest, concerning which also, we have so great a plenty of Writers, that they almost extinguish the Truth with their Comments and Conceits; all the alterations ima∣ginable are father'd upon this revo∣lution, and summ'd up by Mr. Sa∣muel Daniel in these words: I come

to write of a time, (meaning this Norman affair) wherein the State of England received an alteration of Laws, Customs, Fashions, manner of Living, Language, Writing, with new forms of Fights, Fortifications, Buildings, and generally an innova∣tion in most things but Religion. I make choice of this Paragraph of so Elegant an Author (as Mr. Da∣niel, who hath deserved very well from the Common-wealth of Learn∣ing, for his ingenuous Observati∣ons) to examine the particulars of this great mutation, so generally imagined; which enumeration will also afford us the method of our Discourse, concerning that which hapned to the English at that time: and first of all, concerning the Alteration of our Laws, which is the principal matter of our enquiry; of which, among many Mr. Camden himself hath thus written; Victor Gulielmus in victoriae quasi Trophaeum, antiquatis pro maximâ parte Anglorum legibus, Normanniae consue∣tudines induxit, causasque Gallicè disceptari jussit; Yet presently adds, propositis igitur legibus Anglicanis; Merchenlage, Danelage, & Westsaxenlage; quasdam reprobavit, quasdam autem approbans; transmarinas Neustriae leges quae ad Regni pacem tuendam efficacissimae videbantur, adjecit. But to evince this, let us have re∣course as near as we can, to the Authors that were of that Age, and seriously weigh what they deliver unto

us concerning this matter. Mr. Selden our of the Litchfield Chronicle, cited also by my very much Ho∣noured friend, and incourager, Sir Roger Twysden, introduceth these words: Anno Gulielmus Regni sui Quarto apud Londonias consilio Baronum suorum fecit sum∣moniri per universos Angliae comitatus, omnes nobiles, sapientes, & sua lege eruditos, ut eorum leges & consue∣tudines audiret. Et licet idem Rex Willielmus leges Northfolktae & Suffolkiae, Grantbrigiae & Deirae (ubi quondam maxima pars Danorum & Norwegiensium in∣habitabant) prius magis approbaverat, & eas per totum Regnum observari praeceperat, pro eo quod omnes Ante∣cessores ej••s, & fere omnes Barones Normanniae, Norwe∣genses extitissent, & quod de Norwegia olim venissent; Sed postea ad preces communitatis Anglorum, Rex adqui∣evit, qui deprecati sunt, quatenus permitteret sibi leges proprias, & consuetudines antiquas habere, in quibus vixerant patres eorum, & ipsi in eis nati & nutriti sunt, scilicet, leges Sancti Regis Edwardi, & ex illo die magna authoritate veneratae, & per universum Regnum corrobo∣ratae & conservatae sunt, praecaeteris Regni legibus, leges Regis Edwardi. Unde per praeceptum Regis Willielmi electi sunt de singulis totius Angliae Comitatibus Duodecim Viri sapientiores, quibus jurejurando injunctum fuit coram Rege Willielmo, ut quoad possent, recto tramite neque ad Dexteram neque ad Sinistram declinantes, legum suarum & consuetu inum sancita patefacerent; nil praetermit∣tentes, nil addentes, nil praevaricando mutantes. Alde∣redus autem Eboracensis Episcopus, & Hugo Londoniensis Episcopus per praeceptum Regis, scripserunt propriis mani∣bus, omnia quae praedicti jurati dixerunt, &c. Ingulphus Crolandensis also, who was Chaplain to this King Wil∣liam,

and being himself somewhat concerned in this affair, and so the more to be believed (as an Agent) writes a little more plainly than the last did, thus; Attuli (saith he) eadem vice mecum Lundoniis in meum Monasterium leges aequissimi Regis Ewardi, quas Domi∣nus meus inclytus Rex Willielmus autenticas esse, & per∣petuas per totum Regnum Angliae, inviolabilitérque te∣nendas sub poenis gravissimis proclamarat, & suis justi∣ciariis commendârat eodem idiomate quo editae sunt, ne per ignorantiam contingat nos vel nostros aliquando, in no∣strum grave periculum contraire & offendere ausu teme∣rario Regiam Majestatem, ac in ejus censuras rigidissimas improvidum pedem ferre, contentas saepius in eisdem, hoc modo; and the Title of those Laws is this; Ces sont les leis & les Custumes que li Reis William grantut à tut le peuple de Engleterre; apres le Conquest de la Terre. Iceles meismes, que le Reis Edward sun Cosin tint devant lui; which is in English; these are the Laws and Cu∣stoms which King William granted to all the people of England, after the Conquest of the Land; and are the same which King Edward his Cousin did hold before him: And the like account given by the Litchfield Chronicle, is found in the Laws of King Edward; which, though from him receiving the Denomination, yet probably were Transcripts of a Date (since the Norman Conquest) for that in them is found an express of the Norman Settlement of them: in which is also an account of the difference of the Rate of Mulc••s, be∣twixt the Saxons and Danis, or Norwegians; and be∣cause of the ••••ar relation the Normans had to the Danes, it is said, that King William made choice of those Laws, and would have had them put in Execu∣tion

as the Law of England; Quippe cum aliarum legi∣bus Nationum, Brytonum scilicet, Anglorum, Pictorum & Scotorum praeponderassent: he praised and liked of this Dane-laege best; (onely this observe (if it be worth ta∣king notice of) that not onely the British Laws come into the account, but also they are set in the first place.) But King Williams desigment had this Effect and Issue, for taking that resolution, it is said: Quo audito, mox universi compatriotae regni qui leges edixerant, tristes effecti, unanimiter deprecati sunt, quatenus permitteret si∣bi leges proprias & consuetudines antiquas habere in qui∣bus vix runt patres eorum, & ipsi in eis nati & nutriti sunt, quia durum valde foret sibi suscipere leges ignotas, & judicari de eis quas nesci••bant. Rege vero ad flecten∣dum ingrato existente tandem eum prosecuti sunt deprecan∣tes, quatenus per animam Regis Edwardi, qui sibi post diem suum concesserat coronam & regnum & cujus erant leges; nec aliorum extraneorum exaudiendo, concederet eis sub legibus perseverare paternis. Unde consilio habito, precatu Baronum, tandem acquievit. Thomas vero Ar∣chiepiscopus Cantuariensis & Mauritius Episcopus scripse∣runt propriis manibus omnia ista praedicta per praeceptum praedicti Regis Wilhelmi. Ex illo igitur Die multa Autorita∣te veneratae, & per universum regnum corroboratae & obser∣vatae sunt prae caeteris patriae legibus leges Edwardi Regis Sancti, &c. Though the King at this time was so unwil∣lingly moved to the requests of the English; yet we find that afterwards he laboured all he could to ingratiate himself with them, as standing in fear of them. For in the third year of his Reign, Edgar out of Scotland, and the Earls Edwin and Morchar, with assistance from Den∣mark, gathered into a body in the North, and were there

defeated; whereupon saith M^r. Daniel the most of these Lords presently after came in upon publick faith given them, and were conducted to Berkhamsted by the Abbot Frederick, who upon their submission, and oath of Allegiance re-taken, had their pardon and restituti∣on to grace, granted by the King, believing it his own concern so much, to quiet them, that he again took his personal oath, before the Archbishop Lanfranc and the Lords, To observe the ANTIENT LAWS of the Realm, established by his noble predecess••rs the Kings of England; and especially those of Edward the Confessor. Thus we plainly see the Laws that were continued and confirmed, were the old Saxon Laws, as we have it in this decree of William the Conqueror, * 1.39 Hoc quoque Praecipio, ut omnes habeant & teneant legem Regis Edwardi in omnibus rebus, adauctis his quae con∣stituimus ad utilitatem Anglorum. And his Son, Henry the first, took the very same course; for amongst his de∣crees it is, that, Murdra etiam retro ab illo die quo in Regem coronatus fui omnia condono, & ea quae à modo facta fuerint justè emendentur secundùm lagam Regis Edwardi, and presently after he saith, lagam Regis Edwardi vobis reddo, cum illis emendationibus quibus eam pater meus emendavit consilio Baronum suorum. But let us descend to particulars, and view from whence we had our Juryes, the great pillar of our Laws, and the Bulwark of our freedomes, (certainly upon a great mi∣stake, said to be brought in by the Norman Conqueror) concerning which M^r. Campden writing against Poly∣dore Virgil, (who it seems was of that opinion also) hath it thus: Nihil à vero altenius, multis enim ante an∣nis

in usu faisse certissimum est; of so general a concern∣ment also was this way of Judg∣ment, * 1.40 that in the 31. cap. of the Laws of Hen. 1. it is decreed, Unusquis∣que per pares suos judicandus est & ejusdem Provinciae. This is the Judgement by our * 1.41 Peers by which we stand and fall, and is our English Peculiar: for in Normandy the Civil Law is their known and used Law; and I believe you will hardly find that that Law takes any Cognisance of Juries; whose number were not in all ages fixed or certain; but va∣ried into several numbers according to what you shall find cited in se∣veral Reigns. They were for ma∣ny Centuries together (as at this time) at 24. of which 12. to be present; and this in the Saxan Laws hath several appel∣lations: But to ascend with these Juries up to anti∣quity, we will begin with Hen. 1. and with what he decrees in the 66. Chap. of his Laws. Si quis Dei recti∣tudines per vim deforciat, emendet LAHSLIHT, cum Dacis, plenam Wytam cum Anglis, vel ita neget,

assumat undecim, & idem sit duodecimus, and so pre∣sently after concerning Burchot, vel Brigbot, he saith, In Denelaga, sicut stetit antea, vel ita se allegiet, nominen∣tur ei XIIII & adquirat ex eis undecim. In his vero secundum legem nominati, consacramentales vicini babendi sunt, quia solus non potuit, &c. and in Cap. LXXIV. concerning a Thief slain, it is said: juret quod in cognato suo, nullum factum erat, pro quo de vitâ fortisfactus esset, & eant alii cum duodecim, & superjurent ei in mun∣ditiam, quae ante dicetur; so in the Laws of William the Conqueror, at Numb. 16. Siquis alterum appellet de latro∣cinio, & is sit liber homo, & habeat —testimonium a 1.42 de legalitate, purget se per plenum Sacramentum, & alter qui infamis ante fuerat, per serment nomed, videlicet XIV. a 1.43 homines legales, per non si is habere eos poterit, purget se duodecima manu, &c. so in the next number, against those that break a Church, or, a Dwelling-house it is said, se purget per XLII. a 1.44 legales homines nomes se duodeci∣ma manu, &c. so it is decreed for a pledge of any Thief that is fled or escaped, Plegius ejus habebit IV. menses & unum diem ad eum quaerendum, & si possit eum invenire, juret se duodecima manu, &c; but this all looks on this side the Norman Conquest; let us therefore pass be∣yond it, lest any should be so inconsiderate as to think these cited Laws were not the Laws of the Saxons be∣fore the Conquest; and in the XXXVIII. Law of King Edward we find this; concerning a person accused;

Si testarentur hominem, de bona vita, & ² legalitate, pur∣garet se judicio comitatus, &c. and in the dayes of King Ethelred, who was much infested with the Danes; he took order for the like sort of Tryal; which was then one of the sorts of (and was called also) Purgation; where one that was accused was to take this course; adjunctis sibi Thanis quinque omnem criminis suspitionem diluito; and presently after, in the same manner and almost in the same words it is repeated, ascitis sibi Thanis quin∣que crimeneluito, &c. In the Laws of King Ina, it is pro∣vided, That there should be such a quantity of Land, containing a certain number of Hydes, requisite for the judging of some men for mis-demeanour; as in the XLVII. Law. Si cui objiciatur furto surripuisse rem aliquam, vel furtim subductam admisisse, is pro ratione LX. hydarum se culpa liberato, si modo dignus qui juret habetur. Anglus furti postulatus, duplici se purget nu∣mero, Wallus majore juratorum numero non obstringatur. Here you see the two last refert to the first; and both to the number of Jurates: which what they were, was to them so well known, that they thought it needless to set it down any otherwayes than by the number of Hydes; which form occurrs frequently up and down in those Laws; but in the XIX, of the said King Jna's Laws, I find somewhat that gives an explanation to the former recited Law, where it is said: Regii villici jusjurandum (if he be a Master of a Family, or a House-keeper) ejus est momenti ac ponderis ut cum LX. Terrae hydis exequari intelligatur; in the same manner was it among the Welsh; where they were to the number of XLII. as in several of the Laws of Howel-Dha; and in the Epitome of the Customes of Arcenefeld in Domesday is to be seen; which

I shall for brevity sake omit. Again the very Fabrick and make of all our Laws, as now at present, is not at all different from the antient way of contexture of them among the Saxons; in their * 1.45 Mickel-gemote and their Wittan-gemote, both these together having received the Norman denomination of Parliament; although the thing is one and the same. But that which is of grea∣test perswasion and force with me, is, that they had in the time of the Norman Conquest, (contrary to the com∣mon received opinion) the same way of making Claim for Lands and Titles as before; which the word Calum∣niare doth signifie, and which * 1.46 S^r. Edward Coke saith, was a word common to both; if it proves so, then proba∣bly used by the Saxons before the Conquest. The contro∣versie between Warren the Norman, and Sherburn of Sherburn in the County of Norfolke (Illustrated by M^r. Campden) shews that all things in that age did not pass solely according to his will; for notwithstanding the Castle of Sherburn was given by the Conqueror to Warren (his great favourite) yet upon the allegation of Sherburn, that he did never bear Armes against him, but was his Subject as well as the other, and held his Lands by that Law that the King had established a∣mongst all his Subjects, The King gave judgement a∣gainst Warren, and commanded that Sherburn should hold his Lands in Peace. This is cited as almost the only Act of favour the Conqueror did; whereas it is mistaken, for it was an Act of justice; and such Cases do frequent∣ly appear in that Record called Domesday, where I finde among others, this concerning the Mannour of Cerdeford in Hantescire held by Hugo de Port.

In isto Manerio tenet Picot 11. V^s. & dimid. de Rege. Phitelet tenuit in alodium de Rege Edwardo pro Mannerio. Istam terram ca∣lumniatur VVillielmus de Chernet, dicens pertinere ad Mannerium de Cerdisord feu∣dum Hugonis de Port per hereditatem sui Antecessoris; & de hoc suum testimonium adduxit de melioribus & antiquis homini∣bus totius Comitatus & Hundredi, & Picot contraduxit suum testimonium de villanis & vili plebe, & de prepositis qui volunt de∣fendere per Sacramentum aut per Dei Judi∣cium, quod ille qui tenuit terram liber homo fuit, * 1.47 & potuit ire cum terra sua quo voluit. Sed Testes Willi∣elmi nolunt accipere legem nisi Regis Edwardi, usque dum definiatur per Re∣gem, &c. Hugo de Port

having the Mannour of Cerdiford from his Ancestors; William de Chernet makes claim in his behalf against Pi∣cot who held some part of it, and makes proof of it by the testimony of the chiefest and best of the Country, and also of the most antient of all that Hundred. Picot de∣fendant, produceth the testimony of the villagers, and men of no account, and Reeves or Bayliffs, who offer their oaths, or the ordinary wayes of purgation, (which was their Ordeales) that he that held that Land was a Free man, et potuit cum terra sua ire quo voluit; that is, as not dependant of that Mannour, nor of the customes there∣of, might dispose of his Land as to him seemed best; but the witnesses of de Chernet would not accept of the Tryal by any Law, but that of King Edward, till such time as the King had judged it; this you must under∣stand was about the eighteenth year of the King, the Eng∣lish still insisting upon the Laws of King Edward; which in case they had been repealed, it had been a great va∣nity to have insisted upon them; observe further, that Picot intitles the King to it, though the proof was de vili plebe, of the scum of the people; but that you may more plainly see, what was the occasion and ground of forfeiture of Lands in those dayes, and what course was taken for claims thereupon, I will exhibit another out of the same Domesday in the same County, where under the Title of Terra Tainorum Regis it is Recorded that

Alwi filius Turber tenet de Rege Tederlec, tres liberi homines tenuerunt in Alodium de Rege Edwardo. Dicunt homines de Hun∣dredo, quod nunquam viderunt sigillum vel legatum Regis qui saississet Alwinum ante∣cessorem ejus, qui modo tenet de isto Mane∣rio, & nisi Rex testificetur, nichil habet ibi: duo ex his qui tenuerunt occisi fuerant in Bello de Hastings. The inquiry then made, for to cause the forfeiture, was this; whether the Land did be∣long to any one that was in the battel of Hastings, and there did take part with Harold, against King William; which is the same that Sherborn pleaded for himself a∣gainst the Kings gift of his Land to Warren, that he did never bear Arms against the King. But in Berroc∣shire in the same Record under the Title of Terra Regis it is, that: Pandeborne jacuit in firma T.R.E. & post tenuit Aluuoldus Camerarius; sed Hundr. nescit quomodo habuit. Frogerius postea misit in firma Regis absque placito & lege; by which we may gather, that notwithstanding the entituling the King to the Land, yet the Candor and Integrity of the Surveyors at that time was such, that they return it to be put under the Kings Rent abs∣que placito & lege, without either hearing or Law; that is unjustly; for placita & leges at that time were as much observed to evince the right of possession as possibly could be expected. But to come to that common objection,

that our Laws are delivered to us in the French-tongue, I shall not take much pains to confute it; for that it is evident, our antient Laws, I mean the Common Laws of the Land, are neither written or Printed either in French, English, or Latine, or any other Language that ever I could hear of, but still remain like that which Caesar reports of the Learning of the Druids (who were our antient judges of the Law) not committed to Parch∣ment or Paper, and may (for ought I can perceive) have that manner and Custome continued and retained from the Ages of the Druids. Certain reports upon Cases of Law by several excellent Lawyers in our law French are rendred to us: but we may as well say the Comment is the Text, as imagine those studious illustrations to be the Law; and some there are that (probably) believe because our Common-Laws were never reduced into a form or Body so as to receive a rendition in that or any other Language, that the Kings in those first Norman times might undestand them, who in their persons did publickly preside, heard Causes and gave Judgement, that therefore those Cases and Pleadings in French were preserved; which Cases gave only the reason of the Justice of the Law as to the diversity of concernments of the Subject; and upon this it is, that M^r. Campden giving the reason that one of our Courts is called the Kings-bench (Bancus Regius) sic dictus (saith he) quod in eo Reges ipsi praesidere soliti, &c. Judices sunt praeter Regem ipsum cum interesse voluerit, Capitalis Angliae Justiciarius & alii quatuor; and in likelihood the King in person sitting there, gave the occasion in those times of the pleadings in French, which otherwise could not have been understood by those first Norman Kings that

did not understand English; they addicting themselves in Letters, in Discourses, in Messages and in all things to the French Tongue. I proceed now to the second par∣ticular which is looked upon to receive so great an al∣teration, and that is our antient Customes; though much upon this point comprehensively in the former discourse of our Laws hath been said; where the Custome was antiently to claim Lands by the Country; it conti∣nued so at this time of the Conquest, as we see in many places of Domesdey-book, where it is said: Scira dicit, Comitatus dicit, Hundred: dicit, &c. as in the Saxon Laws all was brought to the Hun∣dreds and Shires, so in the 34. Law of King Edward there it is of a ðrihinga, which is the circuits of three or four Hundreds in a County, et quod autem in ðrihinge de∣finirinon poterat, ferebatur in Scyram, what could not be judged in the Hundred, was brought to the Shire, where at a certain place were kept the Pleas of the County, and where were to be present, (take them as I find them recorded) Episcopi, Comites, Vicedomini, Vicarii, Centenarii, Aldermanni, Praefecti, Praepositi, Ba∣rones, Vavasores, Tungrevii et caeteri terrarum Domini, diligenter intendentes, &c. So in the Laws of King Ed∣gar, every year let there be said he tƿa scirgemot; & ðaer beo on ðaer sciregemote bisceoƿ, & se ealdorman. & þaer aegþer taecan ge Godes riHte. ge ƿeoruld riHte (i.e.) at the Shire-gemote let the Bishop and Aldermen be; and there either of them teach Gods right and the Worlds right; which judgement of the Vicenage and power of the County, was equally used both in the time of Saxon and Norman Governments. And so small was the alteration that hapned at this time, that in this often

cited Survey Record there among many other of the like nature is this concern of the Burrough of Wallingford in Berrochescire which concludes thus. Modo sunt in ipso Burgo consuetudines omnes ut ante fuerant; and so where it Records the Customes of Urchenfield, it saith: Hae consuetudines erant VVallensium T.R.E. id est Tempore Regis Edwardi; for the men of Urchenfield in antient Re∣cords are called Welsh; as this Region is called Wales; for in the book of Knights-fees in the Exchequer it is writ∣ten, Arcenefeld in Wales respondere tenetur Daō Regi, &c. Should I make a parallel of Customes as well as Laws us'd in the times of the Saxons and Normans you would find them all one; and both compared with the Laws of Howel-dha to prove the same mostly with them also. The pepe in the Saxon Laws is rendred aestimatio capitis, and those provided, that in case upon an offence it could not be paid neither by the Criminal nor his Kin∣dred; then was he to undergo a service for it; somewhat of this nature was in the Norman times, for among the Customes of LEWES in Domesdey-book, I find that, Adulterium vel raptum faciens, viii. Solid. & iv. Den. emendat homo, & faemina tan∣tundem. Rex habet hominem Adulterum; Archiepiscopus faeminam. This is there set down as an antient Custome belonging to that Town in the time of the Saxons, but in the time of Hen. 1. in the 11. cap. of his Laws it is thus upon a general account set down: Qui uxoratus faciet Adulterium, ha∣beat

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Rex ejus vel Dominus (I believe ejus should be set after Dominus) superiorem, Episcopus in∣feriorem; and these ƿere's are sound corroborated by that Name in the Laws of Hen. 1. But in short you will find by this Domesdey-book that in most places of England it is certified they had those very Customes in the Norman Government which they had in the time of Edward the Confessour: I know there be many jocular tenures: but whether all of them that occurr were in∣vented or imposed by the Normans, it matters not much, because they did not interfere upon propri∣ety, nor injure their other Customes. One Custome re∣ported to be brought in, was the * 1.48 Sealing of Charters; but as I have seen a Charter Sealed before the Conquest; so since the Conquest I have seen Charters Signed after the Sax∣on mode, both by William the first, and his Son Henry, that is to say, with a great number of Witnesses and Crosses before their Names. Edward the Confessour made a Grant of some Privileges to the Church of Hereford, and firmed it with a Seal, which in one of their Register books, is described to be preserved in Panno serico, and a memo∣randum also of the circumscription of the said Seal to be this: Hoc est Sigillum Regis Edwardi; and in very many places of Domesdey-book it is Recorded, that Lands did pass to several people under the Seal of King Edward, as in Berckshire under the Title of Terra Ecclesie Aben∣doniensis;

it is specified, that, Anscil tenet Sper∣fold de Abbate. Edric Tenuit in Alodio de Rege Edwardo & potuit ire quo voluit, &c. de hoc Manerio Scira attestatur, quod Edricus qui eum tenebat, deliberavit illum filio suo qui erat in Abendone Monachus; ut ad firmam illud teneret: & sibi donec vi∣veret necessaria vitae inde donaret: post mortem vero ejus; Manerium haberet; & ideo nesciunt homines de Scira quod Ab∣batie pertineat; neque enim inde viderunt brevem Regis vel Sigillum. Abbas vero te∣statur quod in T. R. E. misit ille Manerium ad Ecclesiam unde erat & inde habet Bre∣vem & Sigillum Regis Edwardi attestanti∣bus omnibus Monachis suis; and in that County under the Title of Terra Henrici de Ferieres, is, that Ollavintone: Godricus Vice-comes tenuit de Rege Eduuardo; Hanc Terram dedit Rex Eduuardus de sua firma Godrico; & inde vi∣derunt sigillum ejus homines de Comitatu; praeter istas hidas accepit ipse Godricus de firma Regis unam v. terre, de qua non vide∣runt Sigillum Regis. You see by these that this Sealing was looked upon, in the Saxon times, as of great strength and efficacy to their validating of Deeds and

conveyances. I can willingly grant that the Coverfeu-Bell (continued in use till our dayes) was an Intro∣duction of the Norman Conqueror; and in that there was much Reason and Policy; for no doubt but that in some places and Countrys, the Norman Souldiers were enforced to lodge dispersedly, and so it would be fit and convenient that the Countrey should observe, that time∣ly Decorum and Order, not onely beneficial to them∣selves, but also to those enquartered, whose Guards would be the more difintangled, the more they had of freedome from the company and walks of the Countrey people; and as the Ringing of the Bell was then; so to the same end at this day the Taptoo is used in Garrisons and Quarters by the beat of the Drumm. What the induce∣ment to the observation of the Coverfeu might be I know not; perhaps it might be, the Knowledge of that entertainment which the English bestowed upon the Danes on S^t. Brices Evening; and at this time of the Conquest there were (in probability) many living that were not only eye-witnesses, but also Actors in that Tra∣gedy. Another innovation received at this time accor∣ding to the account of some, was the settlement of the Court of Exchequer; of which Campden out of Gervasius Tilburiensis thus writes: that ab ipsa Regni conquisitione per Regem Gulielmum facta, haec curia caepisse dicitur; sumpta tamen ejus ratione a Scaccario transmarino; which are all the innovations that I at present can remember that are imaginable to be introduced at this juncture: which if more, were not considerable enough for to be a ground of so much exclamation. I proceed to the third Particular said at that time to be much altered; and that is, our fashions; of which I cannot say much;

and less, if I were to speak of our Fashions now a days, considering how much we are become the French∣mens Apes; but yet I know not whether a serious observer can find by any probable Record, or by the observation of antient Monuments, any such Alteration of Fashion as is here affirmed; the same manner and form, described to be then in use, continued many years after, if any thing may be Collected from those Habits expressed in the Monumental Effigies of several Persons of those Ages. Another Alteration said to have hapned is of our Language, concerning which Mr. Daniel hath (not without need) made a Retractation, and saith, that the Body of our Language remained in the Saxon; yet it came so altered in the habit of the French tongue, as now we hardly know it, in the antient form it had; and not so much as the Character wherein it was Written, but was altered to that of the Roman and French, now used: I know not what Habit he means, but this I can affirm, that our Language hath in it little of the French from the Norman Conquest; but continued as the Normans found it, abating only such changes and refinements as Languages receive in the like space of time; there being not to be found so much in the English, as the very French it self, from its self, without any such violent Impression, as this Conquest may seem to inforce: And I would de∣sire of any one that hath observed the Gradual decay of our Primitive English; or Saxon, what re∣markable difference in any thing considerable there is to be found, betwixt that of Edward the Confessour's time, and that in which Chaucer wrote•• as also how at this day the Saxon Idiom is yet retained among the

Commonalty in many Counties of England; understand it more especially to have relation to such places that are most Northern and further distant from London, (a City of great Forein commerce, and the usual resi∣dence of the English Court for many hundred years) for it is plain to me, that the present Scotish hath very little receded or altered from the English or Saxon antiently used; and by comparing of the Writers of several Centuries together, the refining of the English tongue hath not been considerable from Age to Age, till within these last Hundred years: so that at this in∣stant, I cannot perceive into what habit of the French tongue it is altered; nevertheless I am not ignorant, how that in those first Norman times, there wanted not those of the English, who by their Adulation and Sycophantizing, earnestly laboured to get themselves into some repute; of whom that Age took so great notice, that in great scorn they reproved and reflected upon them, by that common Ironical proverb; Jack would be a Gentleman, could he but speak French; and as for the Characters said to be changed, I have seen Char∣ters of Saxon firmed both by William the Conquerour, and after his Reign by his Son Henry, surnamed Beauclerk, all wrote in the Saxon Letter; that Chara∣cter being yet retained in all such Escripts that con∣cern our Laws, and is called by the Denomination of Court-hand: And again, in some very antient Trans∣cripts and Sermons of Saxon, written before the Conquest in their own Characters; the Latin therein cited did relinquish the Saxon Letters, and did espouse the old Roman Characters: I urge this the rather, to shew that these alterations are not properly to be fixed, as an

effect of the Norman Conquest; and that Writers running much upon Hyperbolical expressions, have laid more upon this revolution than it was truly Guilty of. To what Mr. Daniel writes, that by this Conquest we received new forms of Fights, Fortifications, Build∣ings; and concludes, generally an Innovation in most things but Religion: for this last particle that is of so great extent, I have said enough already to shew my diffent, to his opinion; and it being so large in the affirmative, I dare not enter into the discourse of it, for dolus latet in universalibus, and it would take up too much time; but to return to these three first particulars now ennumerated, I say, that probably in them there might be some alteration; for I would not be thought so opiniative, to believe the English were so tenacious of their own Forms and Modes, as not to relinquish them for better, they took up afterwards new forms of Fight, and came not short of the Normans, either in Valour or Renown in the use thereof; but to the diffe∣rence betwixt the forms used by the Normans and Sax∣ons, I leave the Reader to the Description of that most remarkable Battel betwixt William the Conquerour, and Earl Harold, as it is set down by many Historians, by which it will appear that there was much difference in the Management and Use of Offensitive Arms; But the English presently by their industry in the practique part of Arms came to be not only famous, but also terri∣ble to their Neighbours, by their Dexterity and Va∣lour. Neither will I dispute their Fortifications, yet the Romans left the Brytains excellent Notions thereof; which afterwards came into the possession of the English, and were not at all short of any the Normans

could pretend to be Authors of, considering the Dis∣cipline and Arms of antient times: yet true it is, that the English at this time were by case and softness al∣most reduced to that Effeminateness, (notwithstanding their Danish turmoils) that like as the Britains made use of them and their Ancestors against the Picts; so now these Saxons make use of the Normans against the Britains, for the preservation of their Welsh Borders; of whom a considerable party lay in Garrison in Here∣ford, and were, after William the Conquerour had been here above a year, hard put to it, under the Government of Scrâp, as he is named in Domesdey, by Edricus Sil∣vaticus, (or Salvage) Lord of Wigmore; who at last was taken by Radulfe de Mortuomari, his Lands being by the King for this great Service bestowed upon the said Radulfe; these Normans which I suppose were in∣troduced by Edward the Confessour, the Conquerour took care of in a Provisional Law, which carries this Title before it: De jure Normannorum, qui ante adven∣tum Guilielmi, Cives fuerant Anglicani; where in the Body thereof it is, that Omnis Francigena qui tempore Edwardi propinqui nostri fuit in Anglia particeps consue∣tudinum Anglorum, quod ipsi dicunt Anhlote & An∣scote, (i.e. Scot and Lot as we call it) persolvat: secun∣dùm legem Anglorum; but this was not altogether so strange, if we consider the Warlike disposition of the Normans in that Age, in continual Turmoils with the French, and the relation King Edward had to Normandy. Their Fortifications were not of any great Variety; * 1.49 some were of a round Building of Stone, for the most part Built upon a round pile

of Earth, either Natural, but most commonly Cast up by man's Indu∣stry; others upon a small rising, or a plain Ground, seldome more Capacious than to receive about twenty or thirty Men, and were made rather to preserve the Persons and Goods of the Owners and his Servants and Tenants, than to endure a long Siege: of which sort there are many in Ireland, because of their Antient intestine feuds; but more upon the English and Scotish Borders; many of which I have seen; but with this difference, as I said before, that those the English did antiently Build were round, and these for the most part square, with one round Tower at one of the Angles, both sorts of which were antiently called Fortalices, and seldome made use of for Habitation; because I find their mean dwelling Houses were made commonly under it, or very near adjoyning to it: And I discern a difference made be∣twixt those for Habitation, and those I spake of that were only for a Safe-guard against sudden Inroads and Incursions; for in Domesdey Book, in the Survey of Erdisley in Herefordshire, it is there recorded, that, ibi est domus defensabilis, that is to say, there is a dwelling House fortified, (which is now called the Castle of Erdisley) and was Builded because of its Vicinity to the Welsh Borders, and was intended by that Denomi∣nation to signifie more than one of those small Casties or Fortalices I lately spoke of; these were the Strengths and Fortifications of those times, most frequently in use. I come lastly to speak of their Buildings, in which there was something of an advantagious, or at least

an honourable change, by the difference that was in the Mode of them: I must confess the Norman manner was very noble and magnificent, which by their Chur∣ches may be observed; for the Saxons made theirs with Descents into them, the Normans with Ascents; the first made their Lights small and mean, the second made them high and large; these made their Arches stately with heights proportionable, the others had their Arches and Coverings low, and made their Walls of so great a thickness, that they were a great Dammage and Impediment to the pleasure of their Lights; when the Normans made use of no greater thickness or breadth in their Walls, than would but well serve to bear their Height and Covering. In the antient form of the Saxons before mentioned, I have observed several Churches and pieces of other Architecture; their en∣trances (especially in their West-ends) by Descents inwardly, with Arches formed to correspond with those gradual Declensions and Steps, all which shortning towards the greatest Door at the bottom of the Stairs; over which for the most part was a finishing of a Semi∣circular piece of Gothick work, and together made a kind of an artificial Perspective. I have hitherto endea∣voured in this tract to make it appear, that for the space of 1700. years past, we received no conside∣rable Mutations or Alterations in our Laws and Customs. That this our Tenure, the subject of our present Dis∣course, hath had the fortune to continue here, from our British aborigines, (the first Planters of our Isle) through those several changes and revolutions of Af∣fairs and Governments that have hapned to it since that time; and although in this Discourse preceding,

I may be thought to have walked a little beside the path, yet I am perswaded I have not missed the way, but kept and preserv'd the Goal in my eye. Those alterations that are now found as to the general usage of this Tenure, (which was the Super-eminent custom of this Nation) proceed not at all from any Enforce∣ment or Coercion by reason of any of these fore∣mentioned Intrusions or Conquests, but clearly by the consent and desire of the Proprietors and Persons therein concerned: for in the County of Kent, where Mr. S. saith, this Tenure did generally over-spread; there (I say) in the time of Hen. 8. several Lord∣ships were discharged of this Tenure by Act of Parlia∣ment. I have not all this while pleaded for the settle∣ment or goodness of the Tenure, to be used in this Age, where Lands are well Peopled and fully Inhabited, for it would be the destruction both of Lands and Linage; but my business hath been to enquire into the state of the question, the true Original, Etymology, and Use thereof. The people of England by degrees have in∣extricated themselves from much servitude in their Customs, and are now instated into a great privilege of Liberty, and more particularly from those heavy pressures of Villenage; the Slavery of which Custom hath received its Deaths wound, in favorem libertatis, for Sir Edward Coke out of Fortescue hath this note, Impius & Crudelis judicandus qui libertati non favet; and gives this as the reason of it, Angliae jura in omni casu dant favorem libertati; the sense of Liberty was of so great force and power, and the favour due unto it, according to Law and Right of so great respect, that those and the like pressures have received change and

alteration, and by the same power, and equity, (joyned with the consent of the Proprietors) it is so come to pass also, that this our Gavelkind in most places of England, is turned into the preference of Primogeniture, for the preservation of Houses and Lands: the next Chapter shall enquire, though it seems to return far back, whether we have any ground to believe, that the

CHAP. V.

Trojan Brytains used the Tenure of Partition.

I Could not pass by without taking notice of a Mar∣ginal question that Mr. S. makes in pag. 54. and it is this; By the way, (saith he) how do our Britains claim descent from the Trojans? Sith with them the eldest Son, by Prerogative of primogeniture Monopolized the whole Inheritance. I know not what Authors Mr. S. hath met with, that he affirms so positively, with our Britains the eldest Son did Monopolize all; if his, Sith with them relates to the Trojans, I have nothing then left to answer to it, nor do I think it worth the while to concern my self therein, believing that neither Dares Phrygius, nor Dictys Cretensis, nor Homer, nor any other pretended Trojan writer, did intermeddle in the relation of Descent. But I am perswaded, it must have reference to the Brytains, and that to them it is that he saith, Sith with them the eldest Son Monopolizeth, &c. and notwithstanding I have some inducements to be∣lieve, that Mr. S. asketh the question (how our Britains

claim Descent from the Trojans?) in Merriment and Jest: yet in their defence to that very question, there may so much be said, which will carry a greater pro∣bability, than any one that rejects it, is able to produce of another original. I told you before what King Edward the Confessour writes concerning the City of London, that, Fundata erat olim & aedificata ad instar, & ad modum, & in memoriam veteris Magnae Trojae, he calls it veteris Magnae Trojae, as if there were a younger Troy; for perhaps that Age had the conceit also of its being called Troinovant, founded and built in the me∣mory of the other old Troy: which in case it should prove to be so called, what reasons had the first Foun∣ders to make it ad modum and in Memoriam thereof, unless they had been related thereunto? I am not igno∣rant that the City of London had its site in the Country of the Trinobantes, the sound of which name might very probably administer much to the conceit; but my design now is to weaken the Vulgar opinion begun by the secret Distast of Polydore Virgil, and followed by very many; imputing it to be the Fiction of Galfridus Monumethensis, who was the Translator only of a Hi∣story out of such a Language as Polydore did not un∣derstand, notwithstanding his being a Canon of Here∣ford, and so consequently Living very near to Wales, who setting out his English History in the time of Henry the eight, in which (as much as in him lay) he la∣boured to disparage the British Antiquities, and not only so, but under the Patronage of King Henry, having power to search all Records, is reported to have seised the most Antient thereof (that were in beeing) in the Treasury of Landaf, and to have Destroyed them;

something of which nature I have also seen; for in a Register book, compiled by * 1.50 St. Thomas de Cantilupe, I found three leaves cut out; which by a constant and consident Tradition of the Registers of the Diocess of Hereford, in whose Custody that Book was, it is averr'd that this was done by Polydore: But as soon as his History was made publick, he was encountred by Sir John Price in his Book entituled, Defensio Historiae Brytannicae contra Polydorem Virgilium; unto his labours I shall referr the Desirous Reader: but among other things well worth the View, he shews the probabi∣lity of the first British Planters here; their Extraction and Derivation from the Graecians, back'd with many considerable Arguments and unvulgar Observations upon Antiquity, taken from their Language, Letters, Names, &c. But here we may observe, that the Con∣jecture of Trojanism was far more antient than the Virgilian opinion would make it to be; not only by what I have gathered out of that Discourse (newly cited) of King Edward the Confessour, concerning the exemplar of the Foundation of the City of London; but also long before this, from an Expression of * 1.51 Ambrosius Tele∣sinus, a Monk of Bangor, who lived in the first Age of the Saxons enterprize upon Brytain, and by the Welsh is honoured with the Title of Penbeird (i. e. princeps Bardorum) he, in one of his Cants largely discoursing of the Saxons, their Violence and Rapine, by an Apostrophe reverting from them, to

give comfort to his Country-men the Brytains, in the midst of such Disasters, expresseth himself thus: Now will I return (y Weddilion Trojon) to the reliques of Troy, plainly by the ensuing Discourse intending the Brytains, whom he supposed to be the off-spring of the preserved remainder after the Siege of Troy; and those that have en∣deavoured the reducement of Bri∣tish Words and Denominations to an Original from the Greek, have done it with good success, and without any such force as many Etymolo∣gists of other Languages have laboured under; and perhaps the Antient name of this our Island will with more probability be found from that Language than from any other; for surely the latter part of it seems to be a Greek Termination, as in several Appellations, believed to be by them imposed upon places, is to be perceived; like as in Lusitania, Mauritania, Tingi∣tania, &c. which is taken to signifie Regio, a Region. But to Mr. S's question, strengthned with this position, viz. That with them the eldest Son by prerogative of Pri∣mogeniture Monopolized the whole Inheritance, I an∣swer, that if our Brytains do claim Descent from the Trojans, those that had but looked into the Trojan British History, might with small labour have found, that Brute the Trojan had three Sons, Camber, Loeger, and Albanact, and having the whole Island at his dis∣pose, Divided it amongst them; from whose names (it is affirmed by those that write this Story) that the

Triplicite division of Cambria, Loegria, and Albania, first took their Original; and it is observable, that the Brytains, the antient Proprietors and Inhabiters of this Land, know not themselves under the Denomination of Welsh; * 1.52 that Word being as much a Stranger to them, as in its own Natural signification it is unto it self; for by it do the Dutch call the Bordering French and Ita∣lians unto this day; and is that Ap∣pellation which the Saxons impo∣sed on the Brytains, who (like unmannerly Guests) called their Land-lords or Hosts (the true Pro∣prietors) even (as I may say) in their own Houses, the Strangers. But the Brytains did antiently, and still do call themselves Cwmri, their Language, Cwmraeg, and this fancied to be from Camber; the same Brytains call England in their own Language Lloiger, upon the same fancy as before; supposed to be denominated from Loeger (another of the Sons of Brute) yet notwithstanding they call such Inhabitants as live in this part and division by them named Lloigria or Lloiger (now differenced from the other parts by the name of England) Saison, that is to say Saxons, who (together with the Jutes a third sort of Provincials that assisted in the Conquest of this part of Brytanny) are now under the single Title of English-men; these Twmri also, call the Speech generally spoken in England, Saisnaeg, (that is to say) the Saxon tongue. Somewhat doubtlesly there is of extraordinary reason, in these names of di∣stinction

and difference of Cambria, Loigria, and Al∣bania, in case we could recover it: but I am afraid the truth in this point is lost, for the Denomination of places from the names of men, as it is an old and fond conceit, so I think it an ill one; * 1.53 and for my part, I had rather believe that Brytannia is derived from the Greek word, BRYTON, which signifies Vinum Hor∣deaceum, (that Brytish Ale, a Drink, how Con-natural and antiently peculiar to the Inhabitants of this Island, will be now needless to Discourse) than that London is the refined Issue of Luds-town, or England of Hen∣gists-land, or Scotland, from one Captain Scoto: But this antient Triplicite division, whether the effect of Brutes partition, or no, I will not maintain, yet it is recorded by the same Pens as give us our History of Trojanism, and may serve very well in answer to Mr. S's Jocular question, since his question is a question taken for granted. Neither will I averr or much insist upon that action of Constantine the Great, who being•••• Brytain, and so probably experienced in the British Customs; that he, upon this ground or custom of par∣tition used among the Brytains his Country-men, did Divide the then intire Roman Empire between his two Sons; by him (I say) this division and partition was made, be the reasons or grounds of it what they will; and upon this Division were differenced and distin∣guished by the Appellations of the Eastern and Western Empires, which afterwards again returning into a single Person, came to Theodosius, (whom * 1.54 Procopius calls a most just Prince, and a great Souldier) he had two Sons, who after his Death succeeded in the Empire, Arcadius the Elder in the Eastern, and Honorius in the

Western Empires; which is said to have been done, ac∣cording to the former division, viz. That which the Em∣perour Constantine had made; so that the use or custom of partition in Empire as well as in private mens Lands is of great Antiquity. I proceed now to shew that there is

CHAP. VI.

Gavelkind in other places of the Kingdome of England be∣sides Kent: in the Principality of Wales. Gavel used in denominations of places; how used among the Welsh; of the word Llan: of the Normans invasion of the Ter∣ritory of Wales: the use of Gavell in the division of that Territory; and exposition thereof in the Welsh Vocabulary.

Mr. S. is much given to think that this Tenure of Gavelkind, is a singular appurtenance to the County of Kent. For in the first page of his book as the Theam of his discourse, he layes down this position: that Gavelkind is a property of that eminent singularity in the Kentishmens possessions; so generally in a manner from great antiquity over-spreading that County, as England this day cannot shew her fellow in that particular; and in his 54^th. page, For other Country-mens communicating with us of Kent in the Tenure, I conceive (saith he) it first came up by imitation of our example; in Ireland especi∣ally, and amongst the Welsh-men, in whose Vocabulary or Dictionary the word is sought in vain, as it is also in that old statute which concern•• them, viz. Statutum Walliae:

To evince this, besides the knowledge of several other places in England, that have this Tenure eminently unto this day; somewhat that M^r. S. himself doth confess in his Tract will help to cleer the contrary; as in par∣ticular where he testifies pag. 48. that Socage Land in general, and by the nature of it, is capable of partition, and by Custome may be, and in many places extra Can∣tium, is partible. Now so it is, that there is no County in England but have Lands held in Socage Tenure, and upon that reason are capable of partition; but more es∣pecially in Wales, where the word is in use among them, and more to a just and proper signification, than in any other place, or by any other Language, as I shall shew anon. But M^r. S. from its very denomination, (under the notion of it I mean) would perswade us to a belief of its singularity in Kent; which I cannot ad∣mit: for notwithstanding he hath not found any Lands in any other place to pass under that denomination; because (saith he) the Land in any deeds or conveyances hath not any appellations of Gavelkind; yet I say, use and custome hath still inviolably retained it; and the manner of its partition is in several places known under the very Title of Gavelkind. There are names of places that are compounded of the word in controversie, only to be found among the Welsh, (the antient Proprietors of this Land) from whose Language I shall make it my design to derive its Origine; and shall begin with this part first, because very much of certainty in antiquity, is to be drawn from the retained names of place; which if seriously remarked will afford us a great light to Hi∣story. There is a Village or Parish in Monmuthshire that adjoyns to the Territory of Urchinfield in the Coun∣ty

of Hereford, called to this day Llangattok feibon afel, which if any one attempts to read to a Welsh∣man, let him be sure to pronounce the single f like a V consonant, and then to be read by this power, Chlangattok vybon avel; but the common denomina∣tion thereof without the variation, proper to the Welsh Tongue, is, Llangattok gafael meibon. Llan, or, (as it is rendred by our English writers, to express the idiomatism of the British) Lhan and Chlan, signifies a Religious dedication, or locus sacer, and Doctor Davies in his Cambro-british Dictionary upon the same word, saith, that, vulgò sumitur pro fano, templo, sed potius ex∣istimo (he addeth) significare coemeterium vel aream Templi. Let it be either Church or Church-yard, it doth intimate a Religious dedication, and notwithstanding there are at this day many places that have the prae∣fix of Llan unto them, where no Church is to be found, yet if searched into and traced to their foundation, will discover some such appropriation and intendment. So I find in the forem ntioned Region of Urchenfield a cer∣tain Parish called Hen-Ilan, (commonly Hentland) which in the English Tongue signifies, the Old-Church; and in certain Pa••••ures belonging to a Farm in that Parish, there is a place which to this day is called Llanfrawtwr; which is as much as to say, The Church or Convent of the Brethren; the Site whereof was upon a small hill, not half a mile distant from Henland. The ruines of which place, with its old Foundations are yet to be seen, and was a place dedicated to Holy use, for there it was, that the great College for one Thousand students, was founded by S^t Dubricius the Prince of this Region; to repell the Progress of the Pelagian Haeresie;

who succeeded his Grandfather Pibanus King of Ergin (the old name of Urchenfield) and in the dayes of King Arthur, was made Archbishop of Caerleon. But I am gone too farr, my intentional digression was onely to shew that Llan was not solely appropriated to Chur∣ches, but antiently to any place, intended for a Pious use and exercise. But to proceed to the other part of the word, which is very facile, and is the name of the Saint to which this Church was dedicated; and so the signification in the denomination inferrs no more than Ecclesia Sancti Cadoci; which strange Saints name may cause some to wonder, as not finding it in their Calen∣ders; but they must understand, that the Brytains had a∣mongst themselves, a great number of Saints, who were not canonized by the Authority of the Pope, but by them∣selves; and this by a long continued Custome; which pri∣vilege was so familiar among them, that by that Autho∣rity and Custome, almost every Bishop made his Pre∣decessor a Saint; but these denominations of dedica∣tion, compounded with some remarkable distinction, do frequently occurr among the Welsh, as Llanihangle-Arrow, Llanihangle-Eskle, which are so called by them unto this day; and by them when they speak Eng∣lish, (as well as by the English themselves thereabouts inhabiting) are called Michael-Church-Arrow, and Michael-Church-Eskle, from the two Rivers upon which they are situated, and afford the true interpretation of their names; their suffixes being (as I said) to diffe∣rence them from others of the same Title in the begin∣ning; in like manner is it with this Llangattok, who for difference sake from several others of the same de∣dication in that Countrey, is called Gavell-Meibon, or

Feibon-afel; but not as it is most corruptly in several Maps of that Countrey written; so, that the Welsh could as little be able to retrive the mistaken writing of that word, as the English could understand the Ortho∣graphy thereof. It being Printed Llangattok-vinon∣avel in most of the Mapps of the Countrey, and lyes not far from Herefordshire. But the British Norma loquendi gives these several sounds, as by the familiar transmi∣gration of M into F, which last must be sounded like an V consonant in the English, or like a Beta or Vita in the Greek; and such is their manner, that they make these changes, whensoever it happens that cer∣tain Consonants end the fore-going words; as Mab (filius, a Son) transmigrates into Fab Meibon. (filti, Sons,) into Feibon; so also upon such accidents by vertue of their idiomatism they leave out the Letter G, as it hath falln out in these two words. But what am I run into? I am got out of History into Grammar! I shall on∣ly to put it out of doubt inform you, that Feibon a∣fael, is the one and the same with gafael meibon, which together with its dedication Llangattok-feibon∣afael signifies Ecclesia Sancti Cadoci de tenura puerorum, (the Tenure of the Children.) It will fall out convenient∣ly now to speak to what M^r. S. faith, of the Welsh con∣cerning the word; that in their Vocabulary or Dictionary it is sought in vain. The word Gafael (or as by our English pronunciation it receives force and power in the imitation of sounds is, Gavel) commeth from the British verb Gafaelu, which as Doctor Davies in his Dictionary renders it, is, Tenere, Praehendere; and in the most ordinary discourse the Welsh to this day have the

use of the word, expressing themselves thus, or in the like manner, * 1.55 Cymmeroch chwi gafel, which is in English to say, Take hold. I have wrote it in that man∣ner for the easier reading of it upon the force of the Letters; but it should have been thus written, Cyme∣roch y^e chwi gafael. In the same sort they retain the antient denomination of an Officer, which they call ga∣fael-swyddog, and was an Officer for Arrest, being deri∣ved from this Gafael, which is no more, than the Offi∣cer his holding, or laying hold of a person; (Swyddog is an Officer; but most commonly it is taken for a Magi∣strate as in the Laws of Howel dda.) Lastly, Forceps, a pair of fire-tongs, is nominated in the Welsh, Gefael, derived still from the verb Gafaelu to hold, and is a de∣nomination from the use; alwayes provided (as before I have said) you rem mber the pronuntiation of the single F. But to pass by this, which proves the word sufficiently in use and knowledge among the Welsh, and to be found in the Welsh Vocabulary, I come now to an objection which may be made concerning the denomination of this Parish; which some may fan∣cy to have been a late Act, and that the additional cogno∣men of it, might be caused by, and be the proceed of, some special remark of this Tenure. To which I reply, passing by what before seems most probable, that all Lands among the Brytains were partible; yet there may be somewhat in the distinguishing name of this Village, for when most of this Country was wrested from the Welsh by the Normans; (for till then, the Welsh did en∣joy it) this Village by the favour of the possessing Con∣queror, may probably retain this Custome, and accord∣ingly have its appellation; for we must understand that

King VVilliam the first not being able to satisfie the ex∣pectations of all his Assistants, with the forfeited Lands of the English; gave leave to several persons to get what they could of the VVelsh; and it was not till his Sons dayes, VVilliam the second, that Glamorgan-shire was attempted; these persons having at that time liber∣ty of constituting Regalities, and jurisdictions; as I have seen by a Charter to Brechnoc, from Bernard Newmarch (or de Novomercatu:) and as Cheshire so was Gladmor∣ganshire erected into a Palatinate. But there is no rea∣son to believe the additional name of this village was of so novel an imposition, as to carry no greater an∣tiquity than the Norman Conquest; for in case it were so, it was not probable the Brytains would give an appel∣lation to it by a name whereof they knew not the mean∣ing, and crowd this Saxon word (as M^r. S. would have it) in the midst of Welsh; so that it carries argument a∣long with it, that the word is rather of a Welsh paren∣tage, and that there is no other conceit in the name, but what referrs to the Tenure of Partition. The Brytains enjoyed that part of Wales in the Saxon Governments, and had not any fixed impression upon them, by any, before the Normans, who over this County at last, stretched their victorious Armes after many various successes on both parts, and stout defence made by the Welsh for their Lands and proprieties; enjoying it partly by force, and partly by composition and agreement; as the private fami∣ly Histories do manifest which I have seen: for there are several Family••s of the greatest note in that Coun∣trey, that are able to produce testimonyes of enjoying their Lands and Birth in that circuit of Land (for shires and Countreys are not of a VVelsh institution) before the

Norman Conquest; so that by this it is probable they did not subvert all, neither were they in quier about Aber∣gavenny after the Reign of Henry Fitz Empress, Gyraldus Cambrensis relates a series of their Actions in those parts. But to leave these storyes, I think it least of all probable, that the Normans would borrow a ••entish word, to de∣nominate any thing to their British Tenants, or plant it there as a Kentish Custome; seeing in case the derivation according to M^r S's opinion, should prove true; this denomination was as much unknown to the Normans themselves, as possibly it could be unto the Britains; and alike to both of them; if the Normans had found a ne∣cessity of making an intelligible expression and appel∣lation of such a Custome of Partition, certainly I should have met amongst them with the Roturier; which I un∣derstand is in use over all France at this day; and very frequently in Normandy; the Island of Jersey parcell of the Norman Dukedome retaining still this Custome to this day under the name of the Roturier, whilst her Si∣ster Guernesey hath no footsteps of it; but are as diffe∣rent in their Tenures as in the nature of their Soyl; for in one (as I am informed (like as in Ireland) no Toads, Spiders, or Venomous Creatures will live; whilst in the other they have them in distastfull abundance. But e∣ven now I touched upon the Saxon division of Shires and Countyes, and told you it was not the British Policy; which puts me in mind of that Order that was obser∣ved by the Welsh, and rectified by Howel-dda in the ordering of his Principality; with the carefull intermix∣ture of civil-descents and military disposition; wherein we shall find something to our matter in hand worthy the notice; the description as Humfride Lloyd hath writ∣ten

out of the Laws and Ordinances of that Prince, is in short thus; First a Cantref, which had its De∣nomination from one hundred Towns (and signifies as much) under which was so many Commots, which the Welsh call Cwmmwd, and signifies Provincia, Regio, Cohabitancia, and confisted of twelve Man∣nours or Circuits, and two Townships; there were four Townships to every Circuit or Mannour, and every Township comprehended four Gavels, every Gavel had four Rhandirs, and four Tenements were constituted under every Rhandir. Of Gavel, I have told you before that it signifies Tenura (a Te∣nure) Rhandir is a word that admits not of any pro∣per Sign ficancy in our English speech, but is by Doctor Davies rendred Pars aut Sors haereditaria, from the Verb Rhannu, Parti••i, distribuere. These divisions were set out by him, as it were into a proper and peaccable Conveyance and Conduit-pipe, for the Lands of his Principality which were lyable to this Parti∣tion: so that we find in every Township four Gavels, which were four great Holds or Tenures; out of which I cannot find the Prince had any Rent, for that the Gentry held their Lands very free from any base ser∣vice, only subjected to their Military policy and pro∣vision; the Prince his own maintenance, (that so he might be obliged to a respect and care of every par∣ticular in his Principality) was set out in every Cwmmwd or Commot, which (as I said before) con∣fisted of twelve Mannors or Circuits, and two Town∣ships, which two Townships were belonging to the Prince, thorough out each Commot in the Principality of Wales; for in the person of this Howel the Territories of

North-wales and South-wales were united, as himself in the * 1.56 Prooemium of his Laws doth declare. This Gavel in the description aforesaid, seems to be a large ap∣portionment of Land belonging to a * 1.57 Pen-cennedl, or chief of a Family or Clan, and doth per eminentiam signifie the Tenure, that is to say, their Gavel; this being only (or at the least most notably) known by them: So that every Pen-cennedl in his Gavel, having four Rhandirs, that is, sortes or partes Hereditariae, ready divided and apportioned for his Cennedl or Genera∣tion; and not only so, but also a sub-division of many Tenements under the Rhandirs: shews perfectly a Gavel, Tenure or Hold, exactly observed even in their general partition of Lands: and this so antient (at least) as the time when Howel-Dda collected these Laws, which was about the year of our Lord 942. so that the true genuine Signification of all is, Tot partes Hereditariae in Tenura; that is, each Gavel or Tenure did consist of so many Rhandirs, or Heredi∣tary divisions ready parted; each of these Tenures being supposed to be so ordered, as to admit of a Di∣vision, and if need were of Sub-divisions also; that so a Township might the more aptly be constituted for the execution of this common Tenure; and these so holding in, or rather by their Gafael, were not only the antient Villati or Villani among the Brytains, but also the Gentry Lords and Prince himself were subject to it. The use of the word (viz. Gavel) to a proper Signification I have shew'd, and that also Extra Can∣tium, to which County Mr. S. doth labour to Mono∣polize

it, and the use thereof for several hundreds of year past, even at such a time, when the Corres∣pondency (in probability) betwixt the Brytains and Saxons was so small, and the Odium so great, in respect of the unforgotten intrusion of the last; that in that continued state of Warr, it was not probable they would have accepted of any Saxon Customs, by a name so insignificant to the thing, (as antiently the Etymology of it was received) or so little to the matter, (as Mr. S's novel Exposition would render it) or to the rati∣onal use thereof. But I have already shewn in the fore-going Discourse, in what sense the Brytains have received it, and also what Doctor Davies in his Cambro-British Dictionary, (which in my judgment is an Ela∣borate and Critical piece) hath said and exemplified thereupon; for he it is, that not only affirms Gafaelu (by English Letters pronounced Gavaily) to signifie Tenere, to hold, as before I have said; But also Gafael (by English Letters spoken Gavel, the word in Con∣troversie) to be Tenura, a hold. But for the Statutum Walliae wich Mr. S. discourseth of, wherein he affirms that the t••tm Gavelkind is not to be found, though the Castom of partition is there in mentioned, which with∣out any great trouble (all things considered) might argue it to be a British custom, yet confesses that the Parliament in the Statute of 34 Hen. 8. can. 26. did make use of the word Gavelkind. But how? (saith he questioning, and then resolving it)

only as b••rrowed, to help to Describe and Ill••strate that partible quality of the Lands in Wales, therein mentioned; and that it was transmitted by our Lawyers, who borrowed the term to make use of it fo•• Illustration sake;

But (with par∣don)

I shall ••ence ••••ferr, that it passed there, as a most natural and genuine Expression, and is properly a peculiar of their own, upon the grounds before set down. As for the antient Customs of the Kingdome of Ireland, * 1.58 I have little to say, except it be, that when King John overthrew the Brehon Law, Anno Regni sui 12. and then setled the English Laws; that this Tenure of partition might pro∣bably receive a great abatement of its common usage and force a∣mong them, who it seems have the foot-steps and remainders thereof very Visible unto these our days. But in this I shall desire to be excus'd, as not having informed my self sufficiently, so as to make a satisfactory Discourse thereof; confessing my self much ignorant in that Hi∣story, and shall proceed in the Discourse

CHAP. VII.

Of soveral Customs of Descent of Lands; of the welsh Laws of Partition; of Knights-s••rvice and war••ship among them.

STill it is that Mr. S. goes about to confine the Knowledge of Gavelkind to the Circuit of Kent, and will not allow it Gavelkind in any other Country but that: For in pag. 49. he saith thus;

what, else where, I mean in other Shires and Counties they properly

call by the name of Socage, whether free or base, we here in Kent are wont to call by the name of Gavelkind, or if you please (in Mr. Lambards expression) all Socage-service here properly so called, is cloathed with the ap∣parel of Gavelkind, and under it in a large acception, is understood all such Land within the County, as is not Knights-fee or Knights-service-Land; the term serving here to Contra-distinguish it from Knights-service-Land.

But let a man go into Urchinfield in the County of Hereford, and inquire of an Inhabitant there∣of, in what manner Lands there are held? he will readily and speedily resolve him, that they are subject to Gavelkind; and as fully inform you of the nature of that their Tenure, viz. that by it, their Lands are all partible among the Males; (and in defect of them, among the Females, as other. Lands of Inheritance are throughout England.) I have met with another kind and fort of Partition, which I dare venture to call Gavelkind, and is very unusual; because by the Cu∣stom of the place, both Males and Females have a right equally in the Partition. I think it may not prove displeasing to insert the Record, as it was shewn to me by my Industrious friend Mr. Falconbridge, to whom, for this and many others favours, I must acknowledge my self with much-gratefulness Indebted, and thus it is in the Office of the Chamberlains of the Exchequer of Receipt; being the like as I find it in Flanders, and the same with that in Ireland.

Dorset.

Placita de jurat is & Assiss. Anno 16. Edw. 1. Metingh.

Edwardus Kaynel. Maria filia Roberti de Camma. * 1.59 Jo∣bannes Bereset, & Matill. uxor ejus, & Johanna soror ejusdem Matill. petunt versus Johannem Alfrith de War∣ham unum Toftum cum pertinentiis in Warham: de quo Johannes Gerard. consanguineus predictorum Edwardi, Mariae, Matill. & Johannae cujus heredes ipsi sunt, fuit seisitus in Dominico suo ut de feodo die quo obiit, &c. unde dicunt, &c.

Et Johannes venit & dicit quod Tenementa in Warham sunt partibilia inter Mascu••os & Femellas; & dicit quod predictus Edwardus habet quasdam Gunnoram, Matill. Christianam, Albredam & Eufemiam sorores & participes ipsius Edwardi & aliorum petentium; & que tantum jus habent in re petita sicut, &c. & que non nominantur in B••evi; unde petit judicium de Brevi, &c. & Edwardus & alii non possunt hoc dedicere: Ideo consideratum est quod praedictus Johannes eat inde sine die, &c. This though it may seem strange, yet may properly enough be called a Gavelkind: for let the Custom of any place be according to the usual or unusual way of Partition, it is but the Tenure of that place, and will come well enough under that Denomination; and that which Mr. S. brings in his 49^th. page, as a Solution to an

Objection, viz. That it is no other than a Custom gene∣rally spreading it self throughout the whole Country in Land of that nature;

should have been thus laid

down, (without confining it to the County of Kent) viz. throughout any Country or all Countries in Land of that nature, for so indeed it is. In the Villages round the City of Hereford, * 1.60 I find their Lands are all held in the Tenure of Borough-English; where (without difficulty I conclude that) it is a Custom spreading it self throughout those Parishes and Villages in Land of that nature; neither can it be otherwise but that the youngest Son ought to be, and must by Law be found Heir, so long as that Land remains under the same Services and Copy-holdings of their respective Man∣nours; and the Suters here do as much stand upon their Customs, as in Urchenfield they insist upon their Custom of Partition among the Males, or as Wareham in Dorsetshire among both Males and Females: ano∣ther sort of usage in the Tenure of Burgh-English, is mentioned by Sir. Edward Coke, upon * 1.61 Littleton, in these words; within the Mannour of B. in the County of Berk, there is such a Custom, that if a Man have divers Daughters, and no Son, and Dyeth, the eldest Daughter shall only Inherit; and if he have no Daughters, but Si∣sters, the eldest Sister by the Custom shall Inherit, and sometime the youngest; and divers other Customs there be in like Cases. And brings in Britton to strengthen him, (and to confirm what I have said) saying De terres des ancienes demeynes soit use solonque le antient usage del lieu, d••unt en ascun 〈◊〉〈◊〉 le ••ient leu pur usage: que le heritage soit departable, entre touts les enfants freres & sores, & in ascun lieu que le eigne avera tout, & in as••un lieu que le puisne frere avera tout. Here you see seve∣ral

usages, and the like with the usage of Warham, and all according to the usage of the place; which is their Gavel or Tenure. But to return to that which is commonly received for Gavelkind, which is a Partition among all the Males, notwithstanding the existency of Females; of which sort there are also many kinds, some that consider the Elder, as that in Urchenfield; others that have a greater respect to the Younger, as that in Wales; some sort more free, other sor•• more servile; yet in Wales it was all called per eminentiam Gavel, as being the common Tenure there; and indeed, by my search among their Laws, I could not perceive that they had any other. And here I shall recite to you several Laws of Howel-dda, one whereof inferrs Knights-service, another Wardship, and all of them their Gavel, under the Community of Partition. * 1.62 The first is this, Si quis habuit plures filios, & aliqui eorum vel ownes praeter unum mortui fuerint, ille unus heredi∣tatem omnem habebit, si potuerit pro heredictate sua Domino respondere: Here by Law care is taken, that in case all the Sons should Dye, except one, then that that one ought to enjoy the whole Inheritance, to which cer∣tainly he had no right, (that is as to the whole) had the other Sons lived; and the Law is so general, that it referrs not especially to the Eldest, or to the Youngest, but to any of the Sons, who all alike had the same in∣terest and propriety. Nevertheless, this privilege is under a Condition; and that is, Sirpotuerit pro hered••tate sua Domino respondere; this answering to the Lord; is a comprehensive term of a Military duty, and all other referved Exits of the Land; and an those ••aws, is the usual expression whereby both Military services and

Mailes are understood. The Law for Wardship is this. Si terram hereditatis sue aliqua Parentela (id••est) Gueily-gord inter se non diviserit, quamvis omnibus aliis defunctis; non nisi unus unius supersit, ipse terram habebit: at si de Terra illa utpote deficiens, jura sua Regi prestare non poterit; Rex terram possidebit, donec illesufficienter pro Terra possit respondere: In this Law is not only an ex∣press of the Tenure of partition, but also the service due to the King from the Land, and a Title of Wardship to the King untill the service by the proprietor can be suffi∣ciently performed. And although M^r. Campden treat∣ing of the Court of Wards, saith, veteri enim instituto è Normannia deducto, & non ab Henrico tertio; yet this shews the Britains had it before the Norman Conquest, & that our Policy was not wholly derived from beyond the Seas, (to make out which, many writers are very fond) but that antiently our Britains had that wisdom in themselves, and such Politique Customs among them∣selves, that shew the little need they had of borrowing from others; and I believe this is as antient an express of Wardships as may be found; certain I am, it is the an∣tientest I have met with; and notwithstanding the Bri∣tains had it amongst them before their acquaintance with the Normans: yet that which M^r. Campden writes may be true, if he means only the Courts of Wards; but the Tenure by Wardship enjoyes that antiquity I before have shewed. But a little to consider the form and manner us'd in the composure of these Welsh Laws, I observe, that frequently it occurrs among them, that the expression of the significatum in the Latine is explained by the British Term, and was not in those times, (as some may imagine) an ignotum per ignotius; but a ready and

prompt way to make the Laws facile and easie to the understanding of the concerned Subjects. Aliqua pa∣rentela, doth not so fully explain the design of the Law, as it is, with (id est Gueily-gord) which word turned into Latine signifies ex amore lecti aut concubitus; and is derived from gwely, lectus & cubile, and gordd, Mal∣leus, it is, &c. the mawl of the bedde; or the effect of bedd∣malleating; an expression used by the Brytains to diffe∣rence such Children as were legitimate, born in the true bedd of Wedlock; from illegitimate, or such as were born in bastardy; yet for these, there was a provision in the Laws, but that was ex patris benevolentia; here, in this Law the Title of partition is made out; yet so that in all cases the Land must not be of necessity subject un∣to it; for if the Legitimate Children have not divided the Lands; and it should chance that all of them dye except one, that one shall have all the Land; upon that condition before spoken of. But in case that the Land be divided among the Sons; and after this division one of them dye; what shall become of his part and appor∣tionment? This objection is solved by another of their Laws; which that it may not want any thing to the full explanation thereof, I will bestow the transcribing of it, the rather because in all parts it confirms the British Tenure, or Gavel and is this: Si aliqua progenies inter se dividerit hered tatem; & post aliqui eorum defecerint; pars eorum in manu Regis cadet; quia alii partes suas se∣cundum divisionis rationem habuerint; here it is provided that the Progenies must inter se hereditatem dividere; and then if any portioners dye after the partition, the part or portion of the deceased Escheats to the King; and the reason and ground thereof is there rendred;

Quia alii partes suas secundum divisionis rationem habu∣erunt; because that each one had his share or appor∣tionment according to the Rule or Law of dividing or parting. But because M^r. S. doth write of the great privileges belonging to Kent by this Tenure, I shall make in the following Chapter

CHAP. VIII.

A Competition of Privileges betwixt Kent and Ur∣chenfield.

MUch of my enquiry hath, in these last Chapters, been spent about the singularity of the Tenure of Gavelkind in Kent. I now proceed to shew a com∣petition in privileges betwixt other places subjected to this Tenure, and Kent. For that M^r. S. saith in his 53. page,

Kentish Gavelkind consists of many singular properties; which may as well challenge a share and right in the customes name as may that of partition, such as dow∣er of the Moyety, not to forfeit Lands for Felony, and the like.

I believe not, either partition, or any of those mentioned privileges have a share or right in the name of the Custome, (which I shall discourse hereafter) nor that the singular properties of that Land in Kent, comes near to that in Urchenfield. * 1.63 I grant they are the same in case of Felony, for I find it Recorded, Rob. Bonehatch was hanged for Felony; the Sheriff of Kent seizes on his Land in Chertham, held of the Archbishop in Gavel∣kind; the King writes thus to the then Sheriff, Quod Reginaldus Dyke nuper Vic. com. predicti habuit inde an∣num,

diem & vastum: non obstante quod ex antiqua con∣suetudine approbata, usitata & allocata de Ten. que sic tenentur, secundum consuetudinem de Gavelkind: in hoc ca∣su nos habere non deberemus annum, diem neque vastum; nec capitales domini inde escaetam, set proximi heredes sic convictorum & suspensorum haereditatem suam immedi∣ate consequuntur, felonia illa non obstante; this is the right of both, and of all Wales. I will not here compare the extent of the two Regions together; but yet a small matter would perswade me to believe, that at this in∣stant day, there is as much Land subject to Gavelkind in Urchenfield as there is in Kent. And here first let us ob∣serve that the Land that is thus partible, cannot be held or received to contra-distinguish it from Knights-service-Land; for if it be not held by all or most of those tyes and bonds by which Knight-service-Land is invested; it must then hold by some other servile or baser Tenures; Therefore the honourable services of the Lands in Ur∣chenfield by their Tenure are in gross Recorded in Domes∣dey book thus. In Arcenefelde habet Rex C. * 1.64 homines IV. minus, qui habent LXXIII. car. cum suis hominibus; & dant de consue∣tudine XLI. Sextarios Mellis, & XX. solid. pro ovibus quas solebant dare, & X. solid. pro fumagio. nec dant geldam, aut aliam consuetudinem, nisi quod pergunt in ex∣ercitu Regis si jussum eis fuerit. These Ninety six men here spoken of I reckon them to be liberi ho∣mines; yet such as held in Gavelkind; and the seventy and three Ploughs with their men, I look upon them to

be their villani; and both liberi & villani to hold their Lands in Gavelkind; for that I find all their Lands in that Territory which consists of two hundreds, are so held to this day. You find them free from payments and Customes antiently imposed upon the rest of the Na∣tion, because as a special remarque it is said, nec dant geldam aut aliam consuetudinem, unless it be to march in the Kings Army when they are commanded; yet pay∣ing (as the rest of Wales doth) their Tatu-fooch, and Talu-ffurn; this last being the fumagium there Recor∣ded, and is a payment for fire; whether Peter-pence or no, I am not certain; but incline to the negative: be∣cause it is paid still to Lords of Mannours generally over Wales to this day. But to cleer the distinction that I made just now of Freemen and Villains in Urchenfield, that so I may not seem to speak without book, I gathe∣red it out of the same Record; which in the next Para∣graph gives a further account in these words: Si liber homo ibi moritur, [Domesd.] Rex habet caballum ejus cum armis: de Villano cum moritur habet Rex unum bovem. The first seems to me to be Relief from those that held by Knights∣service; because his Horse and Armes when he dyed did belong to the King; the second to be Heriot; both which were antient British customes; as you may per∣ceive by the conclusion of all the Customes. These men had the Chief Honour in the Army given to them; for cum Exercitus in hostem pergit, [Domesd.] ipsi per consuetudinem fa∣ciunt Avauntwarde, & reverstone Redrewarde; they did lead the Vann to fight, and out of the field brought up the Rear. These honours were not the least in those dayes I assure you, no more than in our age: I say, these men enjoyed these and many other privileges,

with their Gavelkind, unto this present day; which be∣ing all compared with the Laws of Howel-dha seem to be the same with them, as for satisfaction for murder, for burning of houses, &c. all certified in Domesdey, with this additional Paragraph in the conclusion. Hae consuetudines erant Walensium tempore Regis Eduuardi in Arcenefeld. I know not what could have been said more pertinent, they have still this Tenure of Gavelkind, and they have those o∣ther enumerated Customes, derived to them from great Antiquity, (before the Norman Conquest) which are all certified to have been Consuetudines Walensium Tempore Regis Edwardi; and this by the con∣victum est of this Record; so that it seems plain that this Custome of partition among the rest was devolved over to them as a Welsh custome; which by the Laws of Howel-d••a, I find was so paramount, that unto it, as to the Center, all other provisionary Laws, found among them, do point and have reference; and not probable to be here planted by imitation of any other forein nation or people. But to return again to the compe∣tition; this Region, * 1.65 for so in antient writings it is cal∣led, hath not only the like privileges in respect of Dower of the Moyety; and no forfeiture of Lands for felony; but also this; that, ibi non currit Breve Regis; and in the Custody of the Chamberlains of the Exchequer of Receipt there is a Plea thus inrolled, In Placitis coram Rege.

Pasch. Anno 9. Majus Edw. 1. Heref. 32.

Homines Hundredi de Irchinfeld à tempore quo non ex∣tat memoria, placitaverunt, & placita sua habuerunt de omnibus placitis que ad coronam pertinent: Sive de Appel∣lis

sive de transgressionibus contra pacem Regis, solummodo coram Vice-comite Heref. & non coram aliquibus aliis ju∣sticiaris: this was exhibited in reference to some ap∣peal made in derogation of the power of Irchen∣feld to the Justices Itinerant, but upon hearing it was adjudged thus; Ideo Appellum remittitur in Hundredo predicto; it was it seems then called a Hundred, but in several other pleadings it is called Libertas de Irchen∣feld; and in case of Appeales, or any thing else that was impleaded out of the Liberty, I find that the Ballivus Libertatis de Irchinfeld came thither, and oftentimes claimed those Liberties; which were all ordered unto him, (that ever I yet could meet with) for the use of the Liberty. They have within that Circuit, a Liberty to Arrest for any Sum of money whatsoever. That whoever purchases Lands there may bequeath them to whom he pleaseth, * 1.66 as that of the 20 Edw. 1. between the Nephews of Philip de Martinestow and Glodithā fil. Mau∣ricii fil. Wasmaeri; which said Gloditha pleads, quod unusquisque qui terram habet infra Hundr. de Irchenefeld de perquisito suo potest illud perquisitum legare cuicunque voluerit tenementum, &c. Tenementum illud leg atum fuit pred. Glodithe. Unde dicunt quod Breve istud non cur∣rit infra Hundred. pred. To this, Jurati dicunt super Sacram. suum quod predicta Tenementa sunt legabilia; & quod predict. Philippus Tenementa illa legavit predicte Glodithe; & quod Breve istud non currit infra Hun∣dred. predict. Ideo Glodithe concessum est inde sine die. They have a formal way of Judgment of their own, much after the British fashion: The Steward with his Officers belonging to the Court being seated; there be certain Chiefs among them, whose Houses and Lands

are held of the Lord by Sute and Doome in the Court of that liberty, and hereupon are called Doomes-men, that is to say, men of Judgment; or such who judge of mat∣ters in Controversie. * 1.67 Therefore in the Quo warranto roll of Irchenfield in the 20 Edward 1. it is Recorded, that Jurati Hund. de Irchenefeud, Webbetre & Greytr. di∣cunt, quod Botholin qui tenuit villam de Comboglin so∣lebat facere Sectam ad Hundr. predict. & esse unus Domes∣man de eodem Hundr. &c. and in other Collections of Antiquity that I have transcribed, there is one Record that is Intituled de libertate de Domesman. But because my intentions are to be more large upon this Theme, in a Tract more proper, I shall wave it at this present; only among other duties reckoned up in Domesdey this is one (that I had almost forgot,) to carry the Kings Messages into Wales, and to Pray for him in three Churches every week; and in ano∣ther Record, which is instar omnium, and by it they as it were were left to their own Liberty, and are said to be extra Comitatum; not bound up to any strictness by the Countrey Laws. Which how farr transcending the Kentish privileges, I leave to any to judge. Now if Dower of the Moiety, and not to forfeit Lands for Felony, be the greatest privileges Kent hath by the Tenure of Gavelkind; then are the privileges of other places where the use of Gavelkind is not at this present, far greater: as in some special privileged Hun∣dreds and Precincts, &c. in the discourse of which it will be besides the matter in hand to engage. I pro∣ceed to the discourse of.

CHAP. IX.

Several sorts of Gavel not relating to the Tenure answered as urged by Mr. S. How that Gavel was understood; by our late Lawyers; How in Domesdey by comparing places together, and how among the Saxons; a Discourse upon the Writ called Gavelet.

MR. S. In his tenth page writes that the word Gavel, as to the main part of it, frequently oc∣currs in the old Records of some Mannours out of Kent, sometimes simply, but for the most part in com∣position; for example in Gavel-erth, Gavelate, Gavel∣lond, &c. I make not a Citation of these words, as if I intended to put a force upon them, as some at the first reading may imagine, because Mr. S. averrs that the word Gavel doth occurr in some old Records of Mannours out of Kent; which I take not, as there mentioned in composition to have any relation to the Tenure of Partition; for that which is applied in those compositions for several uses, as in For-gavel, Mete-gavel, Gavel-rip, Swine-gavel, Werk-gavel, Hunig-gavel, &c. is little to our purpose. Several such I have met withall, and divers different from what Mr. S. hath reckoned. I have encountred with a Pride-gavel; which in the Lordship of Redely in the County of Gloucester is used and paid unto this day, as a Rent to the Lord of the Mannour, by certain Tenants;

in duty and acknowledgment to him for their Liberty and Privilege of Fishing in the River Severn for Lam∣prayes; and in the same Lordship is also another called Sand-gavel, which is nothing else but a Payment due to the Lord, for liberty granted to the Tenents to Digg up Sand for their uses. Many such the Reader might be furnished withall, did I conceive they would redound in any measure to our discourse; for my judgment is, that this Gavel in these Compositions, and Gavel in the Tenure, are very different in their acceptations, as I shall shew anon. But to examine Mr. S's Collections and Observations concerning these compounded Ga∣vels; where in his Paragraph of Oate-gavel (in pag. 21.) he declares this was a certain proportion of Rent-oates served into the Lord, sometimes in Kind, and other while, by composition redeemed with Money; and out of South-Malling Custumal urgeth this, quod omnes operarii debent reddere annuatim quod dicitur Gavel-otte in xl^m2. (i. e. in Quadragesima) and in another accompt roll of the same mannor, it is said concerning a certain Tenant, that, respondet de Octo quarteriis, &c. receptis de Gabulo Custumariorum, &c. and again, de Avena de Gablo vendita iii^s. and x^s. vi^d. de quinque quarteriis, &c. de Gavel-ote de redditu venditis. This charge of ten shillings six pence upon five quarters, &c. sold, de Gavel-ote de redditu, I guess it to be nothing else, but an Imposition, an Excise, or an Assess; (which is the proper signification of the word Gablum or Gabu∣lum) and so to be understood: as the Excise or Assess upon the Corn sold by the Tenants, when for Rent they should have paid Oats in kind. Which receives a lit∣tle explanation by the precedent accompt; where it is

said, that respondet de octo quarteriis, &c. receptis de Gabulo Custumariorum; and again, iii^s. de Gablo de Avena vendita: the Excise or Assess upon the Custo∣mary Tenants for viii quarters sold, and the iii^s. to be understood in the like manner, that is, an Imposition or Excise for Oats sold. Certainly Gablum or Gabulum is not a word so much out of use, that we had need to grope, or were forced to search after it, as it were in the Dark; for even in these our days with ease we may produce the use of it; bearing the same Significa∣tion as I have now given to it; to the same purpose and sense do I find it us'd in that prodigious insur∣rection at Naples, within these few years under Massa∣niello a Fisher-man; where the Story translated (in this point I may say Literatim) gives the ground of it to be a certain Payment or Excise upon Fish, which the Italians call Gabelli; and we have transmitted un∣to us in the Translation, Gabells; known in Spain by the term * 1.68 Al∣cabala or Alcavala, which as Minshew doth expound it, is, Datio, Redditus, Census, Tributum, Vectigal, Portorium; and in English is rendred, an Impost, Custom, Tax, Toll or Tribute; and from our use of it is called Gabell, Gabella, Gablum. He addeth, that it comes of the French word Gabelle, that is, Vecligal, and hath the same Signification among our Old Writers, as Gabelle hath in the French; and then concludes, Gabella, as Cassan. defineth it, de consuet.

Burg. f. 119. est vectigal quod solvitur pro bonis Mobilibus; id est, pro iis quae vehun••ur; distinguishing it from Tributum, for this reason, quia Tributum est propriè quod fisco vel Principi solvatur pro rebus immo∣bilibus: and is the fame which Mr. S. pag. 23. upon Swine-gavel doth cite, Et de vii^s. x^d. de tribus porcis de gablo venditis; in which place this de Gablo sig∣nifies for Gables, or upon the accompt of that Imposi∣tion; and certainly may without any force upon the word be rendred at large, as Mr. S. hath done it, A Rent: for Rent in Latin is, Redditus, which is, a Payment made or given for any thing whatever; and Sir Ed∣ward Coke upon Littleton, writing of Rents, saith, * 1.69 That bysome, Redditus dicitur à redeundo, quia retro it & quo∣tannis reddit, &c. for reddendo inde, or reservando inde, or the like, is as much to say, as that the Tenant or Lessee, shall pay so much out of the profit of the Lands; for, red∣dere, nihil aliud est quam acceptum aut aliquam partem ejus∣dem restituere, seu reddere est, quasi retro dare; and here∣of commeth redditus, for a Rent; and adds this to it; Here note (saith he) for the better understanding of antient Records, Statutes, Charters, &c. that Gabell or Gavel, Gablum, Gabellum, Gabellettum, Galbel∣lettum and Gavillettum, do signifie a Rent, Custom, Duty or Service yielded or done to the King or any other Lord; and then cites Domesdey book, which he hath thus; Wallingford continet Cclxxvi Hagas (i. e.) domos reddentes IX liberas de gablo (i. e.) de redditu. The which I my self Transcribing out of the Original book, find it to be thus; In Burgo de Wallingeford habuit Rex Edw. Viii.

virgat. terre & in his erant 276. Hage red∣dentes XI. lib. de Gablo; so that Liberas should be corrected and read Libras. The other difference betwixt the two Citations is only Sir Edward Coke his Comment or Construction of it; * 1.70 but this it seems he takes for granted, that Gablum hath no other signification than Rent: for by the same Record, to be sure that that Rent of xi^l. (not ix^l.) should come into the King's Coffers, there is a Paragraph, that provides for it, where it is written, what and how the Souldiers that the Burrow shall find upon all occasions for the King, shall be pro∣vided for, and is thus ordered; [Conredium] Mercedem non de censu Regis sed de suo; all the Cens or Rent that the King had, that I could find, is that Gablum of eleven Pounds; and this Gablum was not always paid in Money. For in Sudsexe, under the Title of the Lands of William de Warene in the same Record, is this, that Radulfus tenet de Willielmo (that is of William of Warren) Bristelmestune. Brictric tenuit de dono Godwini Comitis T. R. E. in Do∣minio, &c. De Gablo IV. milia Alletium; and under the same Title it is there remembred; Pluntune, Hugo filius Ranulsi tenet de Willielmo, &c. ibi, &c. Silva de XX. porc. De gablo XVII. porc. But that Ga∣blum did as well relate to Money as to other things in kind, either Herrings or Swine, is very plain by that Record in Domesdey book, in Windesore in Berkshire, where it is said, Rex Willielmus tenet Winde∣sores, in Dominio. Rex Edw. tenuit, ibi

XX hide, &c. & adhuc sunt in villa C. Hage V. minus; ex his sunt XXVI. quiete de Gablo, & de aliis exeunt XXX. solid. And lastly, (out of the same Book I still write) in Som∣mersetshire it is thus expressed under the Title of Terra Regis, which I desire the Reader to observe; Rex tenet Cedre (I suppose it is that Chedder so famous for its Cheese) Rex. Edw. tenuit; nunquam Geldavit, nec scitur quot hide sunt ibi, &c. in Dominio, &c. XX. Bord. cum XVII. car. & VII. Gablatores redd. XVII s. These seven Gablatores did pay for Rent 17 Shillings; and from their paying of Rent were termed Gablatores. To me it seems probable, that this Gablum is to be distin∣guished from a Rent or Payment made upon Contract or Bargain; and have Relation to such an one as was imposed by the Power and Will of the Lord; and these different sorts of Payments are passed in Domesdey book under several expressions, according to the nature of them; where sometimes it is written, that one reddit to such an one so much, without any other addi∣tion; and this I believe is Rent upon Agreement and Contract. Another, reddit de Consuetudine so much; and a third, red it de Gablo so much; and if the Oate-gavel, and the Werke-gavel, be taken into this Obser∣vation, with all the rest by Mr. S. mentioned, they will prove to be of the Off-spring of Gablum, and should have rather been writ with a B. than a V Con∣sonant; which Transmigration is so familiar in our Europaean Languages, that nothing more frequently

occurrs; and not only among these, but also in most of the Oriental Languages, where the Beth or B Mas∣culine doth pass after the same effeminate manner into V. especially where in the Hebrew and Chaldaick there is to be found the difference, by the interposition of the Dagesch or Prick in the Letter, without which it is sounded as an Aspirate; and so likewise is the F. fa∣miliarly turned again into V Consonant; as it falls out in most Languages, especially in the British. But to return to this word Gavel, which if it shall receive a common acceptation, and that according to what Mr. S. hath rendred it, which he labours to make out to be the chief Acme of his design, and all is, to have it signifie a Rent or Imposition, in which we are agreed; but then in this we differ and dissent, that there ought not to be allowed to it any relation to the Tenure of Partition, (which is my opinion) and which Mr. S. will hardly admit. But to run over some more of his Gables. That which he discourses of in his 30^th. page is a For-gavel, which is rightly rendred foris Ga∣bulum, and is defined to be quasi extra (vel praeter) Gabulum quod Domino capitali debetur: and this corres∣ponds with what before I have said, that it was a Rent or a Duty, besides, over and above, or beyond the Ori∣ginal contract or bargain. The like is in Mete-gavel, which is Cibi Gablum, a Rent of meat or food; Swine-gavel, which is porcorum Gablum, a Rent of Swine. Werke-gavel, and Werke-gabulum, which is operis Gablum. Hunig-gavel, which is Gabulum mellis, * 1.71 Rent Honey;

of which sort in Domesdey you may find much; and in the 60. Law of King Ina, we find a bere-gafol, which is a Rent of Beer or rather Barley, as Mr. Lambard expoundeth it. For in some Countries of England, and in Scotland, they to this day call Barley, Beer. There is also in the 66. of King Ina's Laws 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, (speaking of a yard of Land) which Mr. Lambard renders to signifie Mercede conductam, that is hired for Rent or Wages: So is it in the Covenants betwixt King Alured and Guthrun the Dane, In the second Article, where it is said, bu tan ðaem c••o••le de on gafollande rit, which Mr. Lambard renders thus: Siquidem is Rusticus censum annuum impendens non fuerit, which I think in English is, provided, that that Country-man doth not sit on Rented Land: for But in the old English, as well as to this day in the present Scotch, signifies, without, or wanting, &c. There I find gafollande is turned into Census; which is as much as I have need to make use of, or take notice of. In the Laws of King Aethelstan it is thus, ƿealisc monnes, &c. {that} He ðam cyng gafol-gyldan maeg, which is thus Translated; Wallus si in eas opes creverit, &c. ut annuum Regi censum pendat; which is, if a Welsh-man increaseth so in Riches, &c. that he can or might yield a yearly Rent to the King: Such a one perhaps as we call a Subsidy man, or a Man in the King's Books. So in the sixth of King Ina's Laws, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which is, if any one Fights in the House of one that payes Rent; and in the 22. of the same King, that so often recited Law; ƿealH gafolgylda Hund tƿ lftig ••cill, which is turned into Latin, thus; * 1.72 Wallus censum pendens annuum, &c. in the same sense

is the word Gavel-man cited by * 1.73 M^r. S. which hath no more in signification than one that payes a Rent; and relates not at all to the Tenure; and I believe if seriously looked into, that many of these compounds, who have this similitude of sounds, do not hold under, or by the Tenure of partition; which if so, here were nomen sine re; and this last may be a Term as significant for any one that payes a rent in Cumberland, as in Kent. In this recited page it is, that M^r. S. hath rightly fixed his Gavel; for (saith he) one thing more I have to note be∣fore I leave Gable, Gavel, &c. that with Mala it fignifies Rents, Servi∣ces or Customs; and in his 35^th. page he addeth, by this time the Reader is satisfied (I hope saith he) touch∣ing the true construction of Gavel, Gafol, Gable, or how ever else he shall chance to find it written, in each importing Cens, (i. e.) a Rent, either in Money, Provision or Works. To conclude, I am of the same opinion with M^r. S. that these intermix∣tures and compounds do all hold a reference to gafol, Gablum, or Gabulum; that all of them have one and the same exposition; yet that none of them have any rela∣tion to the Tenure of partition, or to any other Tenure

besides the Renting or paying of a Rent for Land, &c. There is only one thing more left to be considered, which may seem to have in it some strength; and that is in the 31. page of M^r. S. where he cites this, & postea per quandam consuetudinem quae vocatur Gavelate, usita∣tam in Comitatu isto (viz. Kanc) de terris & tenementis de Gavelkynde, pro redditibus & servitiis quae à retro fu∣erint de eisdem; per plures annos; devenerunt eaedem terrae in manus cujusdam Abbatis, &c. Now this consuetudo de Gavelate used in the Lands and Tenements held in Gavelkind, seems the one to have relation to the other; for M^r. S. in the beginning of that Paragraph tells us, that this Gavelate was not a Reut or a Service, but beto∣keneth a Rent or a Service with-held, denied or detained, causing the Forfeiture of the Tenement to the Lord; and whereas that Record saith, it was used in that County upon Lands and Tenements held in Gavelkind; Sir Ed∣ward Coke (as M^r. S. himself cites him) saith; Gave∣letum, is as much as to say, as to cease or let to pay the Rent; Breve de Gavelleto in London, est Breve de cessavit in Biennium, &c. pro redditu ibidem, quia Tenementa fu∣erunt indistringibilia. So that this Brief lay in London as well as Kent; and Minshew in his Dictionary upon the word Gavelet exemplifies it by a Case: That if any Tenant in Gavelkind, with-hold his Rent and his Services, of the Tenement which he holdeth of his Lord; let the Lord seek by the award of his Court from three weeks to three weeks, to find some distress upon the Tenements untill the fourth Court, alwayes with witnesses; and if within that time, he can find no distress in that Tenement, whereby he may have Justice of his Tenant, then at the fourth Court,

let it be awarded; that he shall take that Tenement into his hand in the name of a distress, as if it were an Ox or a Cow; and let him keep it a year and a day in his hand, without manuring it; within which term, if the Tenant come and pay his arrearages, and make reasonable amends for the with∣holding, then let him have and enjoy his Tenement as his Ancestors and he before held it; and if he do not come be∣fore the year and the day be past, then let the Lord goe to the next County Court, with his witnesses of his own Court, and pronounce there this process to have further witnesses, and by the award of his Court (after the County Court holden) he shall enter and manare in those Lands and Tenements as in his own; and if the Tenant come afterwards and will re∣have his Tenements; and hold them as he aid before, let him make agreement with the Lord; according as it is an∣tiently said,

Nighesith yeld and Nighe∣sith geld. (i. e.)

• Let him nine times pay, and
• Nine times repay.

Hath he not since any thing given? nor hath he not since any thing paid? let him pay V. lib. for his errour, before he become Tenant or Holder again. See hereof, 10 Hen. 3. Fitz. Cessavit. 60. & statute 10. Edw. 2. of Gavelet in London. In the Collection of Statutes London 2. matter much tending to this purpose; that by this word Gavelet, the Lord shall have the Land for the Ceasing of the Tenant. I have read much to this purpose in M^r. Lambards peram∣bulation of Kent; but the whole hereof, relates to a Writ of Recovery for default or non-payment of Gafol or Gable, or Rent; the word Gavelet which is nothing but the let,

hindrance or with-holding of Gavel, Gable or Rent; which Writ runs in London as well as in Kent; and all of it, nothing to our Tenure in Question. To the same pur∣pose is that which M^r. S. urgeth in his 12^th. page; where he gives a Learned exposition; which serves for a fortification as well as an explanation upon the word Gafol; which he describes varied in the Dialect, * 1.74 being written, gafol, gavel, gaful, and gafel, and shews how it passes in Matth. 17. Vers. 24, & 2, and cap. 22. vers. 17, & 19. to signifie Tribute; which I think may prove an acceptation thereof naturally enough; and in Matth. 25. vers. 27. it serveth to express advantage or usury; and in King Withreds Laws of S^r. Henry Spelmans Edi∣tion of his antient Councils, it is expounded to us, by what it is commonly received Redditus vel persio; and M^r. Selden in his notes upon Eadmerus, renders geƿ••••ic gaful, to signifie Solitus census; the wonted or usual Payment or Rent. But M^r. S. concludes thus. To be short (saith he) Gafol is a word, which as Gablum in Domesdey book, the skilfull in the Saxon tongue (with Sir Henry Spel∣man else where) turn by what Gabella is expounded abroad, viz. vectigal, portorium, Tributum, exactio, census, &c. in Latine; but in English with Verstegan, Tribute, Tax or Custome, whereunto Mr. Lambard and Sir Edward Coke agree; upon which and to all M^r. S. craves leave to add Rent, which I shall not in any wise deny him; provided, as I said before, he will be contented with that exposi∣tion to signifie Rent, and not go about for the sound sake to impose it on the Tenure; for in this I would begg an information, or rather satisfaction, whether Gavel∣kind-land may not be, and is not held without Rent? which if it be found to be, as I know it is generally

used in Urchenfield, and perhaps in other places also, then doth it destroy the very nature of the Etymologye. But with this part, upon the mistake of the word Gavel, in those compounds mentioned, I have spoken sufficient∣ly; and further I will not trouble the Readers patience about it. In the next place here are

CHAP. X.

Several Deeds cited by M^r. S. that have their Te∣nenda's ad Gavilikendam examined and ex∣pounded.

I Am constrained to run over the Examination of se∣veral Deeds produced in Transcript by M^r. S. and having finished the Discourse of the word Single, and in Composition, I am come to experiment the Tryal of it in the Term proper, with its affix, of which M^r. S. saith, pag. 38. Thus (for example) in a number of Deeds and Conveyances, which I have seen recorded in the leiger-books of the Cathedral at Canterbury, and S^t. Austins late Abbey there; phrased all of them after this manner: Tenendum ad (or, in) Gavelikendam, &c. I presume he hath cited the principallest of them; and if so, then (I assure you) I am not stumbled at any of them; and first, * 1.75 for that Deed of the Sons of Wibaldus; who did grant, Infirmis de Herbaldune unam acram & dimidiam terrae, scil. Langenekre cum fratre suo Wiberto infirmo in perpetuam Eleem••synam; and to Gavelkynd: Reddendo sibi duos denarios, &c. M^r. S. rightly collects from the mold and cast of that Deed, the binding of the Heirs in

relation to their gift; for these Sons of Wibaldus, and their Sons and Heirs, and their Daughters, do all joyn in the alienation of this Acre and an half to Herbaldune Hospital. I will not trouble my self about the Deed to Quarrel at their Scrivener; who seldome found di∣midiam written for dimidium; or believe that he might in his intermixture of (and to Gavel-kynd) make an ig∣norant coherence; we will grant it all right and straight, and take along with us what M^r. S. saith, pag. 51. that such an expression as Tenendum in (or, ad) Gavel-kynd, or the like, was necessary to render the granted Land partible, after the Custome of Gavelkind, without the help of prescription, requisite in partible Land else where out of Kent; and hereupon referrs to the pleading of Burga the wife of Peter de Bending; put down and pub∣lished in the appendix to his book Script. 5. But the first he would have to be a gift or grant in perpetuam, but not in puram Eleemosynam; there is no more than perpe∣tuam; which whether it be or not is nothing to our pur∣pose; but the Reddendum as well as the Tenendum in that Deed hath somewhat not familiar; for it is said there, Reddendo sibi duos denarios, &c. which Sibi hath relation to Wiberto infirmo, the last immediately before mentioned, rather than to any other in that Deed: for all other persons therein comprehended, are by doubles; as, Nos filios Wibaldi Herbwinum & Eilwardum; Here∣des suos Thomam & Paganum; with this also, Hoc conce∣dunt filiae suae Basilia & Hawisia; so that sibi in the sin∣gular number has not relation to any else, but to the infirm Wibert. To him it was that the two pence was to be paid; and the profits of the Lands in common to all the infirm of that house in perpetual Almes; And

to Gavel-kind; that is to say, that all the Brethren of that Hospital should, have the like share and propriety in that Acre and the Half; as the Sons of any one could have, in their Fathers Land of that nature; and if not by this way, I can find no other to make any sense of it: for this clause, And to Gavel kind, hath reference clear∣ly to the concession and Habendum, and not to the Red∣dendum; and if so, who are those that should hold it in Gavelkind? The Infirmes? no; for they were a body (though sickly) that could not dye. Nor the Sons or Grand-children of Wibaldus; for they had divessed them∣selves of this Land, and invested their decrepit brother Wibert, with the rest of the infirmes of that Hospital with it. Nor could the Tenant claim any right by this Deed; for that it hath not relation to any Tenancies; besides, Hospitals in those dayes did not use to create unprose∣table Tenures to themselves; and where Land is said to be held in Gavel-kynd, there is an Estate of Inheritance; they are Syncategorematical or relatives. In the like sense is that Deed, which M^r. S. makes his Script. 〈◊〉〈◊〉 pag. 184. where Radūs From wadidit & concessit 〈◊〉〈◊〉 & Fratribus Hospitalis Sancti Laurentii juxtà Gantunriam (by his Deed) septem acras terrae meae (saith he) tenendas in Gavel-kynde, de me & heredibus meis ••••ber••. & qui••••••, reddendo inde annuatim, mihi vel beredibus meis XLII. denarios, &c. pro hac donatione & confirmatione, dederunt mihi praedicti fratres & heredibus meis quinque Marcas ••ierlingorum. All that I can gather out of this, is, that Ralph Erone sold to the Brethren of S^t. Lawrences Hospi∣tal, seven Acres for five Mark, and reserved a Rent of two and forty pence, the Land to be held of him and his Heirs in Gavel-kind; which, as in the other of Herbal∣dune

so was this to be understood, to be, to the common land 〈…〉〈…〉 and behalf of all the Brethren; for if not so, I desire 〈◊〉〈◊〉 informed how it could ru•• into the Tenu••e of Glaver-l••ynd amongst them any other way? and here also••e•• me caution you, to observe, that in the first Deed it is sai•• to be granted, in perpetuam Eleemosyndm, And 〈…〉〈…〉, and then comes in with the Redden∣dum; so like wise in the second Deed where the Tenon∣dum and the Reddendum are at a distance; that by means thereof it is not probable at all, that Gavel-kynde should have any relation to the Reddenda in either; and seri∣ously considered, doe plainly contain a different use from either Rents or Purchase. But to proceed to those se∣veral grants produced by M^r. S. in relation to the Term as that of R. dei gratia Sancti Augustini Cantuar: * 1.76 shere somewhat is wanting, I believe it should be 〈…〉〈…〉 & ejus••am loci conventus, made to Jordanus ••e S••res much his Heirs of XL. acres of Marsh-land be long∣ing to their Mannour of Cistelet; * 1.77 and that of Alan the Prior and the Convent of Christ-Church in Canterbury un∣to Theb. de Einesford and his Heirs of fourscore Acres of Land in their Lordship of Northocholt, by them to be holden, by rent and Sute of Court at Orpinton; ad Gavi∣likende; * 1.78 as also that of the same Prior and Convent to Stephen de Kinardentone of 〈◊〉〈◊〉. Acres and to his Heirs ad Gaveli••hinde. Again that Deed of Gaufridus the Prior and the Convent of Christ-Church Canterbury to Jo∣ni and his Heirs of a Sheep Pasture in Osmundeseye: Tenend. * 1.79 (say they) de nobissuccessivè ad Gavel-kynde by Rent; and that his Heirs successively shall give de re∣levio LVI^s. and Sute of Court at Leysdum. All these Grantees had by the vertue of these several Grants an in∣statement

into the Tenure of Gavel-kind, which was an Estate of Inheritance, and was to runn in a Parallel line with Lands of the like nature; that is, that the Sons or Children of the Possessor (when Deceased,) should hold those Lands according to the Rule of par∣tition in Gavel-kynd; and there is no difficulty in them, as I can perceive; all that I find is, that the Granters have Created an Estate of the Tenure of Gavel-kind in case there had been none before; none of them to my apprehension carry with them any notable Antiquity. Least of all to the purpose is that, * 1.80 in pag. 178. where it is said, Predecessores Dni. Regis concesserunt Manerium de Wells in com. Cant. postea concessum erat in puram & per∣petuam Elcemosynam; nunquam partitum fuit nec est por∣tibile; that is, it was never parted, nor is partible; to which, all that I can say is, that it never was, nor is like to be (so holding) Gavel-kynd-land. But the passed dis∣course in this Chapter only shews the Nature and Te∣nure of such Lands; And makes nothing at all to the Etymology or the investigation of the true derivation of the word in contest. To conclude, M^r. S. in page 150. draws from his several discourses a double Consectary (as he is pleased to term it.)

1. That the King may hold Land in Gavel-kynde.

I must needs approve of it; and in case the King doth hold such Lands, and at his decease leaves several Sons behind him, they must part it; and that Princes have so done, I have already proved by the several examples of the Princes of Wales, and of the German Empire.

2. That the King holding Land in Gavel-kind, in case he shall grant it away to any Religious House in pu∣ram & perpetuam Eleemosynam (in frank Almoign)

it remaineth notwithstanding partible; as before it came to the Crown; in their hands at least, whom the Religious men shall infeoff with it.

The first part of this I grant: for if such Lands be given to any Religious society they remain partible, as to the profits of them, that is to say, among the So∣ciety; and so doth Land of any other nature whatever, in the same manner being vested, pass into a partible Quality; that is, the whole body having an Interest, all members of that body receive part and share of the benefit: but for any other sort of partition, I cannot fancy how it should be among them. And then again, it doth not necessarily follow, that those that are by this Society interessed with the holding of those Lands under them, should hold them in the Tenure of Gavel∣kind: for by such a Grant, (as I said before) in this Te∣nure of Gavel-kind, the said Society or body divest them∣selves of the fee-simple; and invest the taker with an e∣state of inheritance. And again, this must have a full reference to the Society their manner of granting it; and then it may even as well (if it were formerly Gavel∣kind-land) by their grant receive an extinction of its Te∣nure; for that in such cases (where it is (I say) so ve∣sted) it is wholy depending upon the force of the contract betwixt the persons concerned; and again, this same spe∣cifical Land may so fall out, as to be made the very site of the house, and the gardens of this religious Society or body; and how in such a case it will be capable of par∣tition (except as I before have spoken, in the members their participation of an equal benefit) I know not. The progress exhibits

CHAP. XI.

Some offers at the termination (Kind) affixed in Com∣position to the word Gavel.

MR. S. in his 37^th. page saith, that Gavelkynd is a word compounded of Gavel and Kynd; the latter Syllable whereof commeth, and is contracted of the Saxon word, gecynde; which by several good Authors is ren∣dred, Nature. Mr. S. in his 10^th. page saith, that Gavel is the main part of the word; Which if so, then I hope I have dispatched the main part of my work, and could willingly joyn with Mr. S. in his Exposi∣tion of the latter part; for in what I shall declare my self in this Chapter, shall be only Scepticism. But I am confident of my opinion in the first and main part; and here I must take notice of, and give to Mr. S. his due honour for his ingenuous Ratiocination upon the common received Interpretation of Mr. Lam∣bard, and all those that follow him, concerning the latter part of it, which he would have to signifie Kin∣dred; and that the whole word together is of a Saxon Original, and is, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 that is, give to all the Kindred; which flatly opposeth the very nature of the Tenure; because where such Lands are, that are sub∣ject to this partible quality, the Kindred do not share; nor are they partible at all among them: but in the common case of the failer of Issue, then the next of Kindred in the nearest Line. And in this pretended interpretation, the word Kyn, supposed to be Kindred, doth seem to nullifie by it, the known use of the Te∣nure:

for if the Kindred be to part those Lands, then must it so fall out, that either the Children part them with the Kindred, or the Kindred without the Children; for if the Title by this Denomination be in the Kind∣red, it must be one of the two; and upon serious con∣sideration I would think, that it deserves a Censure for any to affirm that Children are of Kyn to the Fa∣ther; for that Kyndred or Kin betokens a more distan∣tial relation than a Son is to the Father; which (should it take place in that Notion) would carry with it the confusion of Alliances; In Latin Kindred is called Cognatio, quia Cognati, quasi una communiter nati; vel orti ab eodem progenitore. These Cognati or Kindred, that are so distanced, may be said to be Sanguine con∣juncti, and Consanguinei; be cause they proceed from one Progenitor; yet are well known, not to participate of the same privileges with the Children. For the Chil∣dren of one Brother do not divide or part Lands with the Children of another Brother, by this our Tenure; but if the Land should thus pass, then by what Right or Title can the Children expect any part of it? for that according to this interpretation it should pass to the Kindred; and so (as I said before) being eminently implanted in them, it doth plainly seem to Debarr the Children, and Vacate the common use of Partition a∣mong the Sons: which is the more plainly Evicted by this, in that Daughters (in case it be insisted upon in relation to Kindred) are as much of Kindred to the Father as the Sons are; and yet in this Tenure of Par∣tition, the Daughters have commonly no share, when there be Sons existing. Mr. Verstegan, who would willingly (observing some inconveniences in the Lati∣tude

of Mr. Lambards exposition) restrain it; would make (Kynd) to signifie Sons or rather Children; which if in the last, then I say, that Daughters as well as Sons at the same time are very rarely participants in the Partition of Lands together, except in those cases I formerly shew'd. Doctor Powel in his Addita∣ments to the Cambrian History, (which I cited fully before) saith; Here I think fit to say somewhat of the Custom and Tenure of Wales, &c. that is the Division of the Father's Inheritance among all the Sons, commonly called Gavel-kynd; the Doctor writes Gavel in great and large Characters, and Kynd in small; as being Dubious of the Connaturality of them. Gavel, he affirms to be British; but not knowing what to make of Kind, passeth it over in silence. I shall be farr from Peremp∣toriness in my own sentence concerning it. One while I thought it might have been derived from the British word Tennedl, which signifies generatio aut familia; as in that commonly used word Pen-cennedl, which is received and expounded to signifie Princeps Genera∣tionis aut familias, the chief of a Kindred or Blood; who among the Welsh are reverenced and observed, as I told you the Lords or Chiefs of Clans were in the High-lands of Scotland; and so Gavel-kennedl, might signifie Tenura familias aut Generationis: Which that I may bring it a little nearer to the ringing of the pro∣nunciation; is by some reported to have been sounded Tennedh, which with great case in the composition may retreat into Gavel-kynd, and is of the same use in that signification: Somewhat of that manner was an∣tiently observed among the Britains, (though it seems to be lost) for Morgan was a name of great use among

them heretofore, as it is at this day; which signifies, Got of the Sea, * 1.81 as some Criticks in that Language do report; and was thought to be the proper name of that Arch Heretick, who in imitation of this his name was by the Greeks called Pelagius; which termination GAN (in the Welsh name I mean) is the fruit of Genned; from whence with a soft mutation may come the latter part of our word enquired after, viz. Kynd. The other imagination was this, That the Saxons upon their first Co-habitation with the Britains, did borrow many of their words, by which they ex∣pressed the Denominations of places and things; I have already shewed several of them in this Tract, and could produce so many, as that by themselves they would fill a Volume; and not only is there to be found this intermixtion with the Saxon tongue, but also much of the reliques thereof in the very French; (being the remainders of the antient Gallick,) which at this day is the most entirely kept by the Brytains of North-wales; for all things that related to Nobility, to Propriety, to terms of Law, to Customs, to Offices, &c. are in British carried through many ages from the Brytains by the Saxons down to us: The Saxons call some rents Mailes, the same word the Scots use to this day; * 1.82 and is as Mr. S. observes originally British, coming of their Mael, which (saith he) in the Welsh Vocabulary is in Latin rendred, Lucrum, emolumentum, quaestus: as Maelio the Verb, Lucrari, quaestum facere; and yet this Welsh word was not only made Saxon or English, but for the great use they had of it, a sort of Latin also; for we find some Lands were held antiently, per Gablum & malum. The names of Towns were like the antient

Nuptials of which King Edward the Confessour speaks, betwixt the Saxons and Britains; by which they be∣came one Nation. So that the Denominations of an∣tient Cities and Places did, and do, for the most part participate of both; as in Durham, Dunholne, Dor∣chester; the first Syllables being British, the later Saxon. Chester is a Saxon imitation of the Latin Castrum; for which the Brytains had a word of their own, viz. Taer; and all those Denominations of places with the faid Saxon termination of Checter, are Demonstrations of Roman Fortifications in the time of the Brytains, as well as notes of the Saxon intermixtures; of which sort there are very many. In the like manner may it fall out with this Termination of our Word in Contro∣versie; that in case, Kynd should chance to be a Saxon affix, such a mixture would not prove a thing unu∣sua•• in their practice; and may very properly be so Conjoyned. If Kynd, or as it is in the Saxon gecynd, signifie the same thing as in Man-kynd; (and is in La∣tin rendred Genus humanum aut natura) it may then be supposed, that the Saxons meeting with the British Gavel, and understanding it to be their common Tenure, added something to express it to their own appre∣hensions; which being set together would signifie and that properly enough, Genus Tenurae: For that Kynd of Tenure deserv'd to have a Denomination of greatest remark, it being (if not the only) yet the most emi∣nent and most general Tenure amongst them. But having already herein professed * 1.83 Scepticism, I will not attempt to impose upon the Reader either the one or the other; though either of them may pass, without the least injury to the Tenure; leaving it to the inve∣stigations

of some more at leisure: Provided that you conceive me not to have forsaken my ground, or given back in the concernment of the main part of the word, and that which is most material to the original of Gavel; although it had as many Terminations as either a Latin or Greek word declined in its several cases; and therefore leave it, only desiring an acceptation of this Essay in good part; without a Condemnation thereof; untill a better can be produced. And so I pass my Discourse over to treat somewhat

CHAP. XII.

Concerning the German Land-scheutan, and their igno∣rance of Gavel-kynd.

NOtwithstanding the uncertainty we labour under, as to the Termination, in the precedent Chap∣ter; yet in this we shall shew how that the Saxons and the Germans having the use of this partible Tenure from great antiquity, have a particular Denomination for it; not making use of any part of the word in que∣stion; and Mr. S. himself in his 45^th. page writes thus; That, such is the nature and condition of Gavel∣kind-land; being not only subject and lyable to what the Civilians in their phrase are wont to call Judicium; or Actio familiae herciscundae, de communi dividundo; the ••eudists, Adaequatio, Paragium; we in our Language call it Coparcenary-land-shifting, and the like. But withall so subject to it, as that Partition doth always accompany Land of that nature; and is indeed as inseparable from it, as

the contrary from Knights-service-land. What is here called Coparcenary-land-shifting will afford us one glimpse of Light more to our undertaking. For if the Actio de communi dividundo, according to the Civil∣lians, joyned with Adaequatio and Paragium, according to the Feudists; be put in parallel with Land-shifting, they will all prove to express the same thing as Gavel∣kind doth. For although the Germans have this Tenure of Partition, as I have said; yet understand they not, nor know any thing of the word Gavel-kynd, nor of its sound; which had it been of a Saxon pedigree, as∣suredly they would have found out the Kindred and Relation it had to their Speech; and how all Germany should so irrecoverably lose the Denomination of a thing of so great consequence, as this Tenure hath been, and is at this day, and nominate it by a word that hath not any affinity of sound to our Gavel-kynd? and notwithstanding all this, that this Gavel-kynd should be of a Saxon original? and fostered and known in our Island? and after many Centuries of years again Fathered upon them, who neither by themselves, nor by their Neighbours can fasten any acquaintance with it? are Considerations very strange and wonderfull to me. The Tenure they have, and express it (I say) by a genuine and significant word of their own, calling it Land-skiftan, as I find it most commonly written; which some expound to signifie Part-land; and I think is improperly written, Land-shifting. For Lands are as well said to be shifted, when upon the Father's De∣cease they descend to one Son; as when they are par∣ted among many; so that shifting doth not so properly signifie a Partition, as it doth an Alienation. But pro∣perly

I find it to be the procedure of a word in Dutch, named Scheut, (or as in the plural number it is, Scheuten) which is the Denomination for that which the Latines call Surculus; and believe that hence it is, that we in our English call young Twiggs or Branches, Shoots: so that Land-skiftan or Land-scheutan is the same in signification with Gavel-kynd: both signifying Tenura or Terra familias, Progenici, Stirpis aut Surcu∣lorum, which is the Tenure or the Land belonging unto the young Twiggs or Branches of a Family or Generation; If you grant me the intire British interpretation there∣of. But whether it be Denominated, as Mr. S. and others have it, Land-shifting, or this way which I ad∣here unto, I will not make it my business, about it to contend; only let me re-mind you, that this Custom is so farr and freely owned among the Germans, even among their Princes, in relation to the Dividing and Parting the Lands of their Principalities, as ever it hath been in former times among the Welsh; and that all those other Tenures by which Lands are now held, are to be reckoned and esteemed but as so many Intruders and Novices over all Europe; they being for the most part the effects of the policies of Conquerours, for the more secure Settlements of their Militia's. Which ushers in the matter of the next Chapter, which shall be to shew

CHAP. XIII.

When and for what Reasons Primogeniture had the pre∣ference.

ALthough this Theam might give me occasion to look very far backwards, to the first granting preference to Primogeniture; yet I shall undertake no further than to discourse upon it, in contemplation of what M^r. S. saith in his page, viz. The Conqueror con∣sented to the succession of the Eldest Son alone, partly for his own and the Realms better defence and strengthning, and partly for the upholding and maintenance of Gentile fami∣lyes. Which if true, then it was that primogeniture was first set into a peculiar esteem and account; and this an innovation of the Norman Conqueror; and our Gavel∣kind probably the general use before. But in this Case we had best use moderation, and admit that nei∣ther the one nor the other had in those times the sole pre-eminence and singularity; but as there were di∣vers uses in forfeitures under West-Saxen laege, Dane-laege and Merchen-laege; so I believe that there were then several Customes, and usages as to the descending of In∣heritances; all of which may with small curtesie be allowed to be according both to Law and Custome; for Sir Edward Coke upon Littleton, in the place there∣upon cited by M^r. S. to confirm his assumption, saith: Qui prior est tempore potior est jure; and affirms that in King Alfreds time, Knights fees descended to the Eldest Son, and gives this as the reason, for that by division of such fees between Males the defence of the Realm might be

weakned; but in those dayes Soccage-fee was divided be∣tween the heir Males; and here Sir Edward Coke is of the opinion that it was the general Custome of all England; and so continued, till by fractions it should seem that the military settlements were infringed. And to streng∣then this opinion, he introduceth Glanvill; of which words M^r. S. hath also made use in his book, and are thus. Cum quis haereditatem babens moriatur, &c. si plures reliquerit filios••; tunc distin∣guitur, * 1.84 utrum ille fuerit miles sive per feodum militare tenens, aut liber Sockmannus, quia si miles fuerit aut per militiam tenens, tunc secundùm jus Regni Angliae Primogenitus filius Patri succedit in toto, &c. Si verò fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes fi∣lios, &c. The last part of this Paragraph hath reference to secun∣dùm jus Regni Angliae, as well as the first; and this partition seems generally diffused, as if all England had a propriety therein; and out of Fortescue he adds, Haereditas inter Masculos jure Civili est divi∣denda; this relation it hath to the Civil Law; as it shews its Universality, so also its Antiquity. And not∣withstanding, this may be thought not much to the purpose, yet something (that is not much from it) may be from hence observed and collected: as much cer∣tainly as Sir Edward Coke shews in his Chapter of Ville∣nage upon Littleton, concerning a sort of Gavel-kynd in the bearing of Armes; for they (saith he) descend to all the Sons, every Son being a Gentleman alike; which Gen∣try

and Armes do not onely descend to all the Brethren; but also to all their posterity: but jure primogeniturae, the eldest shall bear as a badge of his birth-right his Fathers Armes without any difference; for that as Littleton saith, Sectione—he is the more worthy of blood; but all the younger Brethren shall give several differences; & addi∣tio probat minoritatem. I have onely this to observe, though (I believe it) not unknown to any one, that knows any thing of Tenures (yet perchance it may not be un-necessary to make mention of it) to inform some that have not taken notice of it; and that is of a two∣fold sort of infeoffment found antiently concerning Lands; the one is called Vetus, the other Novum; both of them erections of military services, upon such persons as were thought worthy the degrees of * 1.85 Thanes. The first was that, founded before and by William the Con∣queror; the other was that, which was in erecting be∣twixt the time of William the Conqueror and Henry the third, and in his survey of Knights-fees is called novum feoffamentum. Both I believe spun out of Gavel-kind, for I find

CHAP. XIV.

Partition of Lands by the Saxon Laws; those Lows con∣tinued and confirmed after the Conquest; the cor∣respondence and progression of the British Lan∣guage.

ALl that I have aimed at principally, is to shew that inheritances were antiently and generally parti∣ble,

and would suppose them so, from the most antient inhabitants of our Island, who were the Britains; and so deduce the probability of the denomination of the Tenure (viz. Gavel-kynd) from them. What I have al∣ready said in this matter, I will not trouble the Reader with a repetition thereof; only in this place take no∣tice that the Saxons had their Lands commonly parti∣ble among them; (except it were in their Military Tenures) to which M^r. S. hath subjoyn'd in his 78. page thus: Now (saith he) it is true and not to be denied, that by the Laws of Canutus inheritances were partible; but how? it may be equally (like our Gavel-kind) but it is not so ex∣pressed, nor do the words inforce it. Its ordered there in∣deed, that a partition of the estate be made, in the one, be∣tween, or among the Wife, Children, and next of Kin by the Lord; in the other by the Heirs among themselves; in both not sƿiþe emne, or, rsiþe, efen, i. e. equally; but fsiþe riHte; in the former more explicitely thus; elcum. be þaer mae{that}e, &c. i. e. (according to the old version in Brampton) unicuiquesecundum modum, qui ad eum pertinet. Here is now no equal division spoken of, no equalling the younger with the elder Brethren, or the like; but the estate is to be shifted rƿiþe riHte, i. e. according to right, justly, or if you will (after the old version of the latter Law in Brampton, being the same verbatim with that in M^r. Lambard else∣where) rectè: every one to have his due, haply after a Geo∣metrical, not Arithmetical proportion. M^r. S. saith that it is not to be denied but that they were so; by the Laws of King Canutus. That at which he makes a hesitation, is, because it is not expressed, how they were partible, and would have it to be onely like the Kentish-gavel-kind: for which I cannot imagine there can be any reason

produced, nor Authority found, why it should not be the same; or why the Kentish Gavel-kynd should not be like that in other Countries; but he gathers it and inferrs it from this, for that it is not expressed to be Divided by even or equal Portions, but according to Right; to this I answer, I have shewed before se∣veral sorts of partible Tenures, and none of them op∣posite in Condition or Nature, but that they may all come under the Genus of Gavel-kynd; and all those Partitions, although not by equal Portions, yet are all according to the right of Gavel-kynd, which I think is sufficient to make them appear Members of this Te∣nure. But let us examine under what consideration the Saxon Kings had this Tenure, (as it was diffusive over England) in their Laws. And first of all, those Laws of King Canutus, (wherewith Mr. S. is so ill satisfied) He, after he had very piously taken care for what concerned the Worship of God, by the counsel and advice of the Wise-men of his Kingdome; on ðaem Halga•• midƿintres tid on ƿintanceastre, in the holy Mid-winter-tide at Winchester, (which Mr. Lambard expounds to be Christmas) enacted several Laws with this Proaemium before them: Ðis is ðonne seo ƿorldcunde gerednes. ðeic ƿille mid minan ƿitenan raede. {that} man Heald ofer eal Englaland, that is, This is then the worldly behest; that by the counsel of my Wise men, that men hold over all England; by which we may perceive his Laws had an Universal extent over the whole Kingdome, and them we find to be Built upon the Basis of Partition: So in his 68^th. Law, which is thus rendred, Sive quis incuria, sive morte repentina fuerit intestatò mortuus; Dominus tamen nullam rerum suarum

partem (praeter eam quae jure debetur Hereoti nomine) sibi assumito, verum eas judicio suo uxori liberis & cog∣natione proximis, justè (pro suo cuique jure) distribuito, which in the Original is, Ac beo be His diHte seo aeHte gescyft sƿiþe siHte, þife, & cildan, & neh magon, aelcum be ðaer maeþe de Him togebyrige, which is as I conceive thus; And by his judgment let the Estate be shifted (or rather divided) according to right; Wife, and Children, and next of Kinn, to each one according to that proportion that belongeth to them; this Shifting (if the word signifies so) or Division, must be according to Right. Where by the way note, that the Saxon word to them known was 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and that they made no use of the word Gavel-kynd. But this was a gene∣ral Law, and (as I said before) several places had their several manners and proportions of this Tenure of Partition; yet all those Custom; were to be parted and descend according to Right. We find somewhat to the same purpose in the 70^th. Law of King Canutus; Porrò autem quam maritus sine lite & controversia sedem incoluerit, eam conjux & proles sine controversia possi∣dento: Sin quae in illum lis fuerit illata viventem; eam heredes ad se (perinde atque is vivus) accipiunto; and in the 75^th. Law it is provided, that if any in the Army before or in the presence of his Lord, Dye fighting, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. * 1.86 Let his Heriot be forgiven, and let his Heirs succeed him in his Goods and his paternal Lands, and let it be Shifted or Divided according to Right. Which Law seems to be word for word found among the Laws of Edward the Confessour; where I find, & qui in bello

ante Dominum suum ceciderit, sit hoc interra, sit alibi, sint ei relevationes condonatae, & habeant haeredes ejus pecuniam & terram ejus, sine aliqua diminutione, & rectè dividant inter se. Which Laws did also take place among those that William the Conquerour confirm'd, as in the 36^th. Law that passeth under his name. Si quis intestatus obierit, liberi ejus haereditatem aequaliter divi∣dant. Now the collection from hence lyes naturally thus; that that Law, which generally reacheth to the behoof of his Children, or the Descendants of such as Dye Intestate, is the most genuine Law; for this Law provides, that upon some emergent accidents, as dying Intestate, or in Battel, or some such suddain Chance; that these notwithstanding, the Land shall run in its proper Chanel of Partition, so that these occasions should not attain the power of altering the course thereof; which not meeting with such an Obstruction, would have without any scruple had its natural course of Partition. The like was not only in the Knight-service-land spo∣ken of to be in King Alfred's time, but also in all their Bocland; and other Lands that had the force put upon them by Testaments or Deeds. This partition came yet a little nearer to us; for in the 70^th. Law of Hen. 1. upon the account of Partition or Dividing; Provision is made, that Si mulier absque liberis moriatur, parentes ejus cum marito suo partem suam dividant; by which I understand a Division of parts upon a part be∣fore received. And he that wrote the Glossary to the Saxon Laws, upon the word, Terra ex scripto, saith, Haereditatem vero temporibus illis non (quemadmodum apud nos) solus aetate Maximus adibat, verum ad filios omnes aequaliter fundus lege veniebat, quod illi (viz.

Saxones) Lande-fcyftan dixerunt; & Cantii hac nostra memoria eodem vocabulo to shift Land; id est her∣ciscere & fundum partiri, appellant. By which it seems the proper Kentish word is, Shifting-land; as by this Glossators judgment, who I understand is a Kentish∣man; which, if so, let them be content with their Saxon Land-shifting; and let us alone with our Gavel, unless they will be pleased to own their true * 1.87 Pa∣trons. The Laws I confess that I have lately cited, do rather glance upon the Custom of Partition, because it is supposed, and taken for granted, that that Custom was so Paramount, that there was little need of ex∣pressing thereof, which lies so Couched there, as it doth amongst the Welsh Laws. And are like our common Laws, known to all, yet not expressed: generally re∣ceived, yet not written. In the 78^th. page of Mr. S. (we are still upon the Tenure in question) is cited Davies his Reports, of the Irish custom de Gavel-kind, (which Book I have seen) and to it I say, if the Irish know the word by which Davies denominates the Cu∣stom among them; it further confirms me in my opinion of the British Etymology thereof; * 1.88 for the difference betwixt the two Lan∣guages is not so great, but that we may upon good reason believe they were one and the same an∣tiently; nor so great a Disso∣nancy at this day between them, but that the foot∣steps

of a former union, may easily be observed; and * 1.89 the progress of Languages is a thing very well worth the observat on. For by sundry, dis∣courses with several intelligent persons, concern'd in the Langua∣ges, and somewhat upon my own Observation, I can make it out, that if one of Base Brytany, meets a Cornish-man, that speaks the Cor∣nish, they with small difficulty will each understand the other; the very Denomination of that Coun∣try being British, (for Armorica is derived from At Mor, which hath no signification but from the Welsh, and is upon or near the Sea, with which the situation also agrees) let a Cornish-man pass into Wales, he will understand the Welsh, and be understood of them. A Welsh-man meeting with an Inhabitant of the Isle of Man, that speaks the Manc-language, both of them will understand one the others meaning. An Inhabitant of this Isle (a Menavian) meets in Ireland among the Irish an agreeable Intelligence; and the Irish with great facility communicate with the High-land Scots in their several Dialects intelligibly. So that animad∣verting this Progression, as I have linked them, much may be inferred of Originals, Customs and Manners; among all of them having found the foot-steps of Gavel-kind; by the Saxons deduced to the Normans, and not altered by them. Concerning which, I have been larger before; and in my next Chapter shew

CHAP. XV.

That in the Term (Gavelkynd) is not Partition; Of free Socage and other Customs; concerning Gavelkynd extra Cantium; of the Antiquity of the Laws of Howel∣dha.

THat in the Term (viz. Gavel-kynd) there is not any Partition, is plain, both by what Mr. S. apprehends of it, thinking it to be derived from Rent, and to signifie Genus Gabli, vel redditus; nor, by what I have given in, and exhited for my sentence, that it signifies Tenura the ••enure, (per eminentiam) of the Family, or Genus Tenurae, and so consequently may serve for an answer to one part of the question put by Mr. S. in his 42^d. page, where he saith, Our next enquiry shall be whether Partition owe it self to Gavel∣kind; either ex vi Termini or ratione rei? and gives his opinion with me, that ex vi Termini, partition doth not owe it self to Gavel-kynd; and in some considerable cases, it is not enforced in the very use of it; for, in case a Father Dyes possessed or seised of such partible Gavel-kynd-land, and leaves but one Son behind him, this Land is not then to be parted; which if it had been, ex vi Termini, it must have either ceased its use and force, or else there must have been found out some other near Relations with whom the sole Heir had been constrained to a Partition; the like whereof I could never read or hear was ever done. This was very well understood by Littleton, * 1.90 and explained by Sir Edward Coke, in that Chapter of Parceners per le Custome; for

Sons (saith Sir Edward) are Parceners in respect of the Custom of the Fee or Inheritance, and not in respect of their persons, as Daughters and Sisters be, &c. And out of Bracton citeth this; Et sunt participes, quasi partem capientes, &c. ratione ipsius rei quae partibilis est; & non ratione personarum, quae non sunt quasi unus haeres & unum corpus, sed diversi haeredes, ubi tenemen∣tum partibile est inter plures cohaeredes petentes, qui de∣scendunt de eodem stipite, semper solent dividi ab antiquo; for such Lands belonging to a Family, relate only to the Males, (in case of their existency); but if not, then to the Females. So also we have it observed by Glanvil, who denominates such as hold by this Tenure of Partition, Liberi Sokemanni, of whom he writeth; quibus mortuis, dividetur hereditas inter omnes filios; si fuerit Socagium, & id antiquitùs divisum; salvo ta∣men capitali messuagio primogenito pro dignitate Aesneciae suae; ita tamen quod in aliis rebus satisfaciet aliis ad valentiam. Si vero non fuerit antiquitùs divisum, tunc primogenitus secundùm Quorundam consuetudinem totam haereditatem obtinebit; secundùm autem quorundam con∣suetudinem, postnatus filius, heres est. I shall not en∣force any thing from the Custom of preference of Pri∣mogeniture to Socage Lands, which were such as were non antiquitùs divisae, and those to be but secundùm consuetudinem Quorundam; which expression signifies a diminution, both in respect of Age and Community; nor of the Tenure which we call Burgh-English; which, whether brought in by the Saxons, (because of its name) I cannot tell: But concerning that which Glanvil setteth down as the most common Custom of the Kingdome, and most antient, (as in his time it

was received to be) and the intent of his Paragraph; which is, to Counter-distinguish the Tenure of this par∣tible Land, from the Tenures of the Military fees, where the eldest Son in England still Inherits; of which sort there were not so many, when William the Conque∣rour took his Survey of the Kingdome, as after times did bring them unto; when that no Land was per∣mitted to be held free from the Military tenure; not excepting the very Lands of the Church: But he being so plain, I shall not trouble you with a Comment; and return to the subject of this Chapter, which is, that Partition ex vi Termini doth not owe it self to Gavel∣kind; no, rather Gavel-kind to Partition; for I believe, when at first this Partition was used and received into a common Custom, those Users were enforced and obliged to find and invent a word by which their Cu∣stom might be intelligibly expressed, rather than to make a Custom to the signification of the word; but where the Custom of Dividing under the Title and Term of Gavel-kind was once received and setled with its appurtenances, there it inferrs Partition, and passeth as a common Law; not only in Kent, but in Christendome also. To what Mr. S. saith by way of objection out of Bracton; that he is express for a Partition, ratione rei vel ratione Terrae; if by it, Relation is had to the condition and quality of the Land, in saying, * 1.91 Sicut de Gavel-kynd, vel alibi ubi terra partibilis est ratione terrae; then would I be informed what they mean by this ratione terrae; for if the ratio rei signifies the Te∣nure, then the ratio terrae, should have relation to the nature of the Soyl; for sure it cannot have relation to the distance or difference by the Caelestial degrees: I can∣not

(I confess) apprehend the nicety of the distin∣ction; and therefore pass to that which Mr. * 1.92 S. saith; that that property alone of the Lands being Gavel-kynd, or so called, doth not suffice to render it Partible; if the question be so farr obtained and gran∣ted, that Gavel-kind signifies natura redditus; and that that, is the genuine Etymology thereof; then must it be true, and conceded: But on the contrary, I know much Gavel-kynd Land, that is not subjected to Rent; how will it then answer the Tenures derivation and sig∣nification? whereas in this exposition of the ••erm that I have given, (viz. Tenura progenici aut familias) Divi∣sion significantly resides in its name and nature; I am sure the inference is so strong, that where there is Gavel-kynd, there is Partition: and it may as properly be said, that the Tenure of Burgh-English, by the in∣trinsecal Valew of its Name, doth not import, the youngest Son should Inherit the Land; as that Gavel∣kind doth not inferr a regular participation upon Par∣tition by the Parceners, which to strengthen it the more, is now become an antient Custom; and this Sir * 1.93 Edward Coke saith, is one of the main Triangles of the Laws of England; these Laws being divided into Common-law, Statute-law, and Custom; of the last of which he addeth out of Bracton; that Consuetudo quandoque pro lege servatur, in partibus ubi fuerit more utentium approbata; & vicem leg is obtinet: long ae vi enim tempor is usus & consuetudinis, non est vilis Autoritas, longa possessio (sicut ejus) parit jus possidendi & tollit actionem vero Domino: So that its continuance for so long a time to be a Custom, gives it a Privilege with∣out any Impropriety of Speech to be called a Law,

notwithstanding the several usages in this Tenure; and although Mr. S. seems startled at what is before cited out of Bracton; Sicut de Gavel-kynd vel ALIBI, ubi terra est partibilis, &c. there is no reason that this Alibi should so offend him, as to call it an improper expression; for I believe there is scarce a County in England, but hath this Tenure more or less; besides what places I have already cited in this discourse; I know there is much in Shropshire; yet take one more upon the other side of the Kingdome, in the County of Norfolk, which is thus Recorded in the Chamberlains Office of the Exchequer. Placita coram Rege. Anno 20. Edw. 3. Term. Hillar. Norfol. 97. Ass^s. in qua Johs Buxkyn chr. profert scriptum relaxationis Johis de Picke∣ring, & Willielmi fratris ejus Gallicè factum de me∣dietat. vi. Mess. &c. & iiii. Tercellorum in Clipesby, Billokby, &c. In hoc placito patet quod Tenementa quae sunt de feodo de Pickering sunt partibilia inter Masculos; So that turn into what part of the Kingdome you please, I believe you will find Gavel-kind. But Mr. S. proceeds by way of wonder, saying, We are told that this Custom of Gavelkynd Partition takes place (hath done at least) in other Counties; and Sir Edward Coke in the same manner, hath lapsed into the like mis-ap∣prehension; for upon these words of Littleton: En le Countie de Kent, he makes this note; for that (saith he) in no County of England, Lands at this day be of the nature of Gavel-kind of common right, saving in Kent only; But yet (he presently adds) in divers parts of England, within divers Mannours and Seigniories, the like Custom is in force; for my part I must acknowledge I am to seek, as to the neatness of the distinction;

first (saying) that no County of England hath Land, (it is not said all the Land of the County) of the na∣ture of Gavel-kind of common right; and yet that in divers parts of England, within divers Mannours and Seigniories the like Custom is in force: if the Salvo lyes in this word, viz. of common right. I would wil∣lingly be satisfied, whether Lands in Gavel-kind do not pass, both according to common Right as well as com∣mon Law: Certain it is, that the common Law of that County, Hundred or Seigniory, where Gavel-kynd is in force, makes the Children Participants of that Land by common Right; and it is the common Law, by which that common Right is or can be claimed. In Pages 53. and 54. Mr. S. speaking of what Littleton instanceth in North-wales, that this Custom of Gavel-kind par∣tition taketh place; besides Kent; he introduceth it from that Authority, not as his faith and belief, but with a, We are told. But let not the Scruple be so great, when I declare what before I have shew'd; that it is in South-wales as well as North-wales; and in other places as well as there. But then he proceeds to que∣stion, thus; What custom I pray? if you enquire of Littleton, he will tell you it is the Custom of Gavel∣kind partition; or enquire of the Customers; you will find them no Strangers to the Denomination of Gavel; and the word in use among them, even to express the Tenure. Littleton's words are these, Auxy tiel custome est en autres Lieux Dengleterr. & auxy tiel custome est en North-gales, &c. which is as much as to say; Also such Custom (he writes of Parceners by Custom, which is Gavel-kind there) is in other places of England, and also such Custom is in North-wales, &c. and the like Custom

as our Author mentions to be in North-wales, he saith, was also in Ireland; for there (he adds) the Lands also (which is one mark of the antient Brittons, mark this) were of the nature of Gavel-kind; for that by their Brehon-law, the Bastards inherited with their Legitimate sons; but as to the Bastards, that Custom was abolished. Agreeing with Littleton in this point, see an old Sta∣tute. Aliter usitatum est in Wallia quam in Anglia, quo ad successionem haereditatis, eo quod haereditas partibilis est inter haeredes maseulos, à tempore cujus non extitit memoria partibilis extitit, Dominus Rex non vult quod consuetudo illa abrogetur, sed quod haereditates remaneant partibiles inter consimiles haeredes sicut fieri consuevit; & fiat partitio illius sicut fieri consuevit. To that which Sir Edward Coke wonders at, which is the Participation of Bastards by the Brehon-law in the Lands that are partible; I have already shewn, it was a Law or a Custom among the Britains: But Sir Edward con∣cludes, that Gavel-kynd Custom in Ireland is one mark of the antient Brittons; Let not therefore our Profes∣sors and Students of the Law, take it ill, that I have thus trespassed upon their Province; since all I have said, receives so great a Buttress or Prop by these words of Sir Edward Coke. The coherence and agreement betwixt the British and Hybernian Laws, makes me think that antiently they were Governed by one and the same Law; which if granted, then have we one Argument more to re-inforce the Antiquity of those, that were only refreshed by Howel-dha. But because I have had occasion so often to mention these Welsh Laws, ascribed to Howel-dha; (as the Norman Kings did our Laws to Edward the Confessour, and as Edward

the Confessour did the same Laws to his Grand-father Edgar, &c.) I think it not amifs to give the Reader some account thereof: They are mentioned by all * 1.94 Writers of British antiquity with a great respect, who generally agree that they were taken out of the Laws of Mulmutius Dunwallo; who is generally ac∣knowledged the great Legislator of the Brytains; of whom, take what Balaeus writes, placing him in his Catalogue of Writers, with this Encomiasticon: Dun∣vallo Molmutius, Clotenis Cornubiensium Ducis filius, sapientia & pulchritudine proavos omnes longe exupe∣rans, devictis Loegriae, Cambriae & Albaniae Tyrannis, solus apud Brytannos Tertius & Vicesimus Rex imperabat, &c. Protulitque tandem sermone suo vulgari Brytannico, pro his perpetuo servandis

Statuta Municipalia — lib. 1.

Leges judiciarias — lib. 1.

Has post mortem patris, Belinus Rex confirmavit, jussitque Molmutinas vocari. Easdem etiam Gildas Cambrius, in la∣tinum sermonem transtulit, & Alphredus Magnus in Sax∣onicum Fatum obivit postquam 40 annis magnificè regna∣vit, ad Templum Concordiae, quod condiderat ••renovanti sepultus, &c. ante servatorem natum, 430. King Howel (Sirnamed dda, i. e.) the good, who flourished in the year of Christ 942. perceiving his Brytains under a kind of constraint; being pent up in the two western extre∣mities of the Island; is said to have made new Laws, and fitted the old to the exigence and behoof of those times; and D^r. Powel in his Additaments to the Cambrian Hi∣story, saith, That he did reform the Laws and Customes of Wales: then it seems that these Laws, were Laws; and these Customes, were Customes before the Reign of

Howel; who only took upon him Reformation, not al∣teration or innovation: and the Doctor further discour∣sing of those Referrees, (to whom Howel had committed the care of this work; who for that end were to meet at a place called Ty-gwyn in Caermarthenshire;) saith, these had in charge to examine the old Laws and Customes of Wales, and to gather out of those, such as were meet for the Government of the Countrey; who fully did discharge their Commission; thus: in reteining those that were wholsome and profitable: expounding the ambiguous and doubtfull; and abrogating the superfluous and hurtfull. By what hath been here said it seems these Laws are some what im∣properly ascribed to Howel-dha; since the charge to the Referrees was to examine and gather the old-Lans; and the accomplisnment of that charge was reteining, ex∣pounding and abrogating; no mention at all of introdu∣cing any new Laws or Customes; this considered, with the turmoyls the Brytains had from the time of Julius Cae∣sar to the Reign of Howel-dha; and observing their un∣setled fluctuating conditions from time to time through all those Ages, may afford us sufficient reason to sub∣joyn; that these in probability were those antient con∣stitutions, Laws and Customes, which without any diffi∣culty may be allowed to be the procedure of the legi∣slature of Mulmutius Dunwalle. Other M S. Copies thereof I understand to be in the Custody of some Welsh Gentlemen; one whereof is in Welsh and Latine one sot anent the other. My Copy, bestowed upon me some few years since, hath the initial Letters of each Law, handsomely rubricated; and carrieth antiquity in the transcript thereof: among whom I observe this Gavel or Tenure of Partition is made the very hinge or Axis,

upon which the whole body of them move. I think it will not be taken amiss if I transcribe one more, that carries with it not onely partition, but also the very manner of it, prescribed so antiently, and it is this:

Cumfratres inter se hereditatem dividant; * 1.95 Tydyn & edificia potris & octo acre terre cedent juniori, cum calde∣rio, Securi, & cultro sui patris; hec tria non potest pater nisi Juniori dare; & si in vadimonia sint data, possunt re∣dimi & nunquam amitti: * 1.96 quilibet frater debet Tydyn &; octo acras: Junior debet dividere hereditatem inter fra∣tres; senior autem primò eligere debet; postea secundùm aetatem suam unusquisque ad minorem.

In like manner there are certain Principals (for so they call them) in Urchenfield, that (like heir-looms) pass to the Eldest (and herein, the Welsh and this doth dis∣agree) and are not subject to partition; such as is the best beast of any sort; the best bed and furniture; the best table, the best dish, &c. which are like the caldron, hat∣chet and knife, that cannot by the aforecited Law be given away from the youngest Son, nor so much as set to pawn: by which Law it is provided, that after the set∣ting out of eight acres with the Fathers Tenement or dwelling house, then is the partition to be made by the youngest Son: the Eldest and so the rest according to seniority first making their choice. Here are two diffe∣rent usages in the same Tenure of partition, and no won∣der is it that we find in that old forementioned Statute, Aliter usitatum est in Wallia quam in Anglia; when that the different usages in England are so many; but this Aliter usitatum est, must not be imagined to argue that in England it was not at any time used; the Aliter re∣ferrs to the time when the Statute was enacted: yet this

notwithstanding M^r. S. would not have it Gavel-kynd custome taken in its true, plenary and compleat acception; here be many qualifications, but yet (not to repeat what I formerly upon this urged) it will prove to be the true, plenary and compleat acception of the custome that is taken and received in other places extra Cantium, ha∣ving all those qualities and conditions that are compre∣hended in that used in Kent; which to avoid repetition I shall pass over, and inform you how that

CHAP. XVI.

The Changes very considerable from the Tenure of Vil∣lenage to the Tenure of Gavel-kind.

Mr. S. having several times met with Deeds that express the change of Lands held in Villenage into Gavelkind; I think it not amiss to shew of what consequence this exchange was. He, in his 58^th. page, saith: 'Tis true indeed at this day and time out of mind (haply from Richard the seconds time) such servile works (properly called villein-services) have been, as they still are, intermitted, or rather quite ceased; insomuch as all our Gavel-kynd-land, in point of service, now differs nothing from free Socage: being such ubi fit servitium in denariis. That there were changes out of Villenage Tenures into o∣thers, more free, and less servile, is frequently to be found; but by that to lay any force upon the in erpreta∣tion or Etymologye of the word; or that upon the account of those citations brought in by M^r. S. it should signi∣fie Genus gabli aut redditus; because there was a tent

fixed upon the change: I cannot yield unto it. To what he observes in his 59^th. page, out of the Customal of Eastry Mannour in Kent, of the changing Octo Cotarii pro Gavel-kende; since that Gavel-kind in Kent is received as a Tenure far less servile, than their ordinary Villenage, this change, I say, was very considerable, and did well deserve, a sum of money in Gersum to the Lord; for that these Cotarii before this change, being by Tenure Villeins, and so consequently their Lands not descenda∣ble to their Children; their persons, not scarce their own; their acquisitions got by the sweat of their brows, at the will of the Lord, by this change these co∣tarii being invested into a propriety of this Land; and this Land made to descend as in Gavelkind; the muta∣tion was very advantagious to the occupant. But yet there appears somewhat further to me to confirm my affirmation; and 'tis thus to be considered: Mutati sunt octo Cotarii Pro Gave-kende, Medleferme tenet unum mes∣suagium, tres acras, quae solent esse cotar, modo reddit XL. den. de Gablo. These Cotarii had their Lands changed into Gavel-kend & Medleferm tenet unum messuagium, que solent esse Cotarii; modo reddit XL. den. de Gablo. They are changed into the Tenure of Gavelkind; and pay rent XL. den. de Gablo. this last, notwithstanding the propinquity of sound cannot have any relation to Gavel-kende; for then it had been a Tautologie; but Gavel-kind and Gablum are set forth into different and distinct uses. The Tenure was changed into Gavel-kind, with the reservation of an annual Rent of XL. den. de Gablo; that is to say, upon the account of that imposi∣tion made at the agreement; by way of acknowledge∣ment for creating this Land, Gavel-kind-land. The

last hath relation to the rent reserved and the acknow∣ledgement, the other to the manner of holding in rela∣tion to the change, and to the future descent. So like∣wise is that other citation out of the Archbishops ac∣compt-roll; in the year 1230. where it is thus entred, & d•• XIII^s. IV^d. de fine Cotariorum, ut Coteriae suae po∣nerentur adredditum; that is to say, that their Cotages may be fixed and certain in relation to their Gables or Reat, for which they paid a fine; whereas the first cita∣tion had relation both to Tenure and Rent. I shall now take my progress northward, and inform you, that there is also as the remainder of the antient planters

CHAP. XVII.

Gavel-kind in Scotland; when the English tongue and the Customes were first planted in Scotland.

MR. S. in his 53^d. page, reports That the Tenure of Gavel-kynd in other Countreys besides Kent, is a custome indeed; but yet like to that in Scottish Socage Land; to which he produceth as a Test. Skenaeus. I find by M^r. S. that Gavel-kind shall be permitted in other Countreys to be like unto that in Wales, like that in Ireland, like to Scottish Socage-land, rather than like to it self or to the same. * 1.97 What the manner of the Scottish-Socage∣land is, or hath been antiently in Scotland, I am not cer∣tain; but of this I am assured, that there are sevcral Ma••nours heretofore belonging to certain Bishops of Scotland, where there is the same usage of partition of Lands as in Gavel-kind; which shews that those Lands

belonging in those antient times to the Church did not feel the severity of the War; but enjoyed this Custome and Tenure from their most antient proprietors. Which is also plainly to be perceived by the retention of this Te∣nure (yet in force) amongst the antient Britains of the Isles; who by reason of their site were most free from the fury of the War. I call them Brytains (though now they are called High-landers) because upon tryal of words and denominations of places, I find that Lan∣guage and the British so cohaerent, as that there is not much difference between them to a serious observer, (as I have before treated) consideration being had to such words as have suffered by the Saxon converse. For this Island at its first plantation, did certainly upon the increase of families, who first setled in the Easternmost parts thereof, remove their increase Westward and Northward, till such time as by this means both Corn∣wall and the Orcades were also planted; and then the Saxons in process of time inforced the Brytains to leave these their antient Seats in the Eastern parts of the Isle; (yet not all (as I shewed before) who retired by their force either into Cornwall, Wales, the Scottish High∣lands, or Base Britainy in France, where they in their off∣spring do occupye these places, (with Ireland also) un∣to this day. There lyes a large Island named Lewis, belonging to the Earl of Seaforth, between the Hebrides and the Orcad••s; which wholy holds by this Tenure of partition; by what name there called, I could not un∣derstand, for their Language there, is Irish-British; but if according to M^r. S. the name were Saxon in its ori∣ginal, what hinders, but that all Countreys where the Saxon Language is in use, should have the knowledge

of the word? and upon this ground it is, that I may with moroprobability (è contra) inferr; that because it is not so universally known in those places where the Saxon tongue is spoken, it administers more reason to believe and conceive it should have another origine; than to be so easily lost among the very users of the Language; and in no such place to be found (as M^r. S. would have us believe) but within the Septs of Kent. The time of planting the Saxon Customes in Scotland is difficult to be known; but if the planting the Language argues any probability of the planting of Customes; then we had best make the time of the planting the Sax∣on tongue the matter of our enquiry; thence being able probably to deduce, that at that time the Customes were received: for it was far otherwise in the Saxon settlement in Scotland than in England. For here they planted and setled with the Brytains; there they drove out the Picts totally, and seated themselves in their pla∣ces; upon which account it was, that they not having a∣ny persons with whom they might co-inhabit, and so participate of their Customes, were upon their settle∣ment constrained to create new Customes, or else to re∣vive their own, for their best security. I think them much in an errour who affirm that the Identity of Language betwixt us and Scotland, was occasioned from the multitude of the Profugi, or such as for the security of their persons fled under the protection of Malcolm Canmoir King of Scotland in the time of Willi∣am the Conqueror; certainly, considering the old animo∣sities betwixt the two Nations, it would have ill be∣come the curtesie (at least the policy) of the Scotc•• King, to have received so many English guests, a by

their number or multitude might have been able to plant their Language among his people, so different from their own. I must confess, that notwithstanding this national enmity, some he did receive, out of whom, he chose his wife, Margaret Sister to Edgar Etheling; and bestowed Lands upon divers of them. A Catalogue of several of them the Bishop of Rosse hath given to us by their Surnames, of whom he reckons the families of Cal∣der, Lokert, Gordon, Seaton, Lauder, Waun, Meldron, Shaw, Lermount, Libertoun, Straquhin, Rettraye, Dundas, Cockeburne, Myrtom, Inglis, Leslye, Cargill, Cuilra, Mar, Menzeis, Abercrumy, Lindsay, Vaus, Ramsay, Loval, Torris, Preston, Sandelandis, Bissat, Foullis, Wardlou, Maxuell, &c. These are the most and principallest in that account, from whom it cannot be rationally expec∣ted that that Kingdome should re∣ceive a mutation of their * 1.98 Lan∣guage, and therefore I shall fix it upon a greater-probability. Speed saith, that Hengist sent for Octa and Ebissa two principal Captains (a∣mong the Saxons in Germany) who being embarked in forty Pinaces, sailed about the Picts Coasts, wasting the Isles of Orcades, and got many Countreys beyond the Trith; Yet this was not a settle∣ment, for that it is not probable they fixed here at this time; again they had much War with the Saxons, when the Kingdome of Northumberland was planted in their neighbourhood; which may possibly afford some small Knowledge of the Language one to the other, but not enough to confine the Scottish tongue within the Mountains and Highlands of Scotland. What I find in

the Scottish History, written by John Lesley Bishop of Rosse, (a person of great repute, being Embassadour for Mary Queen of Scots in the Court of Queen Elizabeth in Eng∣land,) whose book was Printed at Rome in the year of our Lord 1578. is that, out of which I shall collect this ensuing Discourse. Kenneth the 69^th. King of Scots, who flourished about the year of Christ 840. de∣feated the Picts near Storling; and improving his Victo∣ry into Northumberland, prosecuted them with Fire and Sword so closely, that (you shall have it in his own words) omnes incolas promiscuè nulla sexus habita ratione obtruncat, & Picticum nomen propè extinxit: Qui autem evasere, in Daniam, Norvegiamvè, alii in Northum∣briam se abdiderant; and presently after concludes; Sic Pictorum Gens post Centesimum supra Millesimum ex quo in Albionem venerat annum, tantum non deleta est; here we find the Pictish Nation in Scotland almost expired, who had very long before this been intruders into this part of the Island; and during this Kings life, those Lands upon which they had lived were re-occupied by the old Irish or Brittish inhabitants of the Hills, who were constrained to live in those mountains and fastnesses during the time the Picts kept possession of the Low∣lands; and at that time the Scots changed the names of those Regions given unto them by the Picts and their Princes, into other different appellations. But Kenneth dying in the twentieth year of his Reign, and in the 855. year of Christ, to him succeeded Donald the fifth, who is said to be Germanus Kennethi; for Buchanan observes, that the Custome of Scotland then was, If the Sons of the deceased King were * 1.99 under age, they elected the most aged, and greatest experienced of that Kings line to be

their Prince; so that this Donald was chosen into the Marble-Chair which Kenneth his Predecesser had brought from Argile and placed in Scone (the same that at this present remaineth as a Relique and a Trophy in the Ab∣bey of Westminster) Donald proved very offeminate and vicious, and puft up with his felicity, so over-flowed with vices, that he by them gave the opportunity and occasion of the ruine of that, which Kenneth by his va∣lour had atchieved; the Picts who all this while lay close in Northumberland, understanding his carelessness and loosness, istam suae libertatis asserendae occasionem arri∣pientes (saith the Bishop) cum Auxiliaribus Saxonum & Britannorum in Scotiam irrumpunt. Donaldus, collecto ex∣ercitu, hostibus prope Jedburgum occurrit: initoque prelio, illos in fugam compulit Rex, nostrique milites victoria in∣folentes, ••cctem sequentem, sine excubiis, supi••t; sine or∣dine, sparsi; sine disciplina, negligentes; sine timore, stul∣ti; in luxu & compotationibus consumunt. Hostis de hac re certio•• factus, & ad omnem occasionem intentus, illos media nocte somno vinoque sepul••os, opprimit: interfectisque cir∣citer viginti millibus ipsum Donaldum cum nobilibus do∣mum captivum ducit. Denaldus, ut se in libertatem asse∣rerel, omnem regionem inter Strivelingum & Cludam am∣nem inte jectam, BRITANNIS & SAXO∣NIBUS dedidit; annuaeque pecuniae, tributi nomine pendendae conditione sese astring it. Here I observe, that this los•• that Donald received gave opportunity to the Britains and Saxons their planting themselves in the Low-lands; the Scots being reforced into the High∣lands. But concerning the limits and bounds betwixt these and the Scots, he gives us a particular account; and shews in what parts the one inhabited, and in what

part the others, and informs us that these Angli-Sax∣ones in hujus pugnae memoriam, Strivelingi Arcem prius dirutam iterum extruxerunt: Fortheam quoque ponte mu∣nierunt; quopostea in loco crucem, tanquam victoriae sig∣num sustulerunt; cui ii versus aetatem illam satis redolen∣tes affabrè insculpti sunt,

Ang los à Stotis separat crux ista remot is, Arma hic stant Brutti, stant Scoti sub hac cruce tuti.

Interea Picti, qui Scoticae cladis Auctores fuerant, tota Albione à Saxonibus praecipites ejiciuntur; and to this Bu∣chanan adds; that durae conditiones praepositae, quas tamen praesens rerum status tolerabiles faciebat vidert: ut omni agro qui inter vallum Severi esset, Scoti cederent; ut limites essent, infra Sterlinum, Fortha; infra Britannodunum, Glotta: inter duos amnes, vallum Severi. ANGLI enim & BRITONES agros relictos inter se partiti sunt, Glotta eis dirimente. The Picts for some time, after they had in vain from their Assistants expected Re∣stauration, and seeing themselves deluded, ad Cim∣bros & Scandianos, (id est) ut nunc loquimur, in Da∣niam & Norvegiam transmiserunt. This * 1.100 V••llum Severi was not that Wall which reached from Carlisle to Tinmouth; But that, the Vesti∣gia's whereof are to be seen, ab Abircorno, per Glasgoensem agrum ad Cl••dae fluvii ostia, ubi nunc ca∣strum Dunbritonum situm est. This Wa••l was made of Turf; without it, is at this time remaining a small-Building, not very

Ruinous, which the Scots call Dun a paix; which some there say doth signifie, the Hill or Memorial of peace; about which are still to be seen above twenty Tumuli or Lowes. (Dun indeed in our antient Language sig∣nifies a Hill, by which name the Inhabitants in and about Dunkirk call the adjoyning Hills; and the name of the Town from its situation among those very Hills takes its Denomination) But that noted remain is thought to be a Temple Dedicated to the Deus Termi∣nus, Built by the Romans at their Non plus ultra. These are those parts of Scotland, inhabited by the Saxons and Britains; distinguished from the antient Scots (now called High-landers from their site among the Hills) by the name of Low-landers and Saxons; who setled at this time not only their Language in these parts, but their Customs also; which by my small Observation, seem most of them to be such, as were in use before the Normans invaded the Southern parts of this Island; and no wonder if you find through several Ages among them a succession in the preference of Primogeniture, since their Militia's did require it by reason of their continual Broyls. These atchieve∣ments with their Customs they maintained under a Diversity of Kings, both Scots and Saxons; for the revolutions were very frequent and various: Yet such I say, is the Deduction to be made from this Chapter, that if any thing proves the Tenure to be the antient one of the original Planters, the finding of it in these Corners and Angles, in these remote Islands, and in these privileged Lands of the Bishops, is the greatest argument that I can fancy or imagine. Before I con∣clude, I shall speak a little to some other particulars, and first of

CHAP. XVIII.

Villenage; the meaning of it, the antiquity thereof. Of the antient words, Clown, Pagan, Knave. Of Sur∣names; of Soc and Sac.

MR. S. In his third proposition (in his 61. and 62. pages) taking it for granted, that the Term Gavel-kind is of a Saxon Derivation and Parentage, sixeth its entrance into our Isle with the comming in of the Saxons; concerning which I have formerly Dis∣coursed, and therefore in this place shall pass it by: Only take notice, that he deservedly. Censures, and Confutes such as have laboured to fix its introduction among us, by the comming of the Normans; of which number Mr. Selden hath hapned to be one; as in his illustrations upon Mr. Draitons Poly-olbion; who, out of Spot, (St. Austins Chronicler) relates the Story of the Kentish-men, with their green Boughs, treating with the Norman Conquerour, with which Story many per∣sons have been well pleased; and yet by what I under∣stand of it, it shews rather a procurement of a Con∣firmation of this Custom among the rest, than a Crea∣tion thereof at that time. But he having sufficiently evicted the improbability of that Story, passeth in his 72. and 73. pages, to shew Spots mistake in averring there were no Villains in Kent; which he confutes by a Citation of an antient M S Chartulary in Sir Thomas Cottons Library; and by certain Observations out of the Kentish Survey in Domesdey. The same mistake was lately among many others generally received, as that

Villenage was the Badge of the Norman Conquest; but this I can affirm from my own Reading, that the name carried with it no such Odium and Reproach in Elder times, as it hath done in later Days. For what was Villanus, more than a Villager to such or such a Lord? what their Villenage, but their Duties and ustom-ser∣vices belonging to a Village for the Lord's use? So that the intrinsecal yalow of the word Villain, is only one that inhabits or lives in a Village. The like is of Colo∣nus (a Clown) which is no more than one that Tills then Land so also of Paganus, called in the Saxon Tongue * 1.101 〈…〉〈…〉 from whence came their Ceo••••ep; now called Churls, which is not much different in Denomination from Villanus, and is one that dwells in a Village; and not as we take Pagan commonly, to sig∣nifie one that is of an Ethnical Religion. But to Dis∣couse of them in order as they lye before us; Villain is a Villager, of whom, Minshew upon the word saith, Galli suos rusticos & villicos propriè dicunt villaines; villanus in uit Budaeus, dicitur, quod villae adscriptus, & colonoriae conditioni•••• aut ipse addictus, aut majores sui fuerint; quod tamen nomen loquentium inscitia, in contumeliam jam vertit. But Mr. S. out of the Mir∣roir speaks them thus; Cultivers de fief demorants en villages uplande; car de vill est dit villeine; but (as I said in another place) there is to be found almost in every Leaf in Domesd y-book, not only an account of what Villains were in each Mannour at the time of that Survey; but also how many there were in the time of Edward the Confessour; and as Mr. S. hath observed, there is a name or two found in that Record, that hath much more of Servility than Villenage carries

with it: One of which is there termed Servi, and were more immediately dependant upon the Lord's will, than the Villani were, which were those Nief's or Neif's, they had in antient time, which were Bond∣men, or little better than Slaves. Mr. S. is of opinion, that the word or term Villanus was not in use before the Norman Conquest; for in his 126^th. page he saith, as afore-time the Saxons had their Ceorles, Gebures, Polc∣men, &c. so afterwards the Normans their Villani, Bord∣manni, Cotarii, &c. certainly, these three names the Normans found here: First for the Bordmanni, if that name as well as Cotarii be not Saxon, I know not what is; for the Bordmanni were such as lived upon the Bord∣lands, which were (according to Bracton * 1.102) the De∣mesnes that Lords kept in their hands, to the maintenance of their Board or Table; and Cotarii were Cottagers, such as dwelt in a Cottage, * 1.103 (that is to say) a House without Land belonging to it, and comes from the Saxon word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which is the same with Tugurium and Tectum, in Latin, a ••egendo; so as this is in signi∣fication a Cover or Shelter; because those small Habi∣tations were only made to cover them from the Sun and Weather. I am not ignorant of that great mistake, the whole Current of Writers have run into, those whose Works have been published within these last 300 years; where they generally endeavour to load all the indignities of Tenures of Servility and Vassalage upon this Norman change. I deny not but that some were at that time introduced, especially many Jocular Tenures, which were the effects of private contracts betwixt the Lord and his Tenants; and not of any ge∣neral concernment; but hence I cannot yield to con∣clude,

that all Tenures of Servility were of their in∣troduction. Mr. S. continues in his opinion in the 104^th. page, where he writes; That Fee-simple, Fee-tayl, Fee-farm, Grand & petit Serjeanty, Escuage, Bur∣gage, Villenage, &c. being all of the Norman planta∣tion; and we by them (saith he) at least since their Con∣quest of us brought acquainted with them, &c. perhaps those compounds might be the effect of the consulta∣tions of some of the Kings of the Norman race; but for the word (Fee) Minshew discourseth very well upon it, for (saith he) our antient Lawyers, either not observed from whence the word grew, or at least not suffi∣ciently expressed their knowledge, what it signified among them from whom they took it. Feudum, (whence the word Fief or Fee commeth) signifieth in the German Language, * 1.104 Beneficium cujus nomine opera quaedam gratiae testificandae causa, debentur; and our of Hoto∣man (saith) that by this name go all Lands and Tene∣ments that are held by any acknowledgment of any superi∣ority to any higher Lord; so is all the Land in England (except the Crown land) held, that is of Feudum or Fee: for he that can say most for his Estute, sayeth but this; Seisitus inde in Dominico meo ut de seudo, which is, I am seised of this or that Land or Tenement in my demain as of Fee; which is no more than if he should say, It is my Demain or proper Land after a sort, because it is to me and my Heirs for ever; yet not simply mine, because I hold it in the nature of a benefit from another: and Fee∣tayl as distinguished was not an introduction of the Normans, for that Minshew observes it to have its Ori∣ginal from the Statute of Westm. 2. c. 1. which was made Anno 13. Edw. 1. The word Feud is used fami∣liarly

to this day in the Higher and lower Germanyes. For what concerus grand & petit Serjeanty, I believe the words to be French, and so introduced by the Normans, to express those Services that were due to the Kings of England before the Conquest; such Ser∣vices being reserved by the Saxon Kings. The service of Escuage was before the Norman Conquest, though not known by that name; the like was of Burgage, which is no more than a yearly Rent, whereby men of Cities and Burrows held their Lands or Tenements of the King, or any other Lord, which was in use before the Conquest. Concerning Villenage, Mr. S. doth cite out of Mr. Lambards Perambulation of Kent in Me∣pham, under the Term of Agenes-land, this, as a very antient passage, which had been enough to have con∣vinced me, that there had been Villains before the Norman Conquest; and it is this; Et si Villanus ita cre∣visset sua probitate, quod pleniter haberet quinque hidas de suo proprio alledio, &c. and in his 114. page citeth an old Version of the 19. and 21. of King Ina's Laws of the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which is made thereby to signifie Villanus or Colonus; and it is convicted by Domesdey Book Survey in Sudsexe thus; Radulfus tenet de Willielmo (viz. de Warene) BRISTELMESTUNE. Brictric te∣nuit de dono Godwini Comitis T. R. E. & modo se defendit pro V. hid. & dim. Trā est III car. In dnīo est dimid. car. & XVIII villī. & IX Bordarii cum III car. & uno servo. De gablo IV milia alletium.

In eadem villa tenet VVidardus de Willo VI. hid. & unam V^s. & pro••tanto se de∣fendit. Tres Aloarn tenuerunt de Rege Edwardo & potuerunt ire quolibet. Unus ex eis habuit Aulam & Villani tenuerunt partes aliorum Duorum. Here is an express of a Servus, and also of the Villani, who held this Land in the time of Edward the Confessour. Besides this, I could allege many more; but Sir Edward Coke upon Littleton, saith, that Villani in Domesday are not there taken for Bond-men; but had their name de Villis, be∣cause they had Ferms; and there did works of Hus∣bandry for the Lord; and they were ever before named Bordarii, (which is contrary to Mr. S. in what I cited before of him concerning Bordmanni, which I believe is one and the same thing with Bordarii) and such as are Bond-men are called Servi. Thus Sir Ed∣ward Coke. But I believe the Normans found these Villains here, even by their name, by which I believe they were of a very antient standing; for that I find them known by the Britains by that Title, as they are often mentioned in the Laws of Howel-dha; in a Law which before in this 〈◊〉〈◊〉 I mentioned, is no∣tice taken of a King's Villain, and of a Nobleman's Villain; and then another that gives a right to the Foster-children, of dividing Land with the Children of the Villein; but a little more plainly to bring the proof, in those Laws it is Demonstrated how that Tres homines promoveri possunt u••a die; that is to say, (as I guess it) they are made Gentlemen in one day; (here you must take the Latine as I found it,) Captivus si mo∣vetus

in Swyd de XXIV. officialibus: Swyd is digni∣tas, dignity; so that the sense of it is this; if the Prince bestows upon a Caprive, the dignity of being one of the twenty four Chief officers of his Court, it is an advance∣ment peculiar; or he becomes by it a Gentleman. Se∣cundus, filius villani si sit clericus (our common Law doth differ from the Civil Law, which saith, Partus sequitur ventrem, where as the Common Law hath it, partus sequi∣tur Patrem) but here provision is made that the Son of a villain being a Clergy man should become a Gentleman; which is somewhat explained by the next. Tertius: Homo ex captiva villa, si villa habeat à Domino patrie li∣centiam Ecclesiam aedificare, & in Cimiterio ejus corpora sepeliri; tunc villa si••, & omnes homines de ea postea sunt liberi; that is to say, perhaps they were as servi before, or villani, and now they become liberi. Much to the same purpose M^r. Lambard shews us out of an old piece of Saxon; where the reputation of a Thane consisted, in having among other things a Church, a Hall, a Porch, &c. which shews the cohaerence of the Saxon Customes with the British; and thus by Judge Dodaridge (out of him) it is rendred in his Treatise of Barons, pag. 152.

It was sometimes in the English Laws, that the people and Laws were in reputation, then were the wisest of the people, worship-worthy in his degree, Earl and Chorle, Theyne and under-Theyne; and if a Chorle so thrived, that he had fully five Hides of Land of his own, a Church, and a Kitchin, a Bell-house and a Gate, a Seat, a several Office in the Kings Hall; then was he from thenceforth the Theines right-worthy. And if a Theyn so thrived, that he served the King on his mes∣sage, on his journey-ward, in his Houshold, if he then

had a Theyn, which him followed, who to the Kings experience had five Hides, and in the Kings Palace his Lord had served; and thrice with his errand had gone to the King, he might afterward with his fore-oath, his Lords part play at need, and if a Thein that he became an Earl, then was he from henceforth the Theins right∣worthy. And if a Scholar so thrived through Learning, that he had degree, and served Christ, he was thence∣forth of Dignity and Peace, so much worthy as there∣unto belonged; unless he forfeited, so that he the use of his degree ne might.

Again, among the same Laws, for forfeitures for burning of Houses, it is thus provided; that for the burning of Odin Regis dimid. libre. Opti∣matis LX. den. Villani Regis XXX. den. Villani Optima∣tis XXIV. den. hoc de illis est intelligendum qui Piben habent, de aliis tercia pars pretii cadit. For the under∣standing whereof that Odin is translated formax; which in this place signifies a Kilne wherewith to make Malt, because that Piben signifies a Kilne-hole; the burning of which sorts of Kilne is that which is here meant; which unless it hath a Kilne-hole the third part of the prescribed forfeiture decreaseth. That which I cause it to shoot quite blank against, is the opinion of no Vil∣leines before the conquest, which this Law shews to the contrary; in giving you an account of such even at this time of the Collection of these Laws; Kings∣villeins and Noblemens-villeins. In another Law it is, that, Si filia Villani eat in rapinam cum aliquo; postea ab eodem sit repudiata, reddat 〈◊〉〈◊〉 animalia tria supradicte etatis; another Law provides what the Wife of a Noble∣man might bestow without her Husbands consent; and what she might lend without his consent; But enacts

that, Uxor Villani nichil potest dare sine lioentia Villani; nec mitram; nec aliquod accommodare nisi cribrum tam longe, quod vox ejus possit audiri stans in limine domûs sue dum clamat propter illud. All these Laws are of seve∣ral concernments; but do all expresly prove Villenage above one hundred years before the Norman Conquest, and so by what I have said before concerning the Laws of Howel-dda, probably to be an antient British usage. For the word Clown, thought to be derived from the Latine word Colonus, from when••e also is the British word Klwn; And is the same with the Dutch word Boer, which by a syncope is used for Bouwer, from the word Bouwen (id est) arare, colere agrum, as Minshew hath it; what reproach could there probably be in that denomination? yet now what ignominy doth it carry with it? The like may be said of the last which is called Paganus in Latine, but in English Pain, which became a Surname to a family, and a Christian name to several great persons. But Minshew hath this Story of the O∣riginal of the Name, which carries in my Judgment no great store of probability with it; but as it is I will transcribe it; under the word Pagan (he saith) A Ju∣daeis deflux••ss••••mos hic & appellatio rei videtur; cum enim inter Judaeos H••erosolyma tantum civitas erat, nullisque ni∣si Judaeis ad illam dabatur accessus; reliqur ownes He∣braeis erant Pagani, in pagis, quasi extra cioitatem & po∣pulum Dei constituti; & out of the eighth book of Isid. he brings another story much to the same purpose. Pagani, inquie, ex ••••agis Atheniensium dicti, ubi exorti sunt; ibi enim in locis agrestibus & Pagis gentiles lucos, idolaque statuerunt; & a tali inilio vocabulum sortitisunt. I am perswaded that Paganus comes from Pagus; but I find

that Cyflifc the Saxon Pagan had greater Priveleges than a Villain, for that he was bound to military ser∣vices; as in the 52^d and 64^th. Laws of King Ina, which for brevity sake I shall pass by; only take notice that of all such denominations there hath risen terms of dis∣grace, which were not so, in the first usage thereof; so is it familiarly given to us, concerning the common denomination of the Term Knave; which is a word taken from the Britains, who called a Houshold ser∣vant, or rather such a one as attends upon the person of another, in their Language Knaf, and is also one that is not yet properly said to be a man, but is betwixt a boy and a man. In the sense of a servant it is used in Stat. 1. cap. 3. An. 14 Ed. 3. but in its corruption, and as it is now received it is a word of great disgrace, and expresseth one that falsifies his trust. * 1.105 In an old Obit book that I have, formerly belonging to the Church of Hereford, there is mention of a benefactor called Simon Gods-••nave; from whom I believe at this day a certain place in the City of Hereford is called Gods-knave-inne; which certainly hath no more in the signi∣fication, than, the Servant of God. By this we see, that from such like words and denominations as these are, Surnames were derived; though it may now seem strange to us to meet with such appellations; it ap∣pears that they were not so curious of procuring ex∣cellent ones to transmit to their posterities; but accep∣ted of any serious or jocular; some from shapes of bo∣dy; others from qualityes of the mind; some from Trades, Offices, &c. But I cannot let that pass with∣out

notice, which for a Surname I met with in the se∣cond volume of Domesdey, in the Survey of the Connty of Essex, being there Registred as one of the Trās Te∣nentes of that County, where it is thus Recorded; * 1.106 Terra Roge∣ri Deus salvet Dominas. But I have done with the Tenure of Villenage and the antiquity there∣of; of the use and abuse of antient denominations and appellations I shall only add one or two words; as a mite cast into M^r. S's. Treasu∣ry; which is by way of approbation of what he hath learnedly discoursed concerning Sok and Sak, evicting that common received opinion which makes it signifie the service of the Plough: But Minshew upon the word saith, that Soca is a word signifying a power or liberty of Jurisdiction, as appeareth by these words out of Bracton; sunt quidam Barones, & alii libertatem habentes, scil. Soc & Sac. Tol & Thean. Infangthefe & utfangthefe; & isti possunt judicare in curia sua eum qui inventus fuerit infra libertatem suam, seisitus de aliquo latrocinio manifesto. The self-same interpretation doth Mr. Lambard give it in his Translation of the Saxon-laws; for amongst the rest in those of King-Ina, Be cyfic socnum is rendred, * 1.107 de immunitate fani; and in the Laws of Henry 1. it is said, Nullus enim Socnam habet impunè peccandi; that is, no one hath liberty of sinning without punishment. In the second of King Alureds Laws, Be cy ficena socnum is by the interpreter rendred de immunnitate Templi; so like∣wise in the Laws of King Edmund Hamsocn•• or Ham∣socnum

is translated there immunitas domûs; the privi∣leges which men take themselves to have, in their own houses; for that every mans house was his Castle. In the said sense it is, that I understand it in Domesdey to be received; for in Essex under the Title of Terra Ro∣geri Bigoti (which is in English I think, The Land of Roger the Zealous) it is thus Recorded, Westunam tenet Hugo de Hosdene quod tenuerunt IV liberi homines T. R. E. qui fuerant de Soca Algari, &c. Sac (Sacha vel Sacca) Minshew renders, to signifie a Royalty or privilege touching plee or correction of Trespasses of men within a Mannour; and saith, that he was informed that this word (Sac) in the Saxon Tongue, doth properly signifie as much as (Causa with the Latines) Sake; whence we in English still retain that ex∣pression; for whose sake, &c. that is for whose cause; but in the Laws of Edward the Confessour they are both of them thus expounded.

Sacha est quod si quilibet aliquem nominatim de aliquo calumniatus fuerit; * 1.108 & ille negaverit, forisfactura proba∣tionis vel negationis (si evenerit) sua erit.

Soca est quod si aliquis quaerit aliquid in terrasua, * 1.109 etiam furtum, sua est justitia si inventum fuerit, an non.

I shall also exhibit an Exposition of them both, out of a very antient M S book, * 1.110 in which are Registred seve∣ral Donations to a Cathedral Church in England; where after the recital of a certain Charter granted by Edward the Confessour to them, Cum Saka & cum Sokna; there follows an Exposition of them both, in red Letters thus.

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Equitur expositio illorum Terminorum Soka & Saka.

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Oka. hoc est Secta de hominibus in curia vestrasecun∣dum consuetudinem regni.

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Aka. hoc est placitum & emenda de transgressionibus hominum in Curia vestra.

The first is only the sute of Court due by the inhabi∣tants of a Lordship or Mannour, and Sac is the liberty of Holding Pleas and imposing Mulcts and forfeitures upon Transgressors in that Court. M^r. S. hath learnedly dis∣coursed this and the Erymologye thereof; and because not in controversie I will not therewith further trouble the Reader. I am now come to the end of this imme∣thodical discourse, and desire his pardon, and accep∣tance of the intention for the thing done: for I could wish if this subject should prove pleasurable or delight∣full to any, that it had been better ordered, and clothed in better style and language. But now, jacta est Alea: it must take its fortune, and pass under the censures of many; some will except against the boldness of the Author, in that he is not afraid to Question received opinions and to examine the ipse dixit of the Law; I hope such cannot say that it was immodestly or irre∣verently done: some will think it too long; others per∣haps too short; many to be needless; so perchance it may fall out that I may escape with the Countrey Priest, who coming to a village of Husbandmen, that had newly buried their Pastor; and over-hearing them complaining that he had not by his Prayers procur'd them rain or fair weather according to their occasions. The stranger thereupon offers unto them, that if they

would procure him the Benefice, he would satisfie them in that point; which being obtained, several of them came to him, some for continuance of fair wea∣ther, others for some showrs of rain to refresh their almost burnt-up grass; and every one according as they were ingaged in their several necessities and requi∣sites of Husbandry: He told them he could not at the same time obtain fair weather and rain, but if they would agree together, then he would content them. If any carpingly disposed, stumble upon this Tract; I shall only desire them to meet, and agree upon their verdict, and I then will undertake to please them. To the Ingenuous, I have this only to add; let Them ac∣cept of it as either an Essay, or under any other Title, or denomination whatsoever, and I have done.

Notes

• * 1.1

  Lib. 1.
• a 1.2

  Salust. cited by Mr. Selden in his Mare Claus. l. 1. c. 7. de aborigiaibus in conjurat. Ca∣tilinae (saith they are) Ge∣nus hominum agreste, sine le∣gibus, sine im∣perio, liberum atque solutum.
• * 1.3

  It was long after the first Planta∣tion of our Island that Money was in use, and longer before the King's Dues were paid in Mony. For Judge Doderidge out of Gervasius Tilburiensis, a learned man, who flourished in the days of King Hen. 2. in his Dialogue of the observation of the King's Ex∣ch••quer, hath in effect as follow∣eth: Until the time (saith he) of King Hen 1. the King used not to receive Mo∣ny of their Lands, but Victuals for the provision of their House, and towards the payment of their Soldiers Wages, and such like charges; Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised: But at length, when the King being in parts beyond the Seas, needed ready mo∣ny for and towards the furniture of the Wars, and his Subjects and Farmers complained, that they were grievously troubled by carriage of Victuals into sundry parts of the Realm, far distant from their dwellings; the King directed Commissions to certain discreet persons, who having a regard of those Victuals, should reduce them into reasonable sums of mony, the levying of which sums they appointed to the Sheriff, taking order withall, that he should pay them at the Scale or Beam; that is to say, that he should pay sixpence over and above every pound weight of mony, because they thought that the Mony in time would wax so much the worse for the wearing. Ex Camden & Littleton Treatise of Nobility, pag. 118, 119.
• * 1.4

  Which Law, as Mr. Selden il∣lustrates it, may seem to be grounded upon the practice of Noah— Noa∣chus & tres filii ejus, Semus, Cha∣mus, & laphetus (qui velut Adae, in generis humaai post diluvium instau∣rationem personam jam simul induerant) Domini pro indiviso rerum omnium sacti sunt. Formula donationts est Genes. cap. 9.2. Crescite & multiplicami∣ni— & replete terram. Pavor ve∣ster & Tremor vester erit super om∣ne animal terrae, & super cunctum volatile coeli, &c.— Et scimus ex sacris literis Tellurem à Noachid is se∣culis aliquot post diluvium esse divisam. A Japeto & filiis ejus divisae sunt In∣sulae Gentium in terris suis unus∣quisque juxta linguam suam, & juxta familias suas in nationibus suis, Quod in Genes. 10.25. & 3. ait Mo∣ses, Scilicet, à Tanai fluvio usque in Mare Atlanticum s••u per Magnam Asiae Occidentalis, quae in Septentrio∣nem vergit, partem, praeter totam Euro∣pam, limitibus juxta familiaru•• rume∣rum designatis, sedes ut Domini privati accipere. Quemadmodum Chamus po∣sterique ejus, non dissimili modo, quod Austro & Africo expofitum est; & Se∣mus plagas Orientales usque ad Indi∣am— Invaluit etiam Traditio, ipsum Noachum, perinde ac si totius Dominus in solidum aut Arbiter per comoromissum suisset, distributionis hujus s••••l privati hujusmodi Dominii post diluvium instau∣rationis autorem suisse, idque 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, juxta oraculnm divinitus ac∣ceptum, eamque anno aetatis sua 930. (qui à diluvio erat 330. & ante obitum ejus vigesimus) Testamento firmâsse, atque moribundum illud in Semi silii pri∣mogeniti ma••us tradidisse, cunctosque simul monuisse; nequis corum fratris fines invaderet, nec injuriâ alter al∣terum afficeret, quoniam inde, ut dis∣cordiarum atque bellorum intestino∣rum causa oriretur, foret necessum. Selden, Mare clausum, lib. 1. cap. 4. To which I think fit to subjoyn what he writes in the same Book, cap. 8. how this partition was mystically, in the mist of their inventions observed by the Heathen: Vera sunt quae lo∣quuntur Poetae (ut rect è Lactantius) sed obtentu aliquo, specieque velata. Et sic veritatem mendacio velave∣runt, ut veritas ipsa persuasioni pub∣licae nihil derogaret. Fabuloso, quod diximus tempore devictis scribunt Ti∣tanibus, sorte Mundum divisisse Deos fratres, Iovem, Pluronem, Neptunum. Iovi Coelum, Plutoni In∣ferna, Neptuno Mare cessisse. Rejectis autem augis illis de sydereo heic coelo seu aethere, de infernorum seu mortuorum regno, & demum de Terra tota fratrum omnium, post divisionem communi, quibus patienter sibi imponi vulgus sinebat, res ips•• quam in larvatâ hâc historiâ latere veterum aliquot docuere, alia omnine erat. Non Deos hosce, sed homines fuisse asserunt. Nec coeli, sed plagae orientalis ex qua mortalibus lux datur (unde & su∣perior visa est ideoque coelum dictum) Iovem Regem fuisse. Plutonem autem accidentis quae solis recessum Noctemque ••stendit, unde inferior ea dicta & infer∣na. Maris denique & interjectarum Insularum Dominum fuisse Neptunum— è Lactantio porra scribit. Iupiter Neptuno imperium dat Maris ut Insulis emnibus & quae loca essent se∣cus Mare omnibus regnaret— Iohannis Gryphiander de Insulis Cap. 31. S. 75. de Tribus Noachi filiis rem totam de tribus Diis narratam fidentèr capiat. Verba ejus sunt; Id ••roculdubio ex partitione Terrarum inter Tres filios Noachi, ex quibus Japheto Insulae obvenerunt causam traxit.
• * 1.5

  Martiaus Zeillerus in his Hispaniae & Lusitaniae Iti∣nerarium, out of a deserip∣tion of France, wrote by Fran∣ciscus de Rues, writing of the Province of Bigo••re, tells us by way of wonder and special re∣marque, that Mos hic obtinu∣it, ut primoge∣nitus omnium bodorum pater∣norum haeres evadat, sive nobilis sive ig∣nobilis.
• * 1.6

  Beda cap. 2. writing of Cae∣sar's prepara∣tions to in∣vade Britaany, saith, Navibus ectoginta prae∣paratis in Bri∣tanniam trans∣vehitur, ubi a∣cerbá primum pugnâ satigatus, deinde adversà tempestate correptus, plurimam classis partem, & non parvum numcrum militum, equitum verò penè omnem disperdidit— Iterum in Bri∣tanniam primo vere transvectus, dum ipse in hostem cum ingenti exercitu pergit, Naves in Anchoris stantes, tempestate correptae, vel collisae inter se— dissolutae sunt. Ex quibus 40 pericrunt, caeterae cum magna difficultate repar••tae suat. Caesaris equitatus primo congressu à Britannis victus; ibidem Labienus Tribunus occisus est.
• * 1.7

  The same Discourse hath Mr. Sel∣den to another purpose, concerning these four Kings, which because it is to my purpose in several particulars of this ensuing tract, I shall here adjoyn as a Marginal note, to which I desire the Reader to have refe∣rence, — He saith thus, Unde sequitur etiam eos qui in Britanniam è Galliis Druidum disciplinae discendae causa frequenter trajicere soliti. ià 〈◊〉〈◊〉 nisi temcritatis poenae obnoxios, veniâ ab insulae Regulis non impetràtá, ferisse. A Regulis, inquam, maritimis: Nam non unius imperio tunc suberant Britan∣ni, Maris Domini fuere, qui maritimis civitatibus seu provinc is imperabant: Veluti Cinge∣torix, Carvilius, Taximagulus, Segonax in Cantio; alii in Regnis, Belgis, Durotrigibus, Damnoniis, Trinobantibus, Icenis, Coritanis (populis qui Sussexiam, Surriam, agrum Ham∣toniensem, Dorsetiam. Devoniam, Cornwalliam, Essexiam, Norfolciam, Suffolciam, Lincolniensem agrum occupabant) id demis caeteris. Nam & Caesar ipse interiorem partem Iasulae ab iis incultam ait, qùos imbi natos proditum dicebast; maritimam autem partem ab iis qui praedae ac Belli inferrendi causa ex Belgio, transierant. Tametsi verò ita in Singularia dist••aberentur imperia tunc erae maritimae, nihilominus adversus hostem, seu ad moare tutandum, dubitari nequit, Quin communi uterentur simul consilio; quemadmodum itidem in aliis rebus in exter••••s hostes bellicis; ut videre est apud Caesarem, u••i sum••a imperii bellique admini∣stra••di communi Britannorum consilio permissa est Cassivellanno. Lib. 2. cap. 2. Mr. Sclden applies all to his Subject of the Dominion of the Sea, yet gives an account of their Fractions, of which hereafter.
• * 1.8

  Prolegom. D. Briani Walton in Bibl. Polyglot. 1. S. 14. Where he Writing of Languages, saith, Quaedam tamen inter linguas nobis cognitas quasi cardi∣nales è quibus multae aliae pullularunt à doctis recense••••ur, — Tartarica, quae longe per Septentrionem vagatur, ad quam multae Europaeorum & Asiaticorum linguae antiquae referendae, si Boxhernie credendum, ut antiqua Gallica, & Bri∣cannica, cujus reliquiae adhuc in Walli•• manent. Et in Sect. 20. Walli nostri (scribit) sive Cambro-Britanni à Sax∣onibus ieter-asperes & incultos montes depulsi, linguam longè antiquiss. Bri∣tannicam minime permistam, adhu•• conservarunt, ut scribit Doctis: Camb∣demus. Imo ipsis persuasum est linguam suam aunquam interituram, ut ex Tele∣sini carminibus liquet.
• * 1.9

  Caes. Com. de Bello Gallico Lib. 6.
• * 1.10

  Pliny, lib. 30. c. 1.
• * 1.11

  De Galliis.
• * 1.12

  1 Chron 7. and 8 chapters
• * 1.13

  Numb. 25.44.
• * 1.14

  I could wish that those Re∣nowned English Plantations in America would examine of what avail this in proba∣bility and po∣licy may be to them, and in particular to the most fa∣mous Planta∣tion of Virgi∣nia, the most fertil and most consonant to English bodies, of any what∣soever, and will ••ove of greatest use in time to the English Na∣tion.
• * 1.15

  Seld Mare Claus. in interserend. in fine. Sic ex vocibus illis, Gesum, Trimatcia, Essedum, Petoritum, Braccae, id genus aliis sive à Gallis sive a Britannis in Romanorum lin∣guam receptis, notissimum ipsarum rerum quas significant sive in Galliis sive in Britanniis usum satis iadicari à nemine non agnoscitur.
• * 1.16

  Annal. lib. 14.
• * 1.17

  Circa Ann. Salutis huma∣nae 443.
• * 1.18

  Hist. Bel. Vand. l. 1. c. 4.
• * 1.19

  This Mr. Selden hath al∣so Collected by his Obser∣vations; Tantundum (saith he.) sane innuere visus est antiquus scriptor Ethelwerdus, de corum advensu verba faciens; Illis diebus, inquit, agilem au herunt Britanni esse in Piratico genere Gentem Saxonum in tota. Maritima à Rheno fluvio usque in Doniam ur∣bem, quae nunc vulgò Danemarc nuncupatur, ac in omni armatura robustam: His, igitur im∣mensa per nuncios munera mittunt, auxilia petunt, societatem pacis promittunt. Qui antea Mare Britannicum infestare soliti, ad ejusdem tutamen & ad pacem invitantur. Mare claus. Lib. 2. c. 9.
• * 1.20

  Susceperunt ergò qui (viz. Saxons) ad∣venerant, donantibus Britannis, 〈◊〉〈◊〉 habitationis INTER EO'S, ca con∣ditione, ut hi militarent &c. Bed: Eccl. hist. l. 1. c. 15. They had Lands as∣signed to them among them; not the Lands and Possessions of the Britains assigned.
• * 1.21

  Bede reports, lib. 1. c. 13, 14. of his Ecclesiastical History, that the Bri∣tains were very sorely afflicted with a Famine, and enjoying suddenly a great plenty, fell to Luxury and sloath, and were so effeminated.
• * 1.22

  Or at least such a Note as this acti∣on at this Town received from the Saxon Chronologist, Anno Christi 490. Hic Ella & ••issa (urb••culam) An∣dredescester obsederunt, omnes{que} ibi exin∣bi habitaruat oc••idebant: ne{que} ibi exin∣de Britannus unicus (vivus) relictus fuit.
• * 1.23

  Initum nam{que} est concilium, quid agen∣dum, ubi quaerendum esset praesidium ad evitandas vel repellendas tam feras, tam∣que crebe••rimas gentlum ••aquilonarium irruptiones: placuitque omnibus cum suo Rege Vortigerno, ut Saxonum gen∣tem de transmarinis partibus in auxilium vocarent, &c. Hist. Eccl. Bed. l. 1. cap. 14.
• * 1.24

  Selden. Mare claus. in interserend: in fine.

  Mr. Selden hath diligent∣ly observed this. In libris Notitiae (saith he) it a legitur, Sub dispositione viri illustris Magistri pedi∣tum praesentalis Comites militum infrascriptorum.

  It aliae.

  Africae.

  Tingitaniae.

  Tractus Ar∣gentoratensis.

  Britanniarum.

  Lito is Saxo∣nici per Britan∣nias.

  Tam in Al∣ciati quàm Pan∣cirolli editione legitur, ut heic, Militum infra∣scriptorum. Dubitari nequit, quin pro Militum, limitum fuerit substituendum. Neque enim ratio offici∣orum Imperialium patitur ut Militum ibi locum habeat. Et certissimum est ex iis quae sequun∣tur, Italiam, Africam, Tractum Argentoratensem, Britannias, & litus Saxonicum suos habu∣isse Comites, ut Comites Limitum, non aliter ac Territoria quae ibi proxime subjunguntur, velut Mauritania Caesariensis, Tripolitani, aliae itidem provinciae, quae praeter Britannias, suos pari∣ter habuere Duces, nomine Ducum limitum, &c.
• * 1.25

  The Soveraign Power hath alwaies had, and used the privilege of ma∣king Kings under them as it pleased them, as Mr. Sclden observes, Mare claus. l. 2. c. 19. Nec contemnendum est (saith he) sine id, quod in chronicis Coenobii Theokesburiensis occurit de Henrico de Bello campo, Duce Warwici, in d••gnit atem Re∣gis, ab Henrico Rege Sexto, non solum Iasulae Vectis, verum & Sarniae & Caesareae, ad quas caeterae in hoc tractu. civiliter spectant, creato. De Insula Vecti idem memorat vir op∣timus Gulielmus Camdenus, id{que} ex eodem codice. At vero codex ipse ad hunc modum; Obiit autem Dominus. Henricus Nobilis Dux Warwichiae & primus Comes Angliae, Dominus te Dispenser & de Abergevenny, Rex de Insulis Wight & Gardsey & Jardsey, Dominus quo{que} Castri Bristoliae cum suis annexis. 3. idus Juni•• A. D. 1446. Anno aetatis suae 22. apud castrum de Hanleya, & sepultus est in medio chori Theokesburiae; & paulo ante, de Eodem; Coronatus est in Regem de Wight manu Regia; & paulo post; Quemadmodum Ri∣chardus Rex secuadus cum Robertum comitem Oxoniae (qui & Marchi•• Dubliniae & Dux Hiberniae fait) Regem Hiberniae creare destinarat, se interea Insulam illam non minore quam Regis (tametsi Domini nomen tunc, uti etiam us{que} ad Henrici Octavi tempora posteri∣ora, Regis ibi vicem omnina suppleret) titulo ac dignitate possidere proculdubio non dubitavit. By which Custome brought down so near our age, and deduced from the practice of antient times, it is no wonder that we find so many in several ages dignified with that Title, either as an especial mark of Honour, or by the privilege of descent, as the Earls of Derby at this present are with the Title of Kings in Man.
• * 1.26

  From this it was that in the time of Rich. 2. came up first the Title of Marquesses, which is a Governour of the Marches; for before time those that governed the Marches were called commonly Lord Marchers, and not Marquesses, as Judge Dodaridge hath observed in his Law of Nobility and Peerage, under the Title of Marquesses, pag 31. where in that Chapter he also adds this Paragraph well worth the reading. After the Normans had conquered this Land, it was carefully observed by them, as a matter of much moment, and a point of special Policy, to place upon the confines and borders of the Britains or Welsh, &c. not then subdued, men of much valour, not only sufficiently able to incounter the in∣rodes and invasions of the enemy; but also willing to make on-set of them, and inlarge the Conquest; These men thus placed, were of high blood, credit, and countenance among their Countrey-men the Normans, and in whose faith and power the Conque∣tor reposed special considence and trust, and therefore in their Territories given unto them to hold their Tenures, were devised to be very special, and of great Importance, and their Honours inriched with the Name and privileges of Earls of Chester, and for the North-border of Wales created to be a County Palatine, and the Barons of the mid∣dle Port of the South Marches, were adorned in a manner with a Palatine Jutisdiction, having a Court of Chancery, and Writs onely among themselves pleadable, to the intent that their Attendance might not thence be driven for the Prosecution of Con∣troversies, and Quarrels in the Law; and as for the other part of the South Marches, they seemed sufficiently fenced with the River of Severn and the Sea. My business hath been to make it probable that these Reguli were Lords of Marches and Limits long before the Norman conquest, to which I referr you; neither were those Welsh li∣mits fenced by Severn; but for many hundreds of years, by Offa his ditch.
• * 1.27

  Hist: M S. penes Author.
• * 1.28

  M S. vol. 4. in Biblioth. Bodl.
• * 1.29

  Monast. Angl. pag. 127.
• * 1.30

  Cambd. in Brit.
• * 1.31

  In the little History published by Mr. Whcelock found with the Saxon M S. of Bede, writing of the setling of the Kingdome of the West Saxons, it is thus Recorded, that Cerdic and Ciaric his Son, six years after they Landed in Britain, Invaded that Pro∣vince, & ƿaerdn ða aerestan Cyningas þe ƿest Seaxena land. on ƿealum geeodan. (i.e.) iique erant primi Reges, qui Occidentalium Saxonum Regnum IN∣TER WALDOS perdomuera••.
• * 1.32

  Bright, from the British word Brith which signifies their Wadde∣colour which was a light∣blew. Minsh.
• * 1.33

  Similiter olim apud Britones temporibus Re∣manorum in reg∣no isto Britan∣niae 〈◊〉〈◊〉 Senatores, qui postea tempori∣bus Saxonum vocabantur Al∣dermann••, non propter aetatem, sed propter sa∣pientiam & dignitatem, &c. In leg. 35. E∣dovardi con∣fessoris.
• * 1.34

  Speed, l. 7. c. 18.
• * 1.35

  Bedas Eccl. Hist. l. 2. cap. 5. ait Ethelbertum Cantiae Regem scripsisse idio∣mate Saxonice, libellum cui nomen indidit DECRETA JUDICIORUM, at∣que judicia illa vel sua memoria tradit su∣isse observata; Aluredus in praefatione le∣gum satetur se ex Ethelberto sumpsisse non∣nulla. Quid plura? Asserius Menevensis olim Aluredo REgi familiaris, prodit ipsum Regen Saxonicis mandasse literis JUDI∣CIORUM DECRETA, verum ad nos non pervenire injuria temporum; this out of the Glossary to the Saxon Laws, under this word LIBER JUDI∣CIALIS.
• * 1.36

  Leges Molmutii Duawallo••is Gildas Cambrius in Latinum sermonem transtulit, & Alphredus Magnus in Saxonicum. Balaeus in vita ejusdem Molmutii.
• * 1.37

  Omnes proceres regni, & milites & liberi homin••s univ••••st totius regni Britan∣niae facere debent, in pleno folcmote fidelitatem domino Regi coram Episcopis regm. Hanc legem invenit Arthuru••, qui quoadam suit inclytissimus Rex Bryto∣num, & ita consolidavit & confoede∣ravit regnu••n Britanniae universum semper in unum. Hujus legis authoritate expulit Arthurus praedictus Saracenos & inimi∣cos a Regno, lex enimista diu sopita fuit & sepulta, donec Edgdrus Rex Anglorum illam excilavit, &c. In leg. 35. Edo∣vardi Confessoris.
• * 1.38

  The Denominations here of William the first by Conquestor or Conque∣rour, and this the Norman Conquest, have stumbled many, looking upon it as if it carried with it, the ensla∣ving of the Eaglish by his Victorious success over Harald, and so are loath to afford it any Courteous reception; whereas there is no more in it than the plain acquisition or getting of this Realm of England after his pre∣tences from King Edward the Con∣fessour were made known, as in the following Tract appears, by the con∣straint and force that Harald put him unto, to get his Settlement by Battel with him; which word of Conquest is to this day familiarly used in Scot∣land, to signifie Land purchased; and Mr. John Skene saith upon the word, that Conquestus, signifies Lands, quhilk ony person acquiris & possessis privato jure, vel singulari titulo, ve∣l••ti donatione vel singulari aliquo contractu; Quhilk is conform to the Civil Law, ubi quae stus dicitur lucrum, quod ex Emptione, venditione, loca∣tione, conductione, vel generaliter ex opera cu jus descendit. l. coiri. 7. cum seq. ff. pro Socio; and further writing of Lands so purchased, concludes; Conquestus dicitur ratione primi conque∣storis, & cum transmittitur ad ejus hae∣redem, exuit naturam conquestus, & in∣duit naturam haereditatis.
• * 1.39

  Ex legib. Guil. 1.
• * 1.40

  Cooke l. 2. c. 12. Sect. 234. e. For the institution and right use of this Try∣al by 12. men, and wherefore other Countreys have them not, and this Tryal excels others, See Fortescue at large, cap. 25, & 29. & Glanvil lib. 7. cap. 14, 15. Bracton lib. 3. fol. 116. a. and in antiont times they were 12. Knights. This Tryal of the fact per duodecim liberos & legales homines is very antient, for hear what the Law was before the Conquest, Lamb. verbo centuria. In singulis Centuriis comitia sunto, at{que} liberae conditionis viri duodeni aeta••e superiores una cum praeposito sacra tenentes juranto, &c. Nay, the Tryal in some Cases, per medietatem linguae (as we speak) was as antient, in Lamb. fol. 91.3. viri duodeni jure consulti, Angliae Sex, Walliae totidem, Anglis & Wallis jus dicunto, and of antient time it was called, Duodecim virale judicium.
• * 1.41

  Judge Dodaridge in his Treatise of Nobility, pag. 110. hath this, Where∣as it is contained in the Great Char∣ter amongst other things in the form which followeth: No free mun shall be taken or imprisoned, or diseised of his Free hold, or his Liberties, or Free-customes, or shall be Out∣lawed or Banished, or in any wise de∣stroyed, nor go upon him but by the Lawfull Iudgment of his Peers, on by the Law of the Land; by which is to be seen that it was the antient Law of the Land; for Magna Charta was only a Confirmation of those antient Privileges claimed by the Barons and people from the first Norman Kings.
• a 1.42

  Iudge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeo∣manry or Common people for they be called of the Saxon word Zemen, which doth signifie Common, who have some Lands of their own to live upon, for a C••rve of Land or Plough-Land, was in antient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Cokes 9. part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, &c.
• a 1.43

  Iudge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeo∣manry or Common people for they be called of the Saxon word Zemen, which doth signifie Common, who have some Lands of their own to live upon, for a C••rve of Land or Plough-Land, was in antient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Cokes 9. part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, &c.
• a 1.44

  Iudge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeo∣manry or Common people for they be called of the Saxon word Zemen, which doth signifie Common, who have some Lands of their own to live upon, for a C••rve of Land or Plough-Land, was in antient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Cokes 9. part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, &c.
• * 1.45

  Iudge D••da∣ridge in his Treatise of Nobility writes pag. 121. of a Treatise which he calls very antient, deno∣minated, De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi.
• * 1.46

  Coke upon Lit. lib. 2. cap. 12. Sect. 234.
• * 1.47

  Ex Domesdei. Hantescira Trā Tainōr. Regis.

  Alwi filius Torber tenet Roche∣borne. Uluiet tenuit de Rege Edw. in Alodium pro manerio, de ista hida, i. virg. quam calumniabatur: dicit Hund. quod T. R. E. quieta & soluta fuit, & inde habet Aluui Sigillum Regis Edw.

  Ex Domesdei. Hantescire.

  Trā Tainōr. Regis.

  Edwinus tenet Acangre, & dicit, quia emit de Rege Willielmo, sed scira nescit hoc, de hoc manerio calumniatur Prepositus Regis dim̄. hid. ad pa∣sturam Boum Regis. Scira vero testatur, quod non potest habere pasturam nec pasnag. de Silva Regis sicut calumniatur, nisi per Vicecomitem.

  By this we see they impleaded their rights against the King.

  Ex eodem. in eadem Scira Trā. Willm̄i Arcuarii.

  Isdem tenet Cuntune, quinque Teini tenuerunt de Rege Edw. & quo volu∣erunt ire potuerant. Aldredus frater Ode calumniatur unam v^s. terre de hoc Manerio, & dicit se eam tenuisse die qua Rex Edw. fuit vivus & mortuus: & disaisitus fuit postquam Rex Willm̄us Mare transiit••; & ipse dirationavit coram Regina. Inde est testis ejus Hugo de Port & homines de toto Hun∣dredo. Here by these you may gather several manners, and several reasons, and grounds of claimes then.
• * 1.48

  Iudge Dodaridge in his Treatise of the Law of the Nobility and Peerage of England, in his 16 page, shews the manner of Saxon signing to a Charter of Henry 8. to his Son Edward when he was Created Prince of Wales, and Earl of Chester, where it is concluded, These being witnesses the Reverend Father Iohn Cardinal, and Archbishop of Can∣terbury, &c. W. Archbishop of York, &c.
• * 1.49

  Judge Dodaridge in his Treatise of Nobllity, p. 118. Writing of Knights their disposing of their Estates in those Elder times, saith, For they did thus order their own Lands and Tenements, one part they kept in their own hands, and in them stately Houses and Ca∣stles were erected, and made for their Habitation, and defence of their Per∣sons and the Realm; also Forests and Parks were made there, for the Pleasures, Solace and Delight.
• * 1.50

  Bishop of Hereford.
• * 1.51

  M.S. pe••es Authorem & citat. à Joanne Prisaeo in Defensione sua Histor. Brit. &c. Of whom Balaeus among his antient Writers saith, Teliesin, Claruit Anno salutis humanae 540. Arthur•• ad∣huc in Brytannia regnante. Mr. Wheelock out of an antient M.S. in Trinity Coll. Camb. in his Comments upon ••ede cites this of Him com þe gode Bruigt ƿat ƿas þe furste man Ðat louerd ƿar in Enge∣lond; that is, of him (viz. Dardan) came the good Brute that was the first man that was Honoured in England, or Lorded there.

  Sir Edw. Biss (my honoured Friend) in his Notes upon Vpton writes p. 41. Joannes Hantvillensis, sive Hantwillensis; Nostras, Claruit anno 1200. regnante Joanne libros de Bruto XVI. (quemad∣modum in Gesnerianae bibliothecae Simle∣riana legitur Epitome, sed Pitseus ait, poëm••t id libris IX. constare) ludebat, Archithrenium autem appellavit, &c. —atqui hinc ipse etiam Archithreni•••• nominatus. Eum laudat Petrarcha, Giral∣dus, Vives, Vossius, Textor, Balaeus & Textor.
• * 1.52

  North-Gales. Wales. Wallia cometh of the Saxon word Wealk, which signi∣fieth Peregrinus or Exterus, for the Sax∣oas so called them; because in troth they were Strangers to them; being the remain of the old and antient Bri∣tains, a wise and warlick Nation, in∣habiting in the West-part of England. These men have kept their proper Language, for above these thousand years past, and they to this day call us English-men, Saisons, (that is) Saxons. Coke upon Littleton.
• * 1.53

  As itis re∣marked by Sir J. B. and may be worth the Enquiry.
• * 1.54

  Procop. Bel. Vandalic. l. 1. c. 1.
• * 1.55

  Judge Doda∣ridge in his Treatise of the Nobility saith, page 53. o••t of Tho. Thomas Aqui∣nas setteth down a more certain Rule (saith he) in vocibus viden. dum non tam à quo, quam ad qu••d sumitur, and words should be ta∣ken, sensu cur∣renti, for Use and Custome is the best Ex∣position of Laws and words, quem pe∣nes arbitrium et ••••s & norma loquendi; where propriety and true sound in words meet, this Rule or discourse can∣not reach; for, nomina-sunt omina.
• * 1.56

  M S. Penes Authorens.
• * 1.57

  Which by the Irish are called Can∣fimiy's, and are the chief of their Gavels or Rhin-taloon. See Davies his Irish reports.
• * 1.58

  I am informed by the Irish, that their Rhein-ta-loon, which is their part∣ing of Land; is generally among the Comminalty, and is like that o•• the Country of Flanders, where Daughters share as well as the Sons, and spreads all over that Country also; the like to which I shall shew you in Wareham in Dorsetshire, in the next Chapter. R••ein in the Irish is to part, and I believe comes from the British Rhannu.
• * 1.59

  The Irish have the same manner of Partition. Da∣vies-Irish re∣ports.
• * 1.60

  Item, Lou, per Custonie a••pel. Burgh-English en ascun Burgh, le fits puisn in∣herita touts les Tenements, &c. Littleton, Lib. 2. Sect. 211.
• * 1.61

  Lib. 2. Cap. 11. Sect. 211.
• * 1.62

  Ex leg. Howeli Boni M S. penes Authorem.
• * 1.63

  Kanc. Rot. Tur. Lond. Claus. 8. Rich. 2. m. 2.
• * 1.64

  Domesd. penes Cam. Sccii.
• * 1.65

  Regio de Arcenefeld.
• * 1.66

  In Rot. 20 Ed. 1. penes Camer. Sccii Recept.
• * 1.67

  Rot. quo. War. ibidem.
• * 1.68

  Martinus Zeillerus in his ••inera∣rium Hispaniae out of Mariana, lib. 16. cap. 9. and lib. 17 cap. 8. Et Hugo Linschoten, saith, Anno 1341. Intro∣ductum est vec••igal H••s••ans, i. e. Alca∣vala & Italis Gabella dictum, quod aliquoties postea auctum suit. Ejus vi co∣guntur subditi decimas pendere, quoties∣cu••que merces, bona, praedia, aedes & agei ven••untur. Eidem obnorii sunt cujus∣cunque generis op••••ices, ut sutores, sartores, lanii, & quicuaq••e officinas a••••••as ha∣bent. Vinum quoque sive uvae colliga••tur, sive ipsum in R••g••o divendatur, sive in exteras regiones navibus deseratur, &c. pag. 78.
• * 1.69

  L. 2. c. 12. s. 213.
• * 1.70

  XI. Lib. de Gablo, & qui ibi manebant faciebant ser∣vitium Regis cum equis vel per aquam us∣que ad Blid∣beriam, Red∣dinges, Sudto∣ne Besentone, & hoc facien∣tibus dabat pre∣positus [con∣redium] mer∣cedem non de Censu Regis sed de suo. Ex Domesd In Berrochescire.
• * 1.71

  For before that Sagar was from the Indies brought among us, the use of Honey was frequent instead thereof: So that I have observ'd in some very antient Rentals, as great a proportion of Honey as there would be required of Sugar to se••ve such a Family; and much reserved to the King in most Counties, as appears by Dom••sdey.
• * 1.72

  Mr. S. pag. 33.
• * 1.73

  Many there are that with Mr. Sel∣den account gafol to signifie several things, as tributum, &c. but not in the least with reference to the Tenure; he cites the A••••ales Anglosaxoas In Bibliotheca Cottoniana, Anno 1012. Ða {that} gafol gelaest sae & frið aþas asporene ƿaeson þa to ferde se Here ƿide sƿa He aer gegaderode ƿas. Ða bugon to þam cynge of þam Here fif & feoƿertig scypa. & Him beHeton {that} Hi ƿoldon. þysne eard Healoan & He Hi fedan sceolde & scƿydon. id est. Tributo soluto, & amicitiae juramentis praestitis, excrcitus, ut ante erat congregatus late dispergitur. Maneb vit vero cum Rege ex ipso exercitu quadraginta quinque naves ipsique side datâ promiserunt se Terram hanc d••fensuros, modo eos aleret & ve∣stiret Rex. Danorum Rex tunc Swa∣nus crat, quorum ita pepigit Ethelre∣dus. Utrumque autem praestationis quam diximus genus Danegeld, Danegeldum seu Danageldum, id est, Tributum Danicum dicebatur. Seld. Mar. claus. l. 2. c. 11. Here we may ob∣serve that geld is most properly Tri∣bute, though in the former part of this Saxon citation, Mr. Selden renders gafol by Tributum, and properly it doth signifie a payment.
• * 1.74

  Testament. Saxonic.
• * 1.75

  Pag. 39.
• * 1.76

  Script. 4.
• * 1.77

  Script. 6.
• * 1.78

  Script. 7.
• * 1.79

  Script. 8.
• * 1.80

  Script. 5.
• * 1.81

  Mergan signifies got of the Sea.
• * 1.82

  Pag. 34.
• * 1.83

  Scepticism.
• * 1.84

  Judge Dodaridge in his Treatise of Nobility, p. 119. saith: It was anti∣ently ordained, that all Knights fees should come unto the Eldest Son by succession of Heritage, whereby he suc∣ceeding his Ancestors in his whole in∣heritance might be the better enabled to maintain the Wars against the Kings Enemies, or his Lords. And that the Soccage Fee should be partible among the male Children to enable them to encrease into many families, for the bet∣ter furtherance in and increase of Hus∣bandry, haec. ex. Sr. I. Coke.
• * 1.85

  In Domesdey in Dorsetshire, there is this, Trē Taino∣rum Regis, in one Title, and in the next it is thus for the same thing, Trē Servientium Regis.
• * 1.86

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.87

  The Bri∣tons.
• * 1.88

  Seld. Mare Claus. lib. 2. cap. 1. Scot∣land and Ireland were antiently reputed Britain, Hiberma 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 dicta est Ptolomaeo.

  Mahumedes Acharranides Arabs—Mathematicus egregius qui ante annos 900. floruit, Terrae latitudinem, inquit, observantes à loco lineae aequalitatis (Aequinoctialis) versus Septentriona∣lem partem, insula Tile quae est in Britannia, ubi est majoris diei longitudo 20. hera∣rum, eam determinari deprehenderunt; Eriam & alii Thulen pro ipsa Britan∣nia usurpacunt seu Anglia, — & Albategnius de Oceano quà ab His∣panis respicitur, verba faciens; In co, inquit, à Septentrionali parte sunt Insulae Britannicae quae sunt XII. & post haec ab inhabitationibus elongatur, & quo pro∣cedat, ignoratur.
• * 1.89

  Mr. Selden observes a little of the use in the Defusedness of the antient Language, saying; Corwallensea in Anglia, linguâ semper usi sunt Cam∣bro-britannicâ, saltem velut Dialecto variatâ, uti etiam Aremorici in Galliis, Manniae item Insulae incolae Hibernicâ, unde tamen nemo est hominum qui velit sequi aut hanc Angliae Regibus, quâ Hiberniae sive Domini sive Reges fuerint, parere, aut illos ex Cambro-Britannici principatû jure aliq•• prin∣cipibus suis subjacere. Marc Claus. lib. 2. cap. 19.
• * 1.90

  Lib. 3. Sect. 265.
• * 1.91

  Pag. 374.
• * 1.92

  Pag. 44.
• * 1.93

  Lib. 2. Sect. 165.
• * 1.94

  Lancarvan, Lloyd, Dr. Powel.
• * 1.95

  Ex legibus Howeli boni.
• * 1.96

  Tydyn est domus.
• * 1.97

  Yet Mr. John Skene saith in his Chapter, de linea recta descendentium thus, Gif ony man deceasis, & lea∣vis behind him maa Sons nor ane, either he is Succomaanus, & haldis not his Lands be ser∣vice of Ward; and then his Heretage is divided amangst all his Sonns, or he is miles—la the quhilk case, the eldest Sonne succeedis in the ha•• Lands; quhilk heretably perteined to his father, &c.
• * 1.98

  Mr. S••ene under the Title of Scotia, saith, That King David 〈◊〉〈◊〉 first, in the third zier of his Reight, Ann Dom. 1126. Be his Charter maid, Omnibus Scottis & Anglis, tam in Scotia, quam in Lodo∣neio constitutis, gave to St. Cuthbert and his Mo••ks in Durh••m, the Laods of Coldingham, &c.
• * 1.99

  Minoris ae∣tatis.
• * 1.100

  Severus (saith Bedc) à caeteris in∣domitis gentibus non muro (ut quidam estimant••) sed vallot distinguendam putavit & Hit begyrde & ge∣faestnade mid ••ice & mid eorþƿealle, f•• am sae to ƿae, that is, and did girt it and firmed it with a Dike, and with an Earth-wall from Sea to Sea.
• * 1.101

  18. Leg. Regis Inae.
• * 1.102

  Bract. Lib. 4. Tract. 3. cap. 9. num. 5.
• * 1.103

  Anno 4. Ed. 1. Stat. 1.
• * 1.104

  In like manner doth Mr. S. labour to deduce it from a Saxon original, p. 107.
• * 1.105

  M S. Obit. Eccles. Heref penes Authorem. Paul in our elder Translation is ren∣dred the Knave of Jesus Christ, to ex∣press that which we now read the Servant of Iesus Christ.
• * 1.106

  The Land of Roger God save the La∣dyes, for the word Domina, saith Iudge Dodaridge in his Treatise of the Barons, pag. 151. signifies Ladyes or Dames, so women after fourteen years of age were called Dominae; as also those which were antiently navigeal women, (in earnest that's a hard word) and by our English Poets, Dames, &c. sed vid. Seldeas Titles of Honour, 1 part. fol. 53.
• * 1.107

  Leg. 24.
• * 1.108

  ☞
• * 1.109

  ☞
• * 1.110

  M S. Penes Autorem.