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 Ancient Britain's, 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 Gent. To which is added a short History of William the Conqueror, written in Latin by an Anonymus Author, in the time of Henry the First. Theogn. Gn. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. LONDON, Printed for John Starkey, and are to be sold at his Shop at the Mitre in Fleetstreet, between the Middle-gate and Temple-Barr. 1663. TO HIS MUCH HONOURED PATRON Sir EDWARD HARLEY, Knight of the Honourable Order of the BATH, etc. SIR, I HAD no sooner Reflected upon this my Resolution of engaging your Name in the Front of this Treatise; but was Conscious that probably (and perhaps deservedly) I might hereby attract the imputation of Impudence, not being confident or assured, that any thing may therein be found, which may afford either delight or satisfaction to You; or engage You to bestow upon it some few spare minutes (if such may at any time favour You from your greater or more serious Affairs). But finding myself in Gratitude deeply bound and engaged to make this public Testimony (though a slight one) of my thankful acknowledgements for those many and extraordinary favours, which I have received from You; the force of this Argument, made void the fear of the former. I have been much longer about this Task, than at first I did propose; yet I can assure you Sir, it met with above a years miscarriage, by reason of my last absence from England. The first Essay at it was made in Scotland, being immediately before my going thither by some Friends earnestly thereunto solicited, and unwillingly engaged; where I found but small leisure from my Employments, to accomplish their Desires: yet did credit, that your Affectionate engagements of me afterwards in Dunkirk, whilst you were Governor there, would have afforded some few hours to have rendered this Piece into a better shape and form; but it is not unknown to You, how and upon what grounds my Expectations were there also Frustrated; insomuch that these undigested Observations are but those I could (Raptim) by small parcels catch from my several Obligements. They are I confess for the most part Nocturnae Lucubrationes, Collected for a kind of Diversion, when Lassitude and Weariness proceeding from my daily turmoil of employment, invoked a Cessation and Repose; and in this sense only they may be justly said to smell of the Lamp: withal engaging me to restore again the Product of this time into your hands, from whom it was at first in some part Stolen. You have Goodness sufficient to Excuse what in them is amiss; to Methodise them in your own Thoughts; and to Impute that want of Mercury which I am assured you will find in them, to the predominancy of my then Martial planet: it being well known I had more Arms and Provisions of War under my Care, than Books or Papers in my Custody, which last had been by much more convenient for such a Work. Should this pass with your Approbation and Allowance, and stand Protected under your Umbrage; Censure cannot injure him, who shall think himself greatly honoured in being reputed, Much honoured, Your most Obliged and Humble Servant Silas Taylor. THE PREFACE. Courteous Reader, TO your View and Examination here is presented, not a Law-case upon the Tenure of Gavelkynd, (for that would have proved beyond the abilities of one that confesses himself no Lawyer; and professes himself ignorant in that Practice and Study, as the Author doth) but only the History of it; by which the whole design is, Historically and Rationally to investigate and trace the footsteps of it from Antiquity; and to inform you, that the exquisite Discourses of that excellent Person Dr. T. B. afforded freely to me then residing at Hereford, by his Epistolical correspondencies, gave the first ground and foundation of some inquiries into the Etymology of this most ancient Tenure. Since which time by several Friends, who had got a sight of those broken Observations I had made, and by others who accidentally had heard of them; I have received several Importunities to make them public. But lastly, a further occasion being unexpectedly administered, (some while after I had Collected those first Notes of this Tenure) by that industrious Gentleman Mr. William Summer of Canterbury, in his late Printed Treatise of Gavelkynd; I have intermingled those first Observations, with these my Animadversions on his Learned Discourses. I enter not upon this undertaking to Quarrel with him, (whose Labours, as they are Pleasant to such, who are Delighted in the Knowledge and Observation of the Manners and Language of our Forefathers; so have they been, and ever will be very profitable to all that are studious and inquisitive into Antiquity: for his success in the Restauration of that our ancient Speech, which had been almost lost, and in a manner so long buried in Oblivion, is very eminently known and admired, and shall by me be always gratefully acknowledged) or with a design to Carp at any thing that he hath Laboriously written: it being of all things the most odious, and as much unprofitable, for any to make that the end of Writing: (A crime whereof our world of Brytain of later days hath been too too guilty) Farr be such a snarling Genius from me! But I was wholly moved upon those grounds, and steered to those ends, which I have declared in the Proaemium of the first Chapter; to which (for avoiding needless repetitions) I freely refer myself, and desire your charitable judgement and ingenious censure. The whole Discourse relates to a Thesis; by some, not thought absolutely material, nor to be of general concernment in relation to the present usage of it; yet it hath a little more than a less attentive Reader may imagine. There will be found in it (I confess) some Reflections upon History; which though carrying a sense different from most Historians, are not (in my opinion) devoid of all probability; they being (I assure you) my real Cogitations, and such Collections that without force easily arise from the result of my Reason, and here are submitted to your examination. The mark I aim at, is to reduce things to their True and Genuine Originals; to which even nature inclines us by a natural propensity. If the work seem perplexed because miscellanious, or not pleasing to a severe rigid Critic because so intermixed; let the Tursss of Augarus (King of Edessa) build my Apology: who being at Rome, Procop. Hist. Pers. Bell. lib. 2. cap. 9 (the same I suppose whom Eusebius calls Agbarus) and for his Conversation much beloved of Augustus Caesar; after some long time of stay there, had an earnest desire of returning back to his Country; which Augustus being unwilling to grant; Augarus for diversion used much to Hunt, and in that Recreation compassing the Countries, took many wild Beasts alive: and from every Country where he caught them, carried of the same Earth together with the Beasts back with him to Rome. Augustus (as his manner was) sitting in the Circus, to him came Augarus, shown him the Beasts and the Earth, and which Country Earth belonged to every Beast. The Earth he caused to be laid in several parts of the Circus, and all the Beasts to be let go from one place; whereupon every Beast, leaving one another, ran to the Country Earth from whence he was taken. The Emperor beheld it long and earnestly, wondering to see nature untaught, make even to Beasts their native Earth desirable: of which Augarus made use as an Argument for his desire to return to his native Country. Augustus' overcome with the Argument, though unwillingly, yet granted his desire. This is that (I say) to which by Nature we have an inclination, and enforces a certain natural propensity, which tends us toward our first Original being: shall those Means than be slighted, which bring things distinctly separated to this first Source and Fountain? There is a kind of secret impulse, which with pleasure and delight carries us to this search; but what it is, we know no more than what is Sympathy. By this I was carried out to this Work, and hope (Courteous Reader) it will gain your favourable acceptation; at least (by way of excuse) to favour it with an abatement of your expectation of the exquisite ingredients of Language and Method; for (seriously) my rude Minerva cannot achieve them. All that I pretend unto, is to retire myself unto my Homely-antient-native Earth; than which, no other Turf at present better pleaseth me. If any particular by reason of the irregularity of this Discourse, may seem to be passed over, it is not the proceed of fear to enter upon the merit of the cause; or, in the least out of any design to prevaricate; and perhaps in those cases, (if any such there be) my thoughts are, and I am persuaded you will find, that such particulars under some one or the like Head have been already answered. My labour and intentive aim and scope hath been, as much as I could, to avoid Tautologies; which was a difficult task to be performed in such contests, where the Maxim received proves mistaken, or erroneous: which frequently engages a simular resiliency upon all Deductions thence enforced. I have made choice of such particulars, whereon (I guess) Mr. S. lays the foundation of his Structure, to be the Texts and Heads of my several Chapters; wherein is first shown the Probability, that in all first Plantations, there was the practice of Partition: next, that the Britain's (the Aborigenes and first Planters of our Isle) had the knowledge and usage of it: And that the several Invaders and Conquerors of our Island did not alter the ancient Laws and Customs thereof. That the knowledge and use of the word Savel, is still among the Cambro-brytains', (the scope of the whole work being to prove it of a British Original) and that all their Laws did centre anciently upon Partition. It discourses, when and for what reasons Primogeniture swallowed up Partition, and had the Preference; with several accidentals relating to the understanding of ancient History; which intermixture all the Sections and Chapters have; but in this, I shall refer you to them, or to the Table. The Latin Tract Printed at the end of this Book, (as I think, and I believe when you have read it you will be of the same Opinion) was wrote in the time of Henry the First, surnamed (by our Writers) Beauclerk, the Son of William the Conqueror, made above five hundred and threescore years since. In which are several matters to be found, that are worthy remark: among the rest a Catalogue (which I never met with in any History (before this) extant) of those that contributed Ships in the Great Norman expedition. I cannot guests at the Author's name; yet by what he concernedly insists upon in one place, I judge him to be a Monk of Battle Abbey, founded by William the First, near that place where he had the Victory over Harald: This is but Guess. However that this Treatise may not be (as it were) Buried, and to the Lovers of this Study, by reason of its smallness, not easily found: I have adventured to set it out, to accompany this my Discourse; for the use of those that are Lovers of Antiquity. I will not be too tedious in Prefacing, nor oblige any to think, that a plausible Prologue will better a bad Play; make trial, and if then (Candid Reader) this finds your Courteous acceptance, it will engage the not-confident Author in his other Studies to be Yours, S. T. A Table of the Chiefest Passages and Denominations in the following Tract. A. A Cangre in Hantescira Fol. 66 Adder about the neck of a new born Child Fol. 22 Adultery, the Forfeiture and Punishment of it Fol. 71, 72 Aethelbert King translated the Welsh Laws Fol. 53 Aethelstan King his Laws concerning the Welsh Fol. 52 Aetius the Consul, who, Fol. 36 Alban St. his Troubles and Death Fol. 32 Albania Fol. 86 Alured King his Laws of Mulcts, what, Fol. 54 Allegiance and Fealty by Oath its antiquity Fol. 55, 61 Alcabala or Alcavala in Spain, what, Fol. 114 Alphredus Magnus Translated the Laws of Molmutius Dunwallo out of British into Saxon Fol. 54 Alwi filius Turber de Rochborn Fol. 66, 68 Ambrose Telisinus the ancient British Bard Fol. 84, 85 Antiquity of the Welsh Laws Fol. 154, 155 Ancient Customs Fol. 70 Arms descend to Brethren by Gavel Fol. 139 Armorica expounded Fol. 146 B. BArds Fol. 19, 20 Bards Genealogists for the Britain's Fol. 20 The honour due to them Fol. 23 Base Brytain in France and Cornwall mutual understand each other Fol. 146 Bastards inherited with the Legitimate of Wales Fol. 28 The like in Ireland Fol. 153 Beer-Gavel Fol. 119 Bigott, what in signification Fol. 178 Boer, what, Fol. 175 Boadicea, Queen of the Iceni, her speech Fol. 32, 33 Bordmanni, what, Fol. 169, 172 Borough-English Tenure Fol. 102 Brehon Law in Ireland Fol. 99, 153 Brecknoc Fol. 94 Bristelmestune Fol. 116, 171 Britain's Anciently free Fol. 16, 35 Not exiled out of Kent Fol. 38 Co-inhabit with the Saxons Fol. 37 Their customs concerning Saints Fol. 91 Expel the Picts from Scotland Fol. 164, 165 Settle themselves, in the Lowlands of Scotland ibid. Descended of the Trojans Fol. 83, 84 British Language Fol. 12 British propriety Fol. 16 British Valour feared by the Romans ibid. British Baskets Fol. 31 British race extended Fol. 48 British Gavel and Germane Landscheuten the same Fol. 137 British Laws made by Molmutius Dunwallo Fol. 154 Collected and Reform by Howel-dha ibid. Brute Fol. 84, 85 Brutes partition Fol. 15, 16, 85 Brytania from Bryton Fol. 87 Buildings of the Saxons Fol. 79, 80 Buildings of the Normans ibid. Burgages, what, Fol. 171 C. Caer, what, Fol. 134 Castrum or Chester, what, ibid. Caesar's War against the Britain's Fol. 14 Repulsed by the Britain's ibid. He Conquered not Britain ibid. Calumniare in Law, what, Fol. 65 Camolodunum Fol. 34 Cambria, Camber, Cwmrt Cwmraeg Fol. 86 Cantref, what, Fol. 96 Canutus his Laws of Partition, Fol. 141, 142, 143 Caractacus Prince of the Silureses Fol. 34 He asserts the British Liberty ibid. His Protestation before Battle ibid. Castles on Borders of Scotland, etc. Fol. 79 of more Value than Land Fol. 28 dischaged Fines & Amerciaments Fol. 29 Cerdiford in Hampshire out of Domesdey Fol. 65 Cennedl, what, Fol. 132 Characters of Saxon Fol. 76 Charters of Saxon signed by the Norman Kings Fol. 76 Changes from Villeinage to Gavelkind Fol. 157, 158 Chief Justice Fol. 69 Chiefs in Urchenfield Fol. 110 Chedder in Somersetshire Fol. 117 Children no Kindred to the Parents Fol. 131 Churl, what, Fol. 168 Cities their Original Fol. 7 Claudius his Temple Fol. 34 Claim and Recovery of Lands against Normans Fol. 65 Clergymen Gentlemen, by the Welsh Laws Fol. 173 Clown or Colonus, what, Fol. 168, 177 Cohabitancia, what, Fol. 7 Conan Tindaethwy, Fol. 26 Conquest and Conqueror, what, Fol. 56 Coverfeu Fol. 74 Constantine the Great Fol. 87 Common Laws Fol. 69, 145 Counties not anciently in Wales Fol. 94 Competition betwixt Kent and Urchenfield Fol. 106 Cornish understand base British and Welsh Fol. 146 Cottagers and Cottages, what, Fol. 169 Cuntune in Hampshire Fol. 66 Customs that are ancient Fol. 70, 150 Customs of the Welsh Fol. 71, 132 Cwmmwd, what, Fol. 96 Custom and Common right Fol. 152 D. D. DAvies his Welsh Dictionary Fol. 98 Danelaege, what, Fol. 54, 57, 58 Danish impression on our Laws Fol. 54, 55 Daniel Samuel examined Fol. 57 Deeds for Gavelkind Fol. 124, 125, 126 Deeds explained, produced by Mr. S. ibid. Discourses Polemical much irregular Fol. 3 Divisions, intestine facilitate Conquests Fol. 16 Division of Wales Fol. 96 Domboc, what, Fol. 53, 54 Domesman, what, Fol. 110, 111 Donald the 5th. lost Scotland to the Saxons, etc. Fol. 163, 164 Ð●pihinge, what, Fol. 70 Druids Fol. 16 The British Judges Fol. 17 Their Learning ibid. Their judicial employments ibid. Their determinations of right ibid. Caused execution of penal Laws ibid. Britain their Gymnasium Fol. 17 They cease Fol. 19 Dubritius, Prince and Bishop Fol. 90 Dûn what it signifies Fol. 116 Dun a paix in Scotland Fol. 165, 166 Dutch Landscheuten, what, Fol. 136, 137 E. EDgar King his Laws, what Fol. 54, 55 Confirmed by the Conqueror Fol. 58 Edgar Etheling Fol. 60 Edlin expounded Fol. 49 Edward King his Laws Fol. 55 Confirmed by the Conqueror Fol. 58, 59 Edward King his Laws concerning the Welsh Fol. 51, 52 Edwin and Morchar Earls Fol. 6● Edric Silvaticus or Savage Fol. 7● Eldest Son among the Britain Fol. 49 English recover Lands against the Normans Fol. 65, 66 English Normanized Fol. 76 England Fol. 87 English settled in Scotland Fol. 162 Engine or Urchinfield their Kings Fol. 44, 45 Errors once received and taken for granted Fol. 2 Erdisley in Herefordshire Fol. 79 Escuage, anciently Fol. 171 Ethelbert King his Translation of the Welsh Laws Fol. 53 Ethelred King his Laws of Trial Fol. 64 Eubages British Philosophers Fol. 20 Exchequer, when erected Fol. 74 F. FAshions, Saxon and Norman Fol. 74, 75 Fealty or Allegiance very ancient Fol. 55 Fee, feudum or feodum, what Fol. 170, 171. fee-tail its original Fol. 170 Feminine conduct amongst the Britain's Fol. 33 Feofamentum vetus & novum Fol. 140 Fight forms changed by the English Fol. 77 For-gavel Fol. 118 Fortifications of Romans, Saxons, and Normans Fol. 77, 78, 79 Forfeiture of Lands upon what Grounds to King William Fol. 67, 68 Fortalices Fol. 79 Fortified houses ancient ib. Foster-childrens in Wales divided with Foster-brethrens Fol. 28 Freemen or liberi homines, what, Fol. 108 French do use partition Fol. 11 French tenure of partition Fol. 12 French, how used in our Laws Fol. 69 G. GAbles, Gablum, Gabulum what, Fol. 113, 114, 115 Gabelle among the French Fol. 114 Gablum signifies rend Fol. 116, 117, 158, 159 Gablatores Fol. 117 Gabella Fol. 123 Galfridus Monumethensis defended against Polydore virgil Fol. 83 customs Fol. 11 colonies Fol. 12 Gavel as Mr. S. expounds it, what, Fol. 112 Gavel-Gyldam Fol. 119 Gavel-man Fol. 120 Gavelate, a Writ Fol. 121, 122, 123 Gavel in denominations Fol. 89, 90 In the British Dictionary Fol. 92 What it signifies Fol. 92, 93 Not imposed by the Normans Fol. 95 Used in Welsh subdivisions of Lands Fol. 96 Several sorts of Gavels Fol. 102, 103 Welsh Laws for Gavelkynd Fol. 103, 104, 105, 106 Gavelkynd a mark of the Ancient Britons Fol. 152, 153 The hinge of the British Laws Fol. 155, 156 Gavelkind in Scotland Fol. 159 Gavelkind, Throughout the Kingdom of England Fol. 4 In all first Plantations Fol. 5 Antiquity of it Fol. 18, 137 Among the Princes of Wales Fol. 24 The signification of it Fol. 26 The evil and mischief of it Fol. 27, 81. The best use of it Fol. 27 That it is extra Cantium Fol. 89, 151 Gavelkind in the Term owes itself to partition Fol. 149 Gavelkind in the Statute of Wales Fol. 98 Practised in Urchenfield Fol. 100 Held rend free Fol. 123, 124 Gavel-kind Lands in the King Fol. 128 Granted to Hospitals, how, Fol. 124, 128, 129 Granted to Religious Societies Fol. 129 Not to be forfeited for Felony Fol. 106, 107 Garrison of Normans in Hereford, before William the first Fol. 78 Gentlemen by the British Laws Fol. 172, 173 Germane Customs anciently Fol. 7 Germane partition in Principalities Fol. 9 137 Germane partition in private Estates Fol. 9 Germane partition evicted by a jest Fol. 9, 10 Germane Landscheutan, what, Fol. 136, 137 Give-all-kynne Fol. 130, 131 Gildas Camberius translated Molmutius Laws into Latin Fol. 154 Glamorganshire Conquered Fol. 94 Gothick work used by the Saxons Fol. 80 Guorongus Viceroy of Kent Fol. 41 Gueily-gord, what, Fol. 105 Gymnasium of the Druids was in Britain Fol. 17 H. HAcana and Westanheconi, what, Fol. 44, 45 Hecanae Wulfhardus Episcopus Fol. 44 Hengist and Horsus Fol. 37 Hengists' reception of Kent examined Fol. 37, etc. How Hengist had Kent Fol. 45 He altered not the Kentish Laws Fol. 49 Heutland Fol. 90 Henry the first commands the observation of King Edward's Laws Fol. 61 His Laws of partition Fol. 144 Hereditary succession amongst the Britain's Fol. 18 Heriot Fol. 108 Herring-gable Fol. 116 Highlanders in Scotland anciently Britain's Fol. 160 Hony-gavel Fol. 118 Howeldha Fol. 25 He made not the Welsh Laws Fol. 153, 154 When those Laws ascribed to him were compiled Fol. 97 Hugo de port, against Picot Fol. 66, 67 I. I Arsey Isle Fol. 11. 95 No venomous Creatures therein ibid. Ina King his Laws concerning the Welsh Fol. 50, 51. 64 Joseph of Arimathea Fol. 32 Irish Rhein-taloon, or partition Fol. 99 Irish and Welsh one Language originally Fol. 145 Irish and British Laws agree Fol. 153 Irish understand the Manc and Highland Languages Fol. 146 Ireland and Thule called Britain Fol. 145 Italian partition Fol. 12, 13 Juryes Fol. 61, 62, 63 Juryes among the Welsh Fol. 64 Jus Angliae both in Socage and Knights-fee Fol. 139 K. KEntish-British Laws not altered by Hengist Fol. 46 Kent invested in Hengist Examined Fol. 37 Kent changes her Gavelkind Fol. 81 Kenneth King of Scots expels the Picts Fol. 163 Kent had four Kings at one time Fol. 45 Kingsland Fol. 44 King Ethelmund ibid. King Pibanus of Ergin Fol. 44. 91 Kings, Gorvodius, Milfrith, etc. Fol. 45 Kings-Bench Fol. 69 Kindred, what it is Fol. 130, 131 Knave, whence and what Fol. 176 Gods-cnave ibid. Knight-service in Wales Fol. 103. 107 Knights-fees descended to the Eldest Fol. 138 Kind Fol. 27. 130, 131. 133 L. Landscheutan Germane Tenure Fol. 135, 136, 137. Land-shifting, Landskistan Fol. 136 The Saxon denomination of partition Fol. 143 The proper Kentish appellation Fol. 144, 145 Land anciently not valuable Fol. 6. 28 Languages Of Scotland Fol. 76 Saxon, English, and French Fol. 75, 76 English not changed by the Norman Conquest Fol. 75 Welsh the remains of the and British Fol. 17 Laws of King Edward confirmed by the Normans Fol. 58, 59 Lawes-common not written Fol. 69 Lawcases ibid. Laws of England overthrew Norman intruders Fol. 65 Learning of the Druids Fol. 17 Legales homines, or Yeomen, marg. Fol. 63 Lieutenants of the Saxon shores in Britain Fol. 39 Lempster from a Church of Nuns Fol. 44 Lewes in Sussex Fol. 71 Lesley Bishop of Ross in Scotland an Historian Fol. 163 Lewis Island in Scotland hold Gavelkind Fol. 160 Liberty of Englishmen Fol. 81 Liberi Sokemanni, what, Fol. 148 Ll●●, what, Fol. 90 Llanfrawtwt a College anciently founded Fol. 90 Llangattock Gafael Me●bon ibid. Litthfield Chronicle Fol. 58 Loager, Loegria Fol. 86 Lona●● Fol. 87 London a Memorial of Troy Fol. 83 London, its Laws very ancient Fol. 55 Lower Germany uses Partition Fol. 11 M. Mails Fol. 120. 133 Manors or Circuits in Wales anciently Fol. 96 Marquesses, Lords Marchers Fol. 42 Mayor, whence derived Fol. 49 Menavians understand Welsh and Irish Fol. 146 Merewoldus a King Fol. 43 Merimnus a King Fol. 44 Mercelin a King ibid. Merchenlaege, what, Fol. 54, 57 Mate-gavel Fol. 118 Mickel-gemote Fol. 65 Military fees Fol. 149 Morgan Fol. 132, 133 Monmouthshire Conquered Fol. 93 Mortimer Radulf Fol. 78 Mulcts different in rate in England Fol. 59 Mulmu●us Dunwallo British Legis●tor Fol. 154 His Laws Translated into Saxon Fol. 54. 154 N. NEifes what anciently Fol. 169 Normans Of their Conquest Fol. 56, 57 Of their Alterations ibid. They altered not the English Laws Fol. 57 Of their Laws in Normandy or Neustria ibid. Employed in England before William the first Fol. 78 Their entering into Wales Fol. 93 Their original from Norway Fol. 58 O. OAth of Allegiance Fol. 55. 61 Oat or Oale-Gavel Fol. 113 Doin, what, Fol. 174 Ollavintone in Berkshire Fol. 73 Offa's Ditch a limit Fol. 43 Opinions received, hardly removed Fol. 1 Ostorius Publius Fol. 34 P. PAganus, Pagan, what, Fol. 168. 175, 176 Palatinates Cheshire and Glamorganshire Fol. 94 Pandeborn in Berkshire Fol. 68 Parliament Fol. 65 Parceners per le Custom Fol. 147, 148 Partition Used in first Plantations Fol. 6 Used by the Israelites Fol. 8 Antiquity of it by sacred and profane Authority Fol. 9, 10 Made use of by Brute to his Sons Fol. 15, 16 The Custom of Wales Fol. 28. 103. 156 Among Males and Females Fol. 100, 101 Used by the Saxons Fol. 141, 142, 143 Used by the English Normans Fol. 144 Not in the Term Gavelkind Fol. 147, 148 Whether ratione rei, aut ratione Terrae Fol. 149 Continued in Wales by Statute Fol. 153 The manner of it among the Welsh Fol. 156 Pencennedls or chiefs among the Britain's Fol. 23. 97. 132 Jews Fol. 23 Scots Fol. 24 Irish Fol. 97 Pelagian Heresy set against Fol. 90 Penda Pibanus King of Urchenfield Fol. 44. 91 Piben, what, Fol. 174 Picts, They injure and repulse the Britain's Fol. 36 The Picts wall ibid. Planters at first, the condition of them Fol. 5 Placita, what, and Plead anciently Fol. 68, 69 Plead in French Fol. 69 Pluntune Fol. 116 Powisland, Divided, subdivided, and Parcell'd Fol. 25, 26 Polydore Virgil examined Fol. 83 Privileges of Urchenfield Fol. 108. 156 Primogeniture preferred Fol. 82. 138 Price Sir John his defence. Hist. Brit. Fol. 84 Pride-gavel, what, Fol. 112, 113 Primogeniture in Scotland, w●y, Fol. 166 R. Read-gavel Fol. 119 Reguli or petty Kings Fol. 15, 45 Regulus and Rex Fol. 42 Referrees of Howel-dha what they did Fol. 155 Relief Fol. 108 Rents reserved Fol. 7 Rent how to be understood Fol. 115, 116 Rents several sorts Fol. 117 Rent Land, what anciently called Fol. 119 Rhandir, what, Fol. 96 Rodeley in Gloucestershire Fol. 112 Roderic the Great Fol. 24 Rogerus Deus salvet Dominas Fol. 177 Rochborn in Hampshire Fol. 66 Roturier of France Fol. 11, 95 Rowena Hengist's Daughter Fol. 39, 41 Roman Empire parted Fol. 87, 88 Romans Altered not the British Laws or Customs Fol. 29 Greedy of Conquests Fol. 30 Their proceed in the Conquests of Judaea Fol. 30 Of Greece ibid. Of Britain Fol. 30, 31 They used words of the British Language Fol. 31 Set up a false Will for the Emperor Fol. 32 The effects of it Fol. 32, 33 They desert Britain Fol. 35 S. Saisson and Saisnaeg, how to be understood Fol. 86 Saxons, They Co-inhabit with the Britain's Fol. 37 They defended the Picts wall Fol. 38 Whether they extirpated the Britain's or no ibid. They break their Article with the Britain's Fol. 38 Their Piracies Fol. 41 They fail in their trust Fol. 42 They expelled not the Britain's Fol. 47 They borrowed many British words Fol. 48, 49 They used British Laws and Customs Fol. 49 They intermix their Saxon with British Fol. 50 Their Laws provide for the British Inhabitants Fol. 50, 51, 52 They used Partition of Lands Fol. 141 Their Nobility, who, and what, Fol. 70 Concerning their Characters Fol. 76 They wrote Latin anciently in Roman Letters Fol. 76 They change their forms of Fight Fol. 77 Sand-gavel, what, Fol. 113 Sealing and signing of Charters Fol. 72, 73 Serjeanty Grand and Petit Fol. 171 Servi, what anciently Fol. 169. 172 Servitude not in England Fol. 81 Scotish Language Fol. 76 Scot and Lot, what, Fol. 78 Scotland Fol. 87 Scotish-Socage-Land Fol. 159, 160 Scotish with their Language had the Saxon Customs Fol. 161 Scotish tongue before William the Conqueror ibid. Scots receive the English temp. Willielmi primi Fol. 162 Scotish Tongue when first received Fol. 162, 163 Scotish bounds in Scotland Fol. 165 Sherborn against Warren Fol. 65 Shires not anciently in Wales Fol. 94 Soc and Sac, what, Fol. 177, 178, 179 Socage Land changed Fol. 139 Socage Land anciently partible Fol. 89, 139 Spersold in Berkshire Fol. 73 Surnames, when first used Fol. 176, 177 Suit and Doom in Urchenfield Fol. 111 Swyddog a Magistrate in Welsh Fol. 93, 173 Swine-gavel, what, Fol. 115, 116, 118 T. Talaeth, its signification Fol. 25 Tania in Brytania Fol. 85 Teliesin, Ambrose Telesinus Fol. 84, 85 Tenure of Wales Fol. 26 Tenors Jocular Fol. 72, 169 Tenors Military, etc. intruders on Gavel-kind Fol. 137 Tenenda's ad Gavilikendam, what, Fol. 124, 125 Tederlec in Hampshire Fol. 68 Terra ex Scripto Fol. 144, 145 Thanes, Theynes, what, Fol. 173, 174 Thanes a Military honour Fol. 140 Theodosius the Emperor Fol. 87 Title of the Conquerors Laws Fol. 59 Troy, Troynovant, Trinobantes Fol. 83 Trojan Britain's Fol. 82. 85 Trojans the Britain's Ancestors Fol. 83, 84 Trojan Laws in London Fol. 55 Tribute or Tributum, what, Fol. 115 Tydyn, what, Fol. 156 Tylwyths Their signification, manner and use Fol. 21 How they were Recorded Fol. 22 Their use as to Gavelkind Fol. 23 V. VErolamium Fol. 34 Villages and Villeinage the Original of them Fol. 7 Villeinage changed into Gavelkind Fol. 157, 158 Villeinage lost in England Fol. 81 Villati or Villani Fol. 97 Villains, what, Fol. 168, 172 Anciently among the Welsh Fol. 107, 108. 174, 175 Before the Norman Conquest Fol. 168. 171. 173, 174 In Kent Fol. 167 No name of reproach Fol. 168 Vortiger King Engages the Saxons Fol. 36 Wageth them against the Picts Fol. 40 His wisdom in waging them ibid. What he gave to Hengist Fol. 45 His Deposition and Restoration Fol. 40 Urchinfield. Kings of it Fol. 44, 45 Customs of it Fol. 71, 107, 108, 109, 110 A Region Fol. 109 A Liberty Fol. 110 A Hundred ibid. Their manner of judgement Fol. 110, 111 Their manner of Partition Fol. 156 Their privileges Fol. 108, 156 Usages of several sorts Fol. 102, 103 Vallum Severi, what and where Fol. 165 W. WAles Fol. 86 Walingford Fol. 115, 116, 71 Wardship among the Welsh anciently Fol. 104 Warham in Dorsetshire Fol. 101 Welsh, what, Fol. 86 Welsh Customs Fol. 71, 109 Welsh Juries Fol. 64 Welsh derived from the Greeks Fol. 85 Welsh-men understand the Cornish and Manc Fol. 146 ƿere, what, Fol. 71, 72 Westsaxonlaege, what, Fol. 54, 57 William the Conqueror Confirms the Saxon Laws Fol. 58, 59 Takes notice of the old British Laws Fol. 60 Afraid of the English after his Conquest ibid. Swears to King Edward's Laws Fol. 61 Commands the Observation of King Edward's Laws ibid. Engages the Normans against the Welsh Fol. 94 Windsor Fol. 116 Wittangemote Fol. 65 Wulfhardus Episcopus Hecanae Fol. 44 Wulpher King Fol. 43 Y. YEomen, what, 63. Marg. Younger Brethren by Gavel gives Arms Fol. 140 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: impressions 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, Lib. 1. though of their own Country, if done before their own time, all alike, from one as from another, without examination. Mr. Somner, in his Treatise of Gavelkind, hath laboriously evicted the common Etymologistical notion 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 question that path he hath showed 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 Generations, by the like misfortune that befell our Forefathers 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 only Apologise in his own words, and desire the Candour 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 myself 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, refuted: not unwilling to desert it, if, upon trial, it may prove unsound and spurious; and accounting it as thankworthy 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 continued by too little. This being by him most ingenuously urged, I will not Apologise any further; only desire the favour to introduce that at this time to him, which I formerly made use of to my most worthy friend Dr T. B. of Q. C. Oxon. upon the selfsame 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 study (quod à nobis qui musis & modestiae litamus procul absit) sed cupiditate quâdam cognoscendi; & veritatem si fieri potest ab injuriâ vindicandi: and if any thing beyond or besides this can be found in this following Tract, I shall willingly and readily stand corrected: only 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 erroneous 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 careful as I can to shun them. The Method I resolve upon is by Chapters, deduced into Discourses upon several Corollaries of Mr Somner's. In the first place than we will discourse CHAP. I. Concerning first Plantations, double Portion to the Eldest amongst the Jews, Partition Anciently 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 Tenure by which all the Sons, upon their Father's decease, 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 Kingdom, etc. 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 only of the Kingdom, but have spread itself rather over the whole, by the Conqueror's means, whose inclinations and endeavours to propagate and implant here the Customs of his own Country, are too eminent and notorious to be doubted of. I may by the same reason argue, that this Custom being Current in more ancient times, might have its being not only in the time of the Saxon Government, but its beginning long before. And for my part I make no question, but in elder times it was the custom of all Europe, if not of all the World: especially then, when the inhabitants, by reason of their paucity, could so easily afford Ground and Room to their branching and spreading Generations. Such thoughts had Thucydides of the first Plantations and Incolae of Greece; For it is evident (saith he) that that which is now called Hellai, (viz. Greece) was not of old constantly inhabited; but that, at first there were often removals, every one easily leaving the place of his abode, to the violence always of some greater number;— and every man so husbanded the ground, as but barely to live upon it, without any stock of riches; and planted nothing (because it was uncertain when another should invade them, and carry all away, especially, not having the defence of Walls) but made account to be Masters in any place, of such necessary sustenance as might serve them from day to day. They made little difficulty to change their habitations;— for, the goodness of the Land increasing the power of some particular men, both caused Seditions, (whereby they were ruined at home) and withal made them more obnoxious to the insidiation of Strangers. And a Modern Author out of Homer writing of those first a Sallust. cited by Mr. Selden in his Mare Claus. l. 1. c. 7. de aborigiaibus in conjurat. Catilinae (saith they are) Genus hominum agreste, sine legibus, sine imperio, liberum atque solutum. Planters, saith, In 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. Then was it (I believe) that they prudently used this kind of partition, which extended itself no further, than a division of Stock and Goods, by it equally to enable all the Participants to settle to a Livelihood, and decline Rapine; which was the use and practice of the first Incolae. This is also described by thucydides, discoursing of the ancient Greeks, reporting, That they in old time, and such Barbarians as in the Continent lived near unto the Sea, or else inhabited the Islands, after once they began to cross over one to another in Ships, became Thiefs, rifling the weaker, and made this the best means of their living, being a matter at that time no where in disgrace. This (saith Thucydides of his own Age) is manifest by some that dwell on the Continent, amongst whom, so it be performed nobly, it is still esteemed as an Ornament. It was in those elder times that Riches consisted, not in having a propriety to Land, but rather in the numbers of Servants to manage and defend their great Stocks and Herds of cattle. (And this I guess to be the reason, why many have rationally derived Pecunia from Pecus, and * It was long after the first Plantation of our Island that Money was in use, and longer before the King's Dues were paid in Mony. For Judge Doderidge out of Gervasius Tilburiensis, a learned man, who flourished in the days of King Hen. 2. in his Dialogue of the observation of the King's Exchequer, hath in effect as followeth: Until the time (saith he) of King Hen 1. the King used not to receive Money of their Lands, but Victuals for the provision of their House, and towards the payment of their Soldiers Wages, and such like charges; Money 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 money 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 money, the levying of which sums they appointed to the Sheriff, taking order withal, 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 money, because they thought that the Money in time would wax so much the worse for the wearing. Ex Camden & Littleton Treatise of Nobility, pag. 118, 119. Pecunia in our ancient Saxon Laws is often made use of for Pecus) And then we must imagine them rather Pastors than Landlords, such who changed their Lands at pleasure, and their habitations together, for the better accommodation of their Stocks; w●ose wealth was summed up as Job's, by Servants and cattle. But as People multiplied, and their numbers increased; so, that they had not conveniency of wand'ring as formerly, by the reason that Lands were generally occupied, according to the abilities of Families in their Stocks and numbers of cattle, than did Land also by degrees become impropriated, observing nevertheless the same manner of partition of such Lands, as before they had done of Goods: for as before, when they might have had Land enough, what should they have done with it without Stock? so now when Land was impropriated, what should they do with Stocks without Land? And for fear of that violence I before discoursed of, came first of all Cohabitancia, that is, living together in Society, which, without any disgrace, was Villeinage; and so from Families risen 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 ancient Germane customs; Caeteris servis (except those only employed about Merchandise) non in nostrum morem descriptis perfamiliam, ministeriis utuntur: suam quisque sedem, suos penates regit. Frumenti modum Dominus, aut pecoris, aut vestis, ut colono injungit: & servus hactenus patet. Here was their ancient manner of living, their ancient 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 Antiquity of Partition of Lands, we shall find an example thereof in the holy Scripture, where it seems to me, that the Community of the Law, and the Knowledge of it, are both taken for granted; this being a Case of Law resolved upon a question, and it is to be found in the 21 Chapter of Deuteronomy, verse 7. where, though the Case be in Bigamy, yet there we find an Order of Partition, which was to be observed, even nolenti patre; If a man hath two wives (saith the Text) one beloved, and another hated, and they have born him Children, both the beloved and the hated, and if the firstborn son be hers that was hated, than it shall be, when he maketh his sons to inherit that which he hath, that he may not make the son of the beloved firstborn before the son of the hated, which is indeed the firstborn, but he shall acknowledge the son of the hated for the firstborn, 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 firstborn is his. This Law provides, that the eldestson, notwithstanding the father's hatred, shall have his right in all whereof the father was possessed, according to the Rule of Right, which was thus: In case a man had five sons, the father's possessions were divided into six parts, and the eldest had by right two of those parts: By this we may observe the Antiquity of the Partition of Lands and Goods, constituted even amongst those People to whom God himself was Legislator; and it is observable, that it was at the first Plantation of the Land of Canaan, where to me it seems, that this Law glanceth at the fundamental of Dividing, binding up the father to do this rectified Justice to his son got of the woman hated. * Which Law, as Mr. Selden illustrates it, may seem to be grounded upon the practice of Noah— Noachus & tres filii ejus, Semus, Chamus, & laphetus (qui velut Adae, in generis humaai post diluvium instaurationem personam jam simul induerant) Domini pro indiviso rerum omnium sacti sunt. Formula donationts est Genes. cap. 9.2. Crescite & multiplicamini— & replete terram. Pavor vester & Tremor vester erit super omne animal terrae, & super cunctum volatile coeli, etc.— Et scimus ex sacris literis Tellurem à Noachid is seculis aliquot post diluvium esse divisam. A Japeto & filiis ejus divisae sunt Insulae Gentium in terris suis unusquisque juxta linguam suam, & juxta familias suas in nationibus suis, Quod in Genes. 10.25. & 3. ait Moses, Scilicet, à Tanai fluvio usque in Mare Atlanticum s●u per Magnam Asiae Occidentalis, quae in Septentrionem vergit, partem, praeter totam Europam, limitibus juxta familiaru● rumerum designatis, sedes ut Domini privati accipere. Quemadmodum Chamus posterique ejus, non dissimili modo, quod Austro & Africo expofitum est; & Semus plagas Orientales usque ad Indiam— Invaluit etiam Traditio, ipsum Noachum, perinde ac si totius Dominus in solidum aut Arbiter per comoromissum suisset, distributionis hujus s●●l privati hujusmodi Dominii post diluvium instaurationis autorem suisse, idque 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, juxta oraculnm divinitus acceptum, eamque anno aetatis sua 930. (qui à diluvio erat 330. & ante obitum ejus vigesimus) Testamento firmâsse, atque moribundum illud in Semi silii primogeniti ma●us tradidisse, cunctosque simul monuisse; nequis corum fratris fines invaderet, nec injuriâ alter alterum afficeret, quoniam inde, ut discordiarum atque bellorum intestinorum causa oriretur, foret necessum. Selden, Mare clausum, lib. 1. cap. 4. To which I think fit to subjoin what he writes in the same Book, cap. 8. how this partition was mystically, in the mist of their inventions observed by the Heathen: Vera sunt quae loquuntur Poetae (ut rect è Lactantius) sed obtentu aliquo, specieque velata. Et sic veritatem mendacio velaverunt, ut veritas ipsa persuasioni publicae nihil derogaret. Fabuloso, quod diximus tempore devictis scribunt Titanibus, sort Mundum divisisse Deos fratres, jovem, Pluronem, Neptunum. jovi Coelum, Plutoni Inferna, Neptuno Mare cessisse. Rejectis autem augis illis de sydereo heic coelo seu aethere, de infernorum seu mortuorum regno, & demum de Terra tota fratrum omnium, post divisionem communi, quibus patienter sibi imponi vulgus sinebat, res 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 & superior visa est ideoque coelum dictum) jovem Regem fuisse. Plutonem autem accidentis quae solis recessum Noctemque ●stendit, unde inferior ea dicta & inferna. Maris denique & interjectarum Insularum Dominum fuisse Neptunum— è Lactantio porra scribit. jupiter Neptuno imperium dat Maris ut Insulis emnibus & quae loca essent secus Mare omnibus regnaret— johannis 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. Sir Henry Spelman (in Verb. Gaveletum) thinking Gavelkind to be of a Sàxon Original, affirms it to be brought out of Germany, and describes the Tenure of it very justly: Qua omnes filii ex aequis portionibus, patris adeunt hereditatem; and out of Tacitus proves it to be Mos vetus Germaniae. Out of whom I shall add by way of explanation, what he in his Tract de Moribus Germanorum, saith, Haeredes tamen successoresque sui cuique liberi: & nullum Test amentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi: This proximus gradus argues precisely for this ancient usage, although it had not been set down to be Mos vetus Germaniae; and (deduced from these ancient Times) we find it also to this day (even in regno adeundo) among the Princes of the Germane Empire; which was once very wittily evicted by a merry Gentleman, or, as some say, the Duke's Jester, who perceiving (after the death of one of the Dukes of Saxony) the Brethren participants (claiming according to custom their Apportionments and Divisions in the Dukedom with the Elder Brother) involved 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 Primogeniture) his Gown, undertaking to show 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 Closet, with his Penknife cuts the Gown into long shreds from the shoulders to the bottom, and in this injured and spoiled form returns with it on, to the Duke and Council; who wondering at this fancy, He told them, That the Dukedom, as yet, was like the Gown as it was lately, perfect and in order; but that which was now insisted upon, was to render the Dukedom as he had done the Duke's Gown. But to prevent the like mishap 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 entire, 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 showing the usage of it in France, demonstrating how it takes place even in Paris itself, 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 Relics of those ancient Customs, taken up and used upon the Plantation of this part of the Continent at the first, and from hence in probability it is, (as some imagine) that the Britan's of England must look for their true Ancestry, both as to Customs, Language, and Progenitors: concerning which, I shall refer you to Mr. Camden, whose labours have set up such a light as can never be extinguished, who discoursing of the first Inhabitants of Britain, (misdoubting the History of Brute) faith, That hereupon it may be concluded, That the ancient Gauls, Inhabitants of the Country now called France, and the Britan's of this Isle, spoke one and the same Language; and by necessary consequence, the Original of the Britan's 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 than by all reason and congruity in Britain, so near and no less plenteous than the rest. And Dubartas doth observe, that most probably all Plantations were by Colohies out of the East, which in time (as it were gradatim) overspread the West and North; and not * Martiaus Zeillerus in his Hispaniae & Lusitaniae Itinerarium, out of a deseription of France, wrote by Franciscus de Rues, writing of the Province of Bigo●re, tells us by way of wonder and special remark, that Mos hic obtinuit, ut primogenitus omnium bodorum paternorum haeres evadat, sive nobilis sive ignobilis. only France, but Italy itself (the Garden of European Policy, which some would have to be) a Colony also out of Gau●, thinks no dishonour to retain her old Customs, in preserving this Tonure of Partition of Lands from her first Planters. Which was observed by one William Thomas, that wrote a description of Italy, Anno Domini 1549. who in his third Chapter averrs, That the Inheritance of Lands in Italy goeth by Gavelkind; that is to wit, one Brother as good part as another: So that if a Conte (which is as much to say as an Earl) have twenty Sons, every one of them is called Conte, and the youngest hath as good part in his Father's Lands and Goods as the eldest, unless it be in the Estates of Princes, as of Mantova, Ferrara, Urbino, and such others, which the eldest evermore enjoyeth. And by this means it is come to pass, that in process of time, with change from Wealth to Poverty, there be divers Earls and Marquises without Land or Goods, retaining nevertheless the glory of that name to them and theirs for ever. And I have read in a more Modern Author (who doth not ascribe it to any reason, but only 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 happened right upon their Tenure, though he denominates it by such a Term as is utterly unknown to any Italian, but observes, that the Tenure is generally among the Families there, excepting those who of latter days, by force or fraud have wrested themselves from the Dominion of the Roman Empire, and in such places the eldest Son inherits, whilst the other Families still maintain their old Customs, though to the ruin and subversion both of Names and Families. Which Custom cannot fancy to be an Innovation of latter Ages, but an Impression from the ancient Inhabitants, when first they did spread themselves in Colonies over Latium. This, for the proof of the general usage of this Partition of Lands in most parts of Europe, and the probability of its use amongst the first Planters of any Nation: Proceed we next to show, as being very consonant to the investigation of the Original of this Tenure, CHAP. II. The Condition of the Britain's when Caesar found them; That Gavelkind was anciently among them: Of (the British Judges) the Druids, of their Bards: Of their Tylwyths: Of their manner of Partitions and Laws concerning their Gavel. JUlius Caesar resolving upon a War against the Britain's, for their frequent assisting the Gauls, had in the first place to do with the Cantiani, whom he Ennoblisheth with the Character of being more civil than the rest of the Britain's, and renders the reason to be their fire upon the Shore, and so the more adapted for Traffic and Commerce with the Gauls, who were generally than more civilised than they. These Parts upon Caesar's * Beda cap. 2. writing of Caesar's preparations to invade Britaany, saith, Navibus ectoginta praeparatis in Britanniam transvehitur, ubi acerbá primum pugnâ satigatus, deinde adversà tempestate correptus, plurimam classis partem, & non parvum numcrum militum, equitum verò penè omnem disperdidit— Iterum in Britanniam primo vere transvectus, dum ipse in hostem cum ingenti exercitu pergit, Naves in Anchoris stantes, tempestate correptae, vel collisae inter se— dissolutae sunt. Ex quibus 40 pericrunt, caeterae cum magna difficultate repar●tae suat. Caesaris equitatus primo congressu à Britannis victus; ibidem Labienus Tribunus occisus est. second Invasion, first yielding themselves unto him: (the Second Invasion I term 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 than calls Britanny untouched: 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 Romanis.) In this small Cantle or Parcel of our Is●e, * The same Discourse hath Mr. Selden to another purpose, concerning these four Kings, which because it is to my purpose in several particulars of this ensuing tract, I shall here adjoin as a Marginal note, to which I desire the Reader to have reference,— 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 Britanni, Maris Domini fuere, qui maritimis civitatibus seu provinc is imperabant: Veluti Cingetorix, Carvilius, Taximagulus, Segonax in Cantio; alii in Regnis, Belgis, Durotrigibus, Damnoniis, Trinobantibus, Icenis, Coritanis (populis qui Sussexiam, Surriam, agrum Hamtoniensem, Dorsetiam. Devoniam, Cornwalliam, Essexiam, Norfolciam, Suffolciam, Lincolniensem agrum occupabant) id demis caeteris. Name & Caesar ipse interiorem partem jasulae 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 exterous' hosts bellicis; ut videre est apud Caesarem, u●i sum●a imperii bellique administra●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. Caesar found several 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 Albanact; which kind of Partition, if in the least probable 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 himself 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 repel 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, Valiant; for their Valour was so Renowned, that the Roman Soldiers, some time after Caesar's Life, through fear of them, made a Mutiny, when they understood they were designed for Britain, murmuringly alleging, that their Masters sent them out of the World to War; 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 * Prolegom. D. Briani Walton in Bibl. Polyglot. 1. S. 14. Where he Writing of Languages, saith, Quaedam tamen inter linguas nobis cognitas quasi cardinales 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, & Bricannica, cujus reliquiae adhuc in Walli● manent. Et in Sect. 20. Walli nostri (scribit) sive Cambro-Britanni à Saxonibus ieter-asperes & incultos montes depulsi, linguam longè antiquiss. Britannicam minime permistam, adhu● conservarunt, ut scribit Doctis: Cambdemus. Imo ipsis persuasum est linguam suam aunquam interituram, ut ex Telesini carminibus liquet. Gaul, of whom Caesar thus Discourseth; It certo anni tempore, in finibus Carnutum, quae Regio totius Galliae media habetur, considunt in loco consecrato; huc omnes undique, qui coniroversias habent, conveniunt: eorumque (viz. Druidum) decretis & judiciis parant; Disciplina in Britannia reperta atque 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 youth; which Learning of theirs was not preserved 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 Memory; and for the easier fixing of them there, were made into Verse. But now let us consider their Judicial employments, Caes. Com. de Bello Gallico Lib. 6. which Caesar also in a short Epitome bestows upon us, in these words, Name 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 constituunt; 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, public 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, etc. but that of which I would have an especial Consideration, and Animadvertency, is in these words, Si de Haereditate, 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 seized, excluding his other Brethren? in this small Summary of Judgements, 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 according to Custom, that it should so descend, I know not with whom the Controversy 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 Controversy, (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 occur. But put the Controversies together, (as Caesar hath joined them) that were submitted to the Judgement and Sentence of these Druids, which I am persuaded 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 finibus 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 Inheritance, which being to be parted by our Gavel among the Brethren, would require much use of the Wisdom and Moderation of the Druids, and also of their Authority, to set out to every Brother or Participant his portion or part, without giving cause of Distaste to any. For we see, where this Tenure at this day is in Force, that in case the Proprietor of such partible Lands, leaves only but one Son after him; there can be no Quarrel, but that, that only Son enters upon, and possesseth the Land without Competition or Corrivallship. 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 * Pliny, lib. 30. c. 1. 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 Conquests, by the achieving of that memorable Battle in the Island of Mona, (at present denominated Anglesey.) 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 * De Galliis. Ammian. 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 Bardos & Eubages & Druidas; & Bardi quidem fortia virorum illustrium facta, heroicis composita versibus, cum dulcibus lyrae modulis, cantitarunt. Eubages vero scrutantes summa & sublimia naturae pandere, conabantur; inter hos Druides ingeniis celsores, etc. 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 Cognizance 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 Pedigrees right, and to preserve them free from confusion in their Collateral lines; By which care and art, (notwithstanding their Tenure) they kept all unconfounded. Then first know, that their Genealogies, especially of their principal Gentry, runs seldom 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 Derivation, than 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 purpose: 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 itself into several Tylwyths, or Houses, these Bards preserved the Memorial thereof, and observed this method in their ordinary Memorials of Families. They carry not 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 itself) 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 Battle. Ellen Daughter of Theodore King of South-Wales, and Sister to that noble Rees ap Tudore or Theodore. 2. Driffyn ap Mainarch. 3. Drympeck ap Mainarch. Moreiddig Warwin: he was born with an Adder about his neck, for which cause he forsook his Paternal Coat, and gave the three children's Heads, their Necks enwrapped about with so many Snakes Proper, etc. and of him are issued the Vaughan's of Brechnock-shire, and many other Gentlemen, who are termed Tylwyth Voreiddig. 1. Gwgan ap Blethin. 2. Cadivor ap Blethin Gryff. Gwyr: from whom the Families of Brechn. Glamorg. and Carmatthenshires' come: called Tylwyth Howel-Melyn, that is, Howel-Melyns Posterity. Owen Gethyn, from whom many Gentlemen in Brechnock-shire are descended, called Tylwyth Owen Gethyn, that is, the Posterity or Tribe of Owen Gethin. Here you see this Bard hath not only vouchsafed unto us the Tylwyths arising out of this short Pedigree, but also the very meaning of the word in the English. Thus were their Memorials preserved by them, who the better to infix them, and also for a greater stimulum to Heroic Actions, in their Songs deduced from Age to Age delivered to them from their Predecessors, did celebrate the Praise of their Worthy Men; which Custom, in some places, they yet retain. And of so great account were these Bards, that by the Laws of Howel-dha, an honourable 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 show, not only the Originals of Families, as if their work had been merely 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 Germane Proximus Gradus) may make an unconfounded use of their interest, according to the Rules of Partition by their Gavel. I told you before, how in all their Pedigrees there was a preference of Primogeniture, which was only in honour 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 Penennedl of each Family, who, as the Prince of their Tribe and Kindred, was always had in much honour and reverence among them. Which respect was like that wherewith the Jews did honour their Chiefs, mentioning them with that title of respect, in calling them sometimes Heads of their Father's house, other-while Chief men; and in other places of Scripture they are made known by this account, viz. By their Generations, after the House of their Fathers; and in this form did they enrol their Bands of Soldiers for the War, for it is written in the Chronicles, 1 Chron 7. and 8 chapters that David assembled all the Princes of Israel, the Princes of the Tribes, etc. unto Jerusalem. Numb. 25.44. In like manner it is recorded in Numbers, that the name of the Israelite that was slain was Zimti, the son of Salu, a Prince of a chief House among the Simeonites. And in the following verse it is remembered, that, The name of the Midianitish woman that was slain was Cozbi, the daughter of Zur; he was head of a People, and of a chief House in Midian. Where this order of Partition was in force, there is it most necessary that Genealogies should be most exactly kept; and by the Mosaical Law so great care was taken in this point, that the Tribes were not permitted to have mixtions together by Intermarriages. And although in many of the Highlands 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 show 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 Child's head is bound uppermost, at this time, as Doctor Powel hath critically observed. But that it may be the more plain and perspicuous, take it Genealogistically, thus: Roderick surnamed the Great Prince of Wales. 1. Mervyn Prince of North-Wales. 2. Cadelh Prince of South-Wales. Howel-dha, in whom the Territories of North-Wales and South-Wales were united, and was the second Legislator of the Britan's, An. Christi 942. 3. Anarawd Prince of Powis. After several Successions, which I purposely omit to save the labour of needlessly lengthening 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 apartment of, Powis-land betwixt his two sons 1. Madoc, who had upon the Division that part that was called Powys-Uadoc, or Madoc his Powis; He died Anno D. 1160. at Winchester, and was called the Prince of Powys: he was a true friend to the King of England. Susanua, daughter of Gruffyth ap Conan Prince of North-Wales. 2. Gruffyth Prince of Powys, had another share of Powys land. 1. Gruffith Maelor had for his share Bromefield, Yale, Hopedale, Chirk, etc. 2. Owen Vachan had Mechain-Iscoid, etc. 2. Cadogan ap Blethin. 1 Owyn Brogynton, a base son of Madoc ap Blethin, had Dynmael and Edeirneon. And Doctor Powel in his Additaments to the Cambrian History, in those (I mean) that he hath set betwixt the years 808. and 810. gives a full Discourse of the Primitive use of this Tenure, and also of the Modern abuse thereof. For upon those great Feuds that arose betwixt the Descendants of Conan Tindaethwy, upon this account of Partition, He writes thus. Here I think fit to say somewhat of the Custom and Tenure of Wales; whereof this mischief grew, (viz. the Feuds betwixt Brethren, the Rending the Government in pieces, etc.) that is, the Division of the Father's Inheritance amongst all the Sons, commonly called Gavelkind; Gavel is a British term, signifying a Hold, because every one of the Sons, did hold some Portion of his Father's Lands, as his Lawful Son and Successor. This was the cause, not only of the overthrow of all the Ancient Nobility in Wales, (for by that means, the Inheritance being continually Divided, and Subdivided amongst the Children, and the Child's Children, etc. 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 History of the Descendants of Conan Tindaethwy) and many other in this History, (He means in Lancarvan's British History.) * I could wish that those Renowned English Plantations in America would examine of what avail this in probability and policy may be to them, and in particular to the most famous Plantation of Virginia, the most fertile and most consonant to English bodies, of any whatsoever, and will ●ove of greatest use in time to the English Nation. 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 Country, 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 Kin. This it was that gave me not only some examples of the use of it among the Welsh, but also an interpretation of half the name; for I find the Doctor himself in these Additaments to this Welsh 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 Pedigree, 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 Brogynton, (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 Courage. I confess this passage did at first stumble me; with some others of the like nature, till seriously observing and comparing together the Laws of Howel-dha, I had as to the British History, a great deal of light administered, which enforced me from my Incredulity, to admire the Observer or Continuator: I gathered 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 probably 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 occasion 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 Partition 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 considered with the and Stock wherewith that Land was to be managed; for those Mulcts and Impositions of Fines and Amerciaments, mentioned in the Laws of Howel-dha, were very severe; because than they were imposed, and did proceed from such things as were their greatest Riches; and was not only in Money, but principally in of all sorts, which was their Stocks; and this leads me to examine whether, and to show that CHAP. 3. Neither the Romans nor the Saxons altered our ancient Laws. Of the ancient 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, etc. 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 Britain's 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 Impression 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 unprofitable; 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 Grecian Commonwealths: The Roman Conqueror showing to one of them a better Division of their Country, in relation to the more orderly Existency of their Republic, 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 ancient 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 Garrisons, (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 Freedom. 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 Ceremonies of the Druids: and though I must yield, that from the Romans the Britain's had most part of their Civility, in the use of Habits, manner of Warring, Buildings, Baths, etc. 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 Britain's left some relics of their Language among the Romans; for what, the Inhabitants of this Island had, that to the Romans were reputed Rarities, to them did they accept of British appellations, smoothing them into their own Idiom. The Britain's at that time were famous for their Art in Contexture of Baskets, being things very much by the Romans desired, who hearing the Britain's 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 Distich: Barbara de pictis venit Bascauda Britannis, Sed me jam mavult dicere Roma suam. So Calerva, Britannicè, Caturfa. 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 linguam receptis, notissimum ipsarum rerum quas significant sive in Galliis sive in Britanniis usum satis iadicari à nemine non agnoscitur. 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 others, which Mr. Camden hath Collected, and for brevity sake I omit. Return we then to show how that the Romans, after a long Warr being Victors, did not alter the fundamental Constitutions or Laus of the Inhabitants of Britanny; all Histories that relate to those Ages, affirm, that they had their Liberty as to the Worship 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 Britain's had the glorious Gospel of Christ Jesus, shining in several parts of this Land, by the Preaching of Joseph of Arimathea, 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 participant 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 wellformed 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 Injury that exasperated Boadicea, the Queen of the Iceni, but the Toll-gatherers, and Publicans, who attempted 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 seized 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 Britain's, that it well near sent the Roman Eagles flying out of this Island, and still doth leave a remark to Posterity of the great Sense our Ancestors had of their Rights and Liberties, even in those Elder, Rude, and Unpolished times. They doubtlessly 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 * Annal. lib. 14. Tacitus. The quarrel was, their Liberties violated, upon which she thus addresseth herself to her Britain's; Solitum (saith she, when the two Armies were Ranged) quidem Britannis foeminarum ductu bellare, testabatur; sed tunc non ut tant is majoribus ortam regnum & opes, verum ut unam è vulgo; libertatem amissam, consectum verberibus corpus, contrectatam filiarum pudicitiam ulcisci; and concludes 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 Britain's 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 freedoms, which must (I say) be those that they enjoyed by their proper and ancient Laws and Customs; and in this affair, (before the Battle) to such a height their just rage was incensed, that like a furious Torrent, 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, Caractacus the Prince of the Silureses, in the like sense did deliver himself to his Soldiers; even then when he was about to fight the last deciding Battle for the British 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 practice 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 pepulissent; quorum virtute vacui a securib● & pributic intemerata conjugum & liberorum corpora, retinerent. These were their fears, these their doubts; the recovery of their Liberty and Freedom 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 enforced, 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, ignorabant; soli sibi nati, & semper sibi liberi. Here again we see the sense the Britain's had of their Liberties and Laws; who notwithstanding they were bridled by several Garrisons and Colonies of the Roman Soldiers, yet durst show their faces in Battle, (choosing 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 Customs fared in the next grand revolution. After some time that the Romans had bereft Britain of those of her youth, that had been tra●●ed up in Military discipline, which should have been the strength of her Walls, and force of her Fortresses; and had by reason of those great and dangerous Diversions into other Lands, left this Island naked, and so consequently to shift for itself; there was some time passed in Confusions, rather than in Government; in Usurpations, rather than Settlements; some one or other here investing 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 devolved at last we find it, in whose Reign the Picts, like an impetuous inundation, break in upon the Northern parts: and notwithstanding that wonderful relic 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 Impoverishing all: The Britain's unable to confront them, having lost their Soldiery; and the rest of them so effeminated, Circa Ann. Salutis humanae 443. 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 afric, together with one Bonifacius, of both which * Hist. Bel. Vand. l. 1. c. 4. Procopius writes; that they were Valiant and expert Soldiers, inferior 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 Britain's 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 afric: but from him they gained nothing; so that at the last, Vortiger engages to their aid certain * This Mr. Selden hath also Collected by his Observations; 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 urbem, quae nunc vulgò Danemarc nuncupatur, ac in omni armatura robustam: His, igitur immensa 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 Saxons, who had enured themselves to Ryracies, and were Rovers at Sea, under the Command of two Brethren Hengist & Horsus: They with nine thousand Saxons undertook the defence of the forementioned wall against the Picts; which they prosperously and successfully performed. The entertainment of these people, who had will, and by degrees power to enforce and subject them, was the first Original 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 Britain's, although by the common opinion of Writers he is said to have bestowed upon Hengist the Kingdom 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 order of one that seemed to be in possession of an entire Regal authority over the greatest part of this Island; nor can I digest the notion of * Susceperunt ergò qui (viz. Saxons) advenerant, donantibus Britannis, 〈◊〉 habitationis INTER EO'S, ca conditione, ut high militarent etc. Bed: Eccl. hist. l. 1. c. 15. They had Lands assigned to them among them; not the Lands and Possessions of the Britain's assigned. Hengist his forcible usurpation of Kent at this present as a Kingdom 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 Kingdom, against the wills or consents of the proprietors? for I much question whether all his power conjoined (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 inhabitants, upon a contract or gift of Vortigers to Hengist, would have so tamely submitted themselves to an everlasting exilement from their ancient seats and places 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 able 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 considered, First, that the Saxons were not near that number they first brought in, (as I said before) by taking notice of a proportionable force probably left to guard the wall; reflecting upon the quantity that wall would necessarily require for its defence. These Pictish Invasions were done at such time, when the * Bede reports, lib. 1. c. 13, 14. of his Ecclesiastical History, that the Britain's were very sorely afflicted with a Famine, and enjoying suddenly a great plenty, fell to Luxury and sloth, and were so effeminated. Britain's (as Gildas reports them) were in intestine feuds among themselves; by which it so fell out, that they did not go jointly 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, than the Britain's 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 enjoyed 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 Britain's had been expulsed, what became of them? or where were they replanted? this would have received as great a * Or at least such a Note as this action at this Town received from the Saxon Chronologist, Anno Christi 490. Hic Ella & ●issa (urb●culam) Andredescester obsederunt, omnesque ibi exinbi habitaruat oc●idebant: neque ibi exinde Britannus unicus (vivus) relictus fuit. Note in History as the Planting afterwards of the Britain's in Armorica: but that which would cause me most to wonder, is, that in the midst of so many revolutions, changes and the hard fortune 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 thereof; but what I discourse of is of that Tract of time in the Reign of King Vortiger) here we must understand 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 depredations of the Saxons, who it seems had used that Trade of infesting these shores, long before the Romans quitted our Island; which when they had deserted, these were the men, that * Initum namque est concilium, quid agendum, ubi quaerendum esset praesidium ad evitandas vel repellendas tam feras, tamque crebe●rimas gentlum ●aquilonarium irruptiones: placuitque omnibus cum suo Rege Vortigerno, ut Saxonum gentem de transmarinis partibus in auxilium vocarent, etc. Hist. Eccl. Bed. l. 1. cap. 14. Vortiger waged against the Picts; prudently believing I guess it, by his wise placing of them) that his employing and engaging them would at one and the same time, not only case these Shores from their own frequent depredations; and preserve them from the inroads of others of the same Country and Trade; but also engage 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 censure 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 Saxons to enter his Kingdom, or his own personal vices, that made him so distasteful to his Subjects, I will not take upon me positively to resolve; sure I am, I find him expulsed 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 Kingdom, he traced the same path of Prudence chalked out to him by the Romans. For Mr. Lambert out of William of Malmsbury reports, that in the time of this King, there was one Guorongus viceroy or Lieutenant of Kent, and Mr. Cambden gives us an account thereof (worthy of much note) Vortigernus Guorongum Cantio praefecit (i.e.) proregem sieve libertum, quo nesciente (observe this) hanc regionem (ut habent Ninnius & Malmesb.) statim Hengisto Saxoni in gratiam Rowenae, 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 Mr. Campden gives several accounts; for in one place he finds them denominated Comites litoris Saxonici per Britanniam, and in another place Viri spectabiles; and tells us that in Maritine Affairs they were so well skilled (writing of the Saxons Piracies) that; ad eorum depraedationes coercendas * Selden. Mare claus. in interserend: in fine. Mr. Selden hath diligently observed this. In libris Notitiae (saith he) it a legitur, Sub dispositione viri illustris Magistri peditum praesentalis Comites militum infrascriptorum. It aliae. Africa. Tingitaniae. Tractus Argentoratensis. Britanniarum. Lito is Saxonici per Britannias. Tam in Alciati quàm Pancirolli editione legitur, ut heic, Militum infrascriptorum. Dubitari nequit, quin pro Militum, limitum fuerit substituendum. Neque enim ratio officiorum Imperialium patitur ut Militum ibi locum habeat. Et certissimum est ex iis quae sequuntur, Italiam, Africam, Tractum Argentoratensem, Britannias, & litus Saxonicum suos habuisse Comites, ut Comites Limitum, non aliter ac Territoria quae ibi proxime subjunguntur, velut Mauritania Caesariensis, Tripolitani, aliae itidem provinciae, quae praeter Britannias, suos pariter habuere Deuces, nomine Ducum limitum, etc. Comites litoris Saxonici per Britanniam & Galliam constituti fuerant: for the Saxons (I say) had long before 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 * The Sovereign Power hath always had, and used the privilege of making 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, Deuce Warwici, in d●gnit atem Regis, ab Henrico Rege Sexto, non solum jasulae Vectis, verum & Sarniae & Caesareae, ad quas caeterae in hoc tractu. civiliter spectant, creato. De Insula Vecti idem memorat vir optimus Gulielmus Camdenus, idque 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 quoque 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 Richardus 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 usque ad Henrici Octavi tempora posteriora, Regis ibi vicem omnina suppleret) titulo ac dignitate possidere proculdubio non dubitavit. By which Custom brought down so near our age, and deduced from the practice of ancient times, it is no wonder that we find so many in several ages dignified with that Title, either as an especial mark of Honour, or by the privilege of descent, as the Earls of Derby at this present are with the Title of Kings in Man. was an ancient Custom among the Britain's, and after them of the Saxons, to give the Title of Reguli to all Lords that had the Charge and Custody of * From this it was that in the time of Rich. 2. came up first the Title of Marquesses, which is a Governor 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 Britain's or Welsh, etc. not then subdued, men of much valour, not only sufficiently able to encounter the inroads and invasions of the enemy; but also willing to make onset of them, and enlarge the Conquest; These men thus placed, were of high blood, credit, and countenance among their Countrymen the Normans, and in whose faith and power the Conquetor reposed special confidence and trust, and therefore in their Territories given unto them to hold their Tenors, were devised to be very special, and of great Importance, and their Honours enriched with the Name and privileges of Earls of Chester, and for the North-border of Wales created to be a County Palatine, and the Barons of the middle Port of the South Marches, were adorned in a manner with a Palatine Jutisdiction, having a Court of Chancery, and Writs only among themselves pleadable, to the intent that their Attendance might not thence be driven for the Prosecution of Controversies, and Quarrels in the Law; and as for the other part of the South Marches, they seemed sufficiently fenced with the River of Severn and the Sea. My business hath been to make it probable that these Reguli were Lords of Marches and Limits long before the Norman conquest, to which I refer you; neither were those Welsh limits fenced by Severn; but for many hundreds of years, by Offa his ditch. Marches and Limits: the names of many Honoured with that Title I can show: especially such as were Custodes or Keepers of that Famous Limit betwixt the Mercians and Britain's, set out by that Renowned ditch which Offa the King of Mercia drew; a Memorial of some of them out of an ancient * Hist: M S. penes Author. M S. Chronicle that I have, I shall exhibit, wherein such persons were not only called Reguli, but also Reges. Penda (saith this Anonymous Author) did spread his Kingdom of Mercia very far, about the year of Christ 620. for he slew in Battle two Kings of Northumberland, Saint Edwin, and Saint Oswald; and three Kings of the Eastangles, Egric, St. Sigebert, & Anna. The said Penda had by his Queen Kineswith sive Sons, Wolfer, Saint Ethelred, Saint Merewald, Saint Mercelin, and one other, (This without a Name in this place was his Eldest Son Peada) and two Daughters, Saint Kynesburg, and Kyneswith; he Reigned 30 years. Wulpher was the first King of the Mercians that received the Faith of Christ, and he married St. Ermenild the Daughter of Ercombert King of Kent, by his Queen St. Sexburge: Germanus vero ipsius Westanheconorum Rex Sanctus Merewoldus: married St. Ermenburg the Daughter of Ermenred the King, Brother of the said Ercombert, and by her had three Daughters, all of them Saints, two of their Names were Milburg and Mildrith, and one Son St. Merimnus, who being dead, his Uncle St. Mercelin did Reign in his stead. Here be several Kings whose Names you will hardly find in the Chronicles. But * M S. vol. 4. in Biblioth. Bodl. Leland in his Itinerary reports out of some Books in his time found in Religious houses, that this Merewaldus, whom he calls King of the Marches, built a Monastery for Nuns at Lempster (which in the Britsh is called Lian-Llieni, Lleian signifying virgo Vestalis, Sanctimontalis) in English, the Church of Nuns, and endowed it with all the Land thereabout, saving only 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 Northwest 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 doubtlessly mistaken to be put as Successor to Utellus, but should have his place betwixt Podda and Ecca Bishops of Hereford) in his signing to the Charter granted to the Abbey of Winchelcomb, Anno Dom. 811. writes himself thus, Monast. Angl. pag. 127. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ego Wulfhardus Hecanae (Quae nunc Herefordiensis dicitur) Episcopus consensi & subscripsi. And Math. of Westminster writes that he was Bishop of Hereford in the year of our Lord 765. at that time when Offa King of Mercia procured of Pope Adrian an Archbishop's Seat at Lichfield. Many other Reguli were in these Merches, for they did consist of several frontier Jurisdictions: I have found some very ancient, as of Pibanus King of Ergin (now Urchinfeld) the Grandfather of St. Dubritius the Archhishop of Caerleon in the Reign of King Arthur: of one Gorvodius' King of the same place after him. But I cannot let pass that which I found in a Record transcribed into a Register book of one of the Bishops of Hereford, certified 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 fortify his gift to the Church) in it; to be in plena Regia potestate. Milfrith, the principal Benefactor, if not Founder of the Minster at Hereford, is denominated sometimes Regulus, sometimes Rex. Four Reguli in Kent at one and the same time witnessing to a Charter of one of the Kings thereof. In the time of Julius Caesar, Cambd. in Brit. Quatuor erant Reguli qui Cantio praeerant, Cingetorix, Carvilius, Taximagulus, & Sego●ax; upon which Mr. Campden makes a jest, saying of Caesar; quos ille u● Reges de vicisse videatur, Reges vocat, cum tantum Reg●li fuerint, vel melioris no aenobiles. Hence I collect, that these Reguli were a constitution, at least a Custom anciently among the Britain's; that Guoronged was a Regulus of Kent; and that Vortiger did probably bestow no more upon Hengist 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 upon the Britain's were such, as gave them liberry to take to themselves what Titles, and what of other men's 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 immediately before possessed, he could not have any colour or Power by that gift to drive out the Britain's from their Possessions; or so much as infringe their Customs; such an Act would much misbecome the interest of Vortiger to suffer, or consent that his people should be delivered up to the spoil and slavery of the Saxons; his very restauration (I before spoke of) is a strong argument against that opinion; for what protection could the Britain's have expected from him, that had (supposing the Story true) joined with strangers their Enemies, in the dispossossion & destruction of his own people, and Subjects? the same Improbability do I impose upon the alteration of Customs; I might ask 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 Country; who methinks could not but be ' contented, to find himself and his, settled 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 custom in dispute among others used by the ancient Britain's, and intermeddled not therewith; and this especially, for that I look upon it as a true and genuine Stem of the Customs and Usages of the Original Planters, remaining here unaltered, through these two grand revolutions of Roman and Saxon Power. But a little more to clear it; let us consider the State and Condition of this Nation, in their turmoils with the Saxons; and examine whether the Britain's were totally extirpated from such places in other parts of this Nation, where they did spread their conquering Arms; I think by comparing the sense of Histories together, it will appear probable, that where the Saxons are reported to have constrained the Britain's 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 conditions they could for themselves with the Conquering Saxons. So I find in the * In the little History published by Mr. Whcelock found with the Saxon M S. of Bede, writing of the settling of the Kingdom of the West Saxons, it is thus Recorded, that Cerdic and Ciaric his Son, six years after they Landed in Britain, Invaded that Province, & ƿaerdn ða aerestan Cyningas þe ƿest Seaxena land. on ƿealum geeodan. (i.e.) iique erant primi Reges, qui Occidentalium Saxonum Regnum INTER WALDOES perdomuera●. Cities of Excester and Hereford that the Saxons there first placed in Garrison, were only the Shoulders, who permitted the Britain's in quietness 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 Saxon Armies as were necessarily to be employed at one and the same time throughout this Island, for the erecting of seven Kingdoms, underseven several Generals or Kings, to have subsisted; had the Country Britain's, I say, deserted their Ploughs and dwellings, and desisted from their Agriculture; neither could so many Villages be so well replenished by the Saxons only, in so short a time, had not the Britain's made their abode, and stay in them, as we may plainly perceive they were, by those ancient donations of several of the first Heptarchical Kings; in which are recited oftentimes the British names of the incolae of several Villages: for the fuller understanding whereof, I refer the desirous Reader to the most ancient donations to Glastenbury, made public by the Collections in Monasticon Anglicanum. And I believe my affirmation grounded upon so much probability, that (notwithstanding the settling of the English Speech so Generally) the greatest part of the Inhabitants of England at this day, were it possible exactly to derive their pedigrees from those elder times, would prove to be Britain's; 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 ennaturalized Britain's: and seldom do we find or hear, that an invading Army did outnumber the people of an invaded Country; 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 Graziers; considering the Britain's never surceased their claims, nor were weary of infesting them, pertinaciously endeavouring to regain their losses. I rather believe they got themselves into possession of those Villages and Towns, that they had thus wrested from the Britain's, and such of them as had not Spirits by Arms 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 borrowed of the Britain's, 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, Bright, from the British word Birth which signifies their Waddecolour which was a lightblew. Minsh. 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 derived from Major, Greater; but from the British word Miret, which is, custodire, to keep and preserve; So Edlin which Mr. Summoner's expounds to signify Nobilis, splendidus, inclytus; a word found also in the High and Low Dutch very familiarly, yet Doctor 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 myself to have been much troubled, to have found it in the Laws of Howel-Dha; where it may as well signify all the King's Children, as one; though even among the Welsh some Honourable mark was afforded to the Eldest, above the rest: perhaps as it is found in the Germane, it may be a relic of the old Language. I could tire the Reader by citing numbers of the like; but by these and the like, it seems to me, that the Saxons coinhabiting with the Britain's, did by that means grafted a mongrel Speech, entertaining 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 Customs and usages; for when they first came over, they were Barbarous, whereas they found the Britain's civil; they were Heathens, the Britain's (mostly) Christians; So that the Saxons, either out of a desire of quiet, or else upon good liking and approbation, did yield to the reception of most of those * Similiter olim apud Britones temporibus Remanorum in regno isto Britanniae 〈◊〉 Senatores, qui postea temporibus Saxonum vocabantur Aldermann●, non propter aetatem, sed propter sapientiam & dignitatem, etc. In leg. 35. Edovardi confessoris. 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 reason it is, that we find most of our ancient Law terms to be British, and not (as they are mistaken) to be, Saxon, as Murder, Bastard, etc. In Denominations of places, they intermixed the two Languages; Winfreton (a Village in the County of Hereford) participates of Winsre, which out of the British turned into Latin, is, Fluxus Vagae, (Vaga is the Latin name of the River Wye,) and Tun, which is purely Saxon, being an addition of theirs, hath no affinity with the British; so it is in Wintreton, or Winterton, which is compounded of the British Wen-tre, (i. e.) Villa alba, with the addition of the Saxon tun, 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 Romans had the addition of Belgarum, to distinguish it from many other Venta's, Tun 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 coinhabitation; which being of so great a value to find proved in relation to our matter in hand, I shall notwithstanding proceed to prove it further by some Authentic 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 expression; Wallus censum pendens annuum, etc. and again, Wallus virgarum metum duodecim solidis redimito; and Wallus quinque terrae hidas possidens, 600. solid. estimanaus est; this Inas was King of the Westsaxons; and had, as it plainly appears by these Laws, Britain's dwelling with his Saxons. I purposely pretermit the 55th. 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 73d. Law of the same King, not only a difference 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 Welshman that Kills a Freeman; though in the Body of that Law this Freeman is called an Englishman; and in the Title of the 31. Law is this note, Be cirlisces moans 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, etc. by which Law it seems that these Walli were the only Pagani; for that the whole Law refers to Wallus: but King Edward the Confessor give● us a more particular note hereof, writing 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 hujus, etc. 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 Brytannia, post adventum Saxonum Germaniae, scilicet post acceptam sidem à Beato Gregorio per Sanctum Augustinum, etc. Et universi Angli qui tunc temporis exiterunt, uxores 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 praedicti, etc. Et tali modo effecti fuerunt Gens una & popolus unus per universum Regnum Brytanniae miseratione divina, etc. 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 ancient accord, and an equal respect to the Britain's 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 Freeman) 70. Solidorum esto. By this we collect the Britain's were not expulsed; that they did co-inhabit with the Saxons, and maintained 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 * Speed, l. 7. c. 18. Mr. Speed delivers out of William of Malmesbury, William Thorn, and the Register of Canterbury, (and hath relation to the Kingdom 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 spoke the Saxon tongue; their Language before was British, with the rest of the Island; 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 * Bedas Eccl. Hist. l. 2. cap. 5. ait Ethelbertum Cantiae Regem scripsisse idiomate Saxonice, libellum cui nomen indidit DECRETA JUDICIORUM, atque judicia illa vel sua memoria tradit suisse observata; Aluredus in praefatione legum satetur se ex Ethelberto sumpsisse nonnulla. Quid plura? Asserius Menevensis olim Aluredo REgi familiaris, prodit ipsum Regen Saxonicis mandasse literis JUDICIORUM DECRETA, verum ad nos non pervenire injuria temporum; this out of the Glossary to the Saxon Laws, under this word LIBER JUDICIALIS. reference in several places of the Saxons Laws, to an Older Book of Laws, as if these were but only Excerptions out of it; as in the fifth Law of King Aethelstan, de irruptione in Templum, it is said, Triplicis Ordalii sententia convincatur, is prout in Libro habetur judiciali compenfato; and this in the Saxon is called Domboc, (not of the same nature as the doomsday 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 signify 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, etc. is etiam id compensationis quod in Libro judiciali continetur, praestato; * Leges Molmutii Duawallo●is Gildas Cambrius in Latinum sermonem transtulit, & Alphredus Magnus in Saxonicum. Balaeus in vita ejusdem Molmutii. which Book I suppose contained their ancient 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 Britain's and the Zealous-Primitive-Christian-Saxon Kings; to which Laws, (and perhaps may be the effect thereof) Eleutherius the Pope or Bishop of Rome counselled 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 improperly called) viz. Merchenlaege, Westsaxonlaege, and Danelaege, which not at all relate to a different Law, Kind, Custom or Usage, but to several sorts of Amerciaments, 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, etc. 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, Edward the Confessor looks not at all upon the Laws as altered, but saith, they were asleep for above threescore years; as in a Discourse concerning them he hath it: and magnifies them so highly, that in his Restoration of them, he would have them thought to be very Ancient, though he reports them made by his Frand-father * Omnes proceres regni, & milites & liberi homin●s univ●●st totius regni Britanniae facere debent, in pleno folcmote fidelitatem domino Regi coram Episcopis regm. Hanc legem invenit Arthuru●, qui quoadam suit inclytissimus Rex Brytonum, & ita consolidavit & confoederavit regnu●n Britanniae universum semper in unum. Hujus legis authoritate expulit Arthurus praedictus Saracenos & inimicos a Regno, lex enimista diu sopita fuit & sepulta, donec Edgdrus Rex Anglorum illam excilavit, etc. In leg. 35. Edovardi Confessoris 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: notwithstanding all which, when he comes to the Corroboration of the Privileges and Immunities of the Ancient 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 believe) are coetanious with the ancient 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 veteris Magnae Trojae; & ufque in bodiernum diem leges & jura & dignitates, libertates, regiasque consuetudines untiquae magnae Trojae in se continet,— & consuetudines suas una semper inviolabilitate co●servat. Here I shall observe, that as well as London enjoyed her Privileges and Immunities, not at all infringed, from so great Antiquity, notwithstanding the several revolutions 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 Customs, Laws, and Tenors from as great Antiquity; but I have done with this revolution; let us now inquire what probability we have to believe that CHAP. IU. William the Conqueror 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 * The Denominations here of William the first by Conquestor or Conqueror, and this the Norman Conquest, have stumbled many, looking upon it as if it carried with it, the enslaving 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 pretences from King Edward the Confessor were made known, as in the following Tract appears, by the constraint and force that Harald put him unto, to get his Settlement by Battle with him; which word of Conquest is to this day familiarly used in Scotland, to signify Land purchased; and Mr. John Skene saith upon the word, that Conquestus, signifies Lands, quhilk person acquiris & possessis privato jure, vel singulari titulo, vel●ti donatione vel singulari aliquo contractu; Quhilk is conform to the Civil Law, ubi quae stus dicitur lucrum, quod ex Emptione, venditione, locatione, conductione, vel generaliter ex opera cu jus descendit. l. coiri. 7. cum seq. ff. pro Socio; and further writing of Lands so purchased, concludes; Conquestus dicitur ratione primi conquestoris, & cum transmittitur ad ejus haeredem, exuit naturam conquestus, & induit naturam haereditatis. Norman Conquest, concerning which also, we have so great a plenty of Writers, that they almost extinguish the Truth with their Comments and Conceits; all the alterations imaginable are fathered upon this revolution, and summed up by Mr. Samuel Daniel in these words: I come to write of a time, (meaning this Norman affair) wherein the State of England received an alteration of Laws, Customs, Fashions, manner of Living, Language, Writing, with new forms of Fights, Fortifications, Buildings, and generally an innovation in most things but Religion. I make choice of this Paragraph of so Elegant an Author (as Mr. Daniel, who hath deserved very well from the Commonwealth of Learning, for his ingenuous Observations) to examine the particulars of this great mutation, so generally imagined; which enumeration will also afford us the method of our Discourse, concerning that which happened to the English at that time: and first of all, concerning the Alteration of our Laws, which is the principal matter of our enquiry; of which, among many Mr. Camden himself hath thus written; Victor Gulielmus in victoriae quasi Trophaeum, antiquatis pro maximâ parte Anglorum legibus, Normanniae consuetudines induxit, causasque Gallicè disceptari jussit; Yet presently adds, propositis igitur legibus Anglicanis; Merchenlage, Danelage, & Westsaxenlage; quasdam reprobavit, quasdam autem approbans; transmarinas Neustriae leges quae ad Regni pacem tuendam efficacissimae videbantur, adjecit. But to evince this, let us have recourse as near as we can, to the Authors that were of that Age, and seriously weigh what they deliver unto us concerning this matter. Mr. Selden our of the Litchfield Chronicle, cited also by my very much Honoured friend, and incourager, Sir Roger Twysden, introduceth these words: Anno Gulielmus Regni sui Quarto apud Londonias consilio Baronum suorum fecit summoniri per universos Angliae comitatus, omnes nobiles, sapientes, & sua lege eruditos, ut eorum leges & consuetudines audiret. Et licet idem Rex Willielmus leges Northfolktae & Suffolkiae, Grantbrigiae & Deirae (ubi quondam maxima pars Danorum & Norwegiensium inhabitabant) prius magis approbaverat, & eas per totum Regnum observari praeceperat, pro eo quod omnes Antecessores ej●s, & fere omnes Barones Normanniae, Norwegenses extitissent, & quod de Norwegia olim venissent; Sed postea ad preces communitatis Anglorum, Rex adquievit, qui deprecati sunt, quatenus permitteret sibi leges proprias, & consuetudines antiquas habere, in quibus vixerant patres eorum, & ipsi in eyes nati & nutriti sunt, scilicet, leges Sancti Regis Edwardi, & ex illo die magna authoritate veneratae, & per universum Regnum corroboratae & conservatae sunt, praecaeteris Regni legibus, leges Regis Edwardi. Unde per praeceptum Regis Willielmi electi sunt de singulis totius Angliae Comitatibus Duodecim Viri sapientiores, quibus jurejurando injunctum fuit coram Rege Willielmo, ut quoad possent, recto tramite neque ad Dexteram neque ad Sinistram declinantes, legum suarum & consuetu inum sancita patefacerent; nil praetermittentes, nil addentes, nil praevaricando mutantes. Alderedus autem Eboracensis Episcopus, & Hugo Londoniensis Episcopus per praeceptum Regis, scripserunt propriis manibus, omnia quae praedicti jurati dixerunt, etc. Ingulphus Crolandensis also, who was Chaplain to this King William, and being himself somewhat concerned in this affair, and so the more to be believed (as an Agent) writes a little more plainly than the last did, thus; Attuli (saith he) eadem vice mecum Lundoniis in meum Monasterium leges aequissimi Regis Ewardi, quas Dominus meus inclytus Rex Willielmus autenticas esse, & perpetuas per totum Regnum Angliae, inviolabilitérque tenendas sub poenis gravissimis proclamarat, & suis justiciariis commendârat eodem idiomate quo editae sunt, ne per ignorantiam contingat nos vel nostros aliquando, in nostrum grave periculum contraire & offendere ausu temerario Regiam Majestatem, ac in ejus censuras rigidissimas improvidum pedem far, 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 Cousin tint devant lui; which is in English; these are the Laws and Customs which King William granted to all the people of England, after the Conquest of the Land; and are the same which King Edward his Cousin did hold before him: And the like account given by the Litchfield Chronicle, is found in the Laws of King Edward; which, though from him receiving the Denomination, yet probably were Transcripts of a Date (since the Norman Conquest) for that in them is found an express of the Norman Settlement of them: in which is also an account of the difference of the Rate of Mulc●s, betwixt the Saxons and Danes, or Norwegians; and because 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 Execution as the Law of England; Quip cum aliarum legibus Nationum, Brytonum scilicet, Anglorum, Pictorum & Scotorum praeponderassent: he praised and liked of this Danelaege best; (only this observe (if it be worth taking notice of) that not only the British Laws come into the account, but also they are set in the first place.) But King William's desigment had this Effect and Issue, for taking that resolution, it is said: Quo audito, mox universi compatriotae regni qui leges edixerant, tristes effecti, unanimiter deprecati sunt, quatenus permitteret sibi leges proprias & consuetudines antiquas habere in quibus vix runt patres eorum, & ipsi in eyes nati & nutriti sunt, quia durum valde foret sibi suscipere leges ignotas, & judicari de eis quas nesci●bant. Rege vero ad flectendum ingrato existente tandem eum prosecuti sunt deprecantes, 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 Archiepiscopus Cantuariensis & Mauritius Episcopus scripserunt propriis manibus omnia ista praedicta per praeceptum praedicti Regis Wilhelmi. Ex illo igitur Die multa Autoritate veneratae, & per universum regnum corroboratae & observatae sunt prae caeteris patriae legibus leges Edwardi Regis Sancti, etc. Though the King at this time was so unwillingly 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 Denmark, gathered into a body in the North, and were there defeated; whereupon saith Mr. Daniel the most of these Lords presently after came in upon public faith given them, and were conducted to Berkhamsted by the Abbot Frederick, who upon their submission, and oath of Allegiance retaken, had their pardon and restitution 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 ANCIENT LAWS of the Realm, established by his noble predecessors 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, Ex legib. Guil. 1. Hoc quoque Praecipio, ut omnes habeant & teneant legem Regis Edwardi in omnibus rebus, adauctis his quae constituimus ad utilitatem Anglorum. And his Son, Henry the first, took the very same course; for amongst his decrees 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 freedoms, (certainly upon a great mistake, said to be brought in by the Norman Conqueror) concerning which Mr. Campden writing against Polydore Virgil, (who it seems was of that opinion also) hath it thus: Nihil à vero altenius, multis enim ante annis in usu faisse certissimum est; of so general a concernment also was this way of Judgement, Cook l. 2. c. 12. Sect. 234. e. For the institution and right use of this Trial by 12. men, and wherefore other Countries have them not, and this Trial 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 Trial of the fact per duodecim liberos & legales homines is very ancient, for hear what the Law was before the Conquest, Lamb. verbo centuria. In singulis Centuriis comitia sunto, atque liberae conditionis viri duodeni aeta●e superiores una cum praeposito sacra tenentes juranto, etc. Nay, the Trial in some Cases, per medietatem linguae (as we speak) was as ancient, in Lamb. fol. 91.3. viri duodeni jure consulti, Angliae Sex, Walliae totidem, Anglis & Wallis jus dicunto, and of ancient time it was called, Duodecim virale judicium. that in the 31. cap. of the Laws of Hen. 1. it is decreed, Unusquisque per pares suos judicandus est & ejusdem Provinciae. This is the Judgement by our * Judge Dodaridge in his Treatise of Nobility, pag. 110. hath this, Whereas it is contained in the Great Charter 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-customs, or shall be Outlawed or Banished, or in any wise destroyed, nor go upon him but by the Lawful judgement of his Peers, on by the Law of the Land; by which is to be seen that it was the ancient Law of the Land; for Magna Charta was only a Confirmation of those ancient Privileges claimed by the Barons and people from the first Norman Kings. 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 varied into several numbers according to what you shall find cited in several Reigns. They were for many Centuries together (as at this time) at 24. of which 12. to be present; and this in the Saxan Laws hath several appellations: But to ascend with these Juries up to antiquity, we will begin with Hen. 1. and with what he decrees in the 66. Chap. of his Laws. Si quis Dei rectitudines per vim deforciat, emendet LAHSLIHT, cum Dacis, plenam Wytam cum Anglis, vel ita neget, assumat undecim, & idem sit duodecimus, and so presently after concerning Burchot, vel Brigbot, he saith, In Denelaga, sicut stetit antea, vel ita se allegiet, nominentur ei XIIII & adquirat ex eis undecim. In his vero secundum legem nominati, consacramentales vicini babendi sunt, quia solus non potuit, etc. 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 munditiam, quae ante dicetur; so in the Laws of William the Conqueror, at Numb. 16. Siquis alterum appellet de latrocinio, & is sit liber homo, & habeat— testimonium a judge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeomanry or Common people for they be called of the Saxon word Zemen, which doth signify Common, who have some Lands of their own to live upon, for a C●rve of Land or Ploughland, was in ancient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Coke 9 part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, etc. de legalitate, purget se per plenum Sacramentum, & alter qui infamis ante fuerat, per serment nomed, videlicet XIV. a judge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeomanry or Common people for they be called of the Saxon word Zemen, which doth signify Common, who have some Lands of their own to live upon, for a C●rve of Land or Ploughland, was in ancient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Coke 9 part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, etc. homines legales, per non si is habere eos poterit, purget se duodecima manu, etc. so in the next number, against those that break a Church, or, a Dwellinghouse it is said, se purget per XLII. a judge Dodaridge in his Treatise of the Barons, pag. 155 saith, The Yeomanry or Common people for they be called of the Saxon word Zemen, which doth signify Common, who have some Lands of their own to live upon, for a C●rve of Land or Ploughland, was in ancient times of the yearly value of five Nobles, and this was the Living of a Sober man, or Yeoman Coke 9 part. fol. 124. b. But in our Laws they are called Legales homines, a word very familiar in Writs and Inquests, etc. legales homines nomes se duodecima manu, etc. 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 beyond it, lest any should be so inconsiderate as to think these cited Laws were not the Laws of the Saxons before the Conquest; and in the XXXVIII. Law of King Edward we find this; concerning a person accused; Si testarentur hominem, de bona vita, & ² legalitate, purgaret se judicio comitatus, etc. and in the days of King Ethelred, who was much infested with the Danes; he took order for the like sort of Trial; which was then one of the sorts of (and was called also) Purgation; where one that was accused was to take this course; adjunctis sibi Thanis quinque omnem criminis suspitionem diluito; and presently after, in the same manner and almost in the same words it is repeated, ascitis sibi Thanis quinque crimeneluito, etc. In the Laws of King Ina, it is provided, That there should be such a quantity of Land, containing a certain number of Hides, requisite for the judging of some men for mis-demeanour; as in the XLVII. Law. Si cui objiciatur furto surripuisse rem aliquam, vel furtim subductam admisisse, is pro ratione LX. hydarum se culpa liberato, si modo dignus qui juret habetur. Anglus furti postulatus, duplici se purget numero, Wallus majore juratorum numero non obstringatur. Here you see the two last refert to the first; and both to the number of Jurates: which what they were, was to them so well known, that they thought it needless to set it down any otherways than by the number of Hides; 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 Housekeeper) 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 Customs of Arcenefeld in doomsday is to be seen; which I shall for brevity sake omit. Again the very Fabric and make of all our Laws, as now at present, is not at all different from the ancient way of contexture of them among the Saxons; in their * judge D●daridge in his Treatise of Nobility writes pag. 121. of a Treatise which he calls very ancient, denominated, De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi. Mickel-gemote and their Wittangemote, both these together having received the Norman denomination of Parliament; although the thing is one and the same. But that which is of greatest persuasion and force with me, is, that they had in the time of the Norman Conquest, (contrary to the common received opinion) the same way of making Claim for Lands and Titles as before; which the word Calumniare doth signify, and which * Coke upon Lit. lib. 2. cap. 12. Sect. 234. Sr. Edward Coke saith, was a word common to both; if it proves so, then probably used by the Saxons before the Conquest. The controversy between Warren the Norman, and Sherburn of Sherburn in the County of Norfolk (Illustrated by Mr. Campden) shows 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 Arms against him, but was his Subject as well as the other, and held his Lands by that Law that the King had established amongst all his Subjects, The King gave judgement against Warren, and commanded that Sherburn should hold his Lands in Peace. This is cited as almost the only Act of favour the Conqueror did; whereas it is mistaken, for it was an Act of justice; and such Cases do frequently appear in that Record called doomsday, where I find among others, this concerning the Manor of Cerdeford in Hantescire held by Hugo de Port. In isto Manerio tenet Picot 11. Vs. & dimid. de Rege. Phitelet tenuit in alodium de Rege Edwardo pro Mannerio. Istam terram calumniatur Willielmus de Chernet, dicens pertinere ad Mannerium de Cerdisord feudum Hugonis de Port per hereditatem sui Antecessoris; & de hoc suum testimonium adduxit de melioribus & antiquis hominibus totius Comitatus & Hundredi, & Picot contraduxit suum testimonium de villanis & vili plebe, & de prepositis qui volunt defendere per Sacramentum aut per Dei Judicium, quod ille qui tenuit terram liber homo fuit, Ex Domesdei. Hantescira Tran Tainonr. Regis. Alwi filius Torber tenet Rocheborne. Uluiet tenuit de Rege Edw. in Alodium pro manerio, de ista hida, i. virg. quam calumniabatur: dicit Hund. quod T. R. E. quieta & soluta fuit, & inde habet Alwi Sigillum Regis Edw. Ex Domesdei. Hantescire. Tran Tainonr. Regis. Edwinus tenet Acangre, & dicit, quia emit de Rege Willielmo, sed scira nescit hoc, de hoc manerio calumniatur Prepositus Regis dim. hid. ad pasturam Boum Regis. Scira vero testatur, quod non potest habere pasturam nec pasnag. de Silva Regis sicut calumniatur, nisi per Vicecomitem. By this we see they impleaded their rights against the King. Ex eodem. in eadem Scira Tran. Willmi Arcuarii. Isdem tenet Cuntune, quinque Teini tenuerunt de Rege Edw. & quo voluerunt ire potuerant. Aldredus frater Ode calumniatur unam vs. terre de hoc Manerio, & dicit se eam tenuisse die qua Rex Edw. fuit vivus & mortuus: & disaisitus fuit postquam Rex Willmus Mare transiit●; & ipse dirationavit coram Regina. Ind est testis ejus Hugo de Port & homines de toto Hundredo. Here by these you may gather several manners, and several reasons, and grounds of claims then. & potuit ire cum terra sua quo voluit. Sed Testes Willielmi nolunt accipere legem nisi Regis Edwardi, usque dum definiatur per Regem, etc. Hugo de Port having the Manor of Cerdiford from his Ancestors; William de Chernet makes claim in his behalf against Picot who held some part of it, and makes proof of it by the testimony of the chiefest and best of the Country, and also of the most ancient of all that Hundred. Picot defendant, produceth the testimony of the villagers, and men of no account, and Reeves or Bailiffs, who offer their oaths, or the ordinary ways 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 Manor, nor of the customs thereof, might dispose of his Land as to him seemed best; but the witnesses of de Chernet would not accept of the Trial by any Law, but that of King Edward, till such time as the King had judged it; this you must understand was about the eighteenth year of the King, the English still insisting upon the Laws of King Edward; which in case they had been repealed, it had been a great vanity to have insisted upon them; observe further, that Picot entitles the King to it, though the proof was the 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 days, and what course was taken for claims thereupon, I will exhibit another out of the same doomsday in the same County, where under the Title of Terra Tainorum Regis it is Recorded that Alwi filius Turber tenet de Rege Tederlec, tres liberi homines tenuerunt in Alodium de Rege Edwardo. Dicunt homines de Hundredo, quod nunquam viderunt sigillum vel legatum Regis qui saississet Alwinum antecessorem ejus, qui modo tenet de isto Manerio, & nisi Rex testificetur, nichil habet ibi: duo ex his qui tenuerunt occisi fuerant in Bello de Hastings. The inquiry then made, for to cause the forfeiture, was this; whether the Land did belong to any one that was in the battle of Hastings, and there did take part with Harold, against King William; which is the same that Sherborn pleaded for himself against the King's gift of his Land to Warren, that he did never bear Arms against the King. But in Berrocshire in the same Record under the Title of Terra Regis it is, that: Pandeborne jacuit in firma T.R.E. & post tenuit Aluuoldus Camerarius; sed Hundr. nescit quomodo habuit. Frogerius postea misit in firma Regis absque placito & lege; by which we may gather, that notwithstanding the entituling the King to the Land, yet the Candour and Integrity of the Surveyors at that time was such, that they return it to be put under the King's Rent absque placito & lege, without either hearing or Law; that is unjustly; for placita & leges at that time were as much observed to evince the right of possession as possibly could be expected. But to come to that common objection, that our Laws are delivered to us in the French-tongue, I shall not take much pains to confute it; for that it is evident, our ancient Laws, I mean the Common Laws of the Land, are neither written or Printed either in French, English, or Latin, 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 ancient judges of the Law) not committed to Parchment or Paper, and may (for aught I can perceive) have that manner and Custom continued and retained from the Ages of the Druids. Certain reports upon Cases of Law by several excellent Lawyers in our law French are rendered 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 publicly preside, heard Causes and gave Judgement, that therefore those Cases and Plead in French were preserved; which Cases gave only the reason of the Justice of the Law as to the diversity of concernments of the Subject; and upon this it is, that Mr. Campden giving the reason that one of our Courts is called the Kings-bench (Bancus Regius) sic dictus (saith he) quoth in eo Reges ipsi praesidere soliti, etc. 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 plead in French, which otherwise could not have been understood by those first Norman Kings that did not understand English; they addicting themselves in Letters, in Discourses, in Messages and in all things to the French Tongue. I proceed now to the second particular which is looked upon to receive so great an alteration, and that is our ancient Customs; though much upon this point comprehensively in the former discourse of our Laws hath been said; where the Custom was anciently to claim Lands by the Country; it continued so at this time of the Conquest, as we see in many places of Domesdey-book, where it is said: Scira dicit, Comitatus dicit, Hundred: dicit, etc. as in the Saxon Laws all was brought to the Hundreds and Shires, so in the 34. Law of King Edward there it is of a ðrihinga, which is the circuits of three or four Hundreds in a County, et quod autem in ðrihinge definirinon poterat, ferebatur in Scyram, what could not be judged in the Hundred, was brought to the Shire, where at a certain place were kept the Pleas of the County, and where were to be present, (take them as I find them recorded) Episcopi, Comites, Vicedomini, Vicarii, Centenarii, Aldermanni, Praefecti, Praepositi, Barones, Vavasores, Tungrevii et caeteri terrarum Domini, diligenter intendentes, etc. So in the Laws of King Edgar, every year let there be said he tƿa scirgemot; & ðaer beo on ðaer sciregemote bisceoƿ, & see ealdorman. & þaer aegþer taecan ge Gods 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 World's 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 happened at this time, that in this often cited Survey Record there among many other of the like nature is this concern of the Burrow of Wallingford in Berrochescire which concludes thus. Modo sunt in ipso Burgo consuetudines omnes ut ante fuerant; and so where it Records the Customs of Urchenfield, it saith: Hae consuetudines erant Wallensium T.R.E. id est Tempore Regis Edwardi; for the men of Urchenfield in ancient Records are called Welsh; as this Region is called Wales; for in the book of Knights-fees in the Exchequer it is written, Arcenefeld in Wales respondere tenetur Daō Regi, etc. Should I make a parallel of Customs as well as Laws used 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 peep in the Saxon Laws is rendered aestimatio capitis, and those provided, that in case upon an offence it could not be paid neither by the Criminal nor his Kindred; then was he to undergo a service for it; somewhat of this nature was in the Norman times, for among the Customs of LEWES in Domesdey-book, I find that, Adulterium vel raptum faciens, viij. Solid. & iv. Den. emendat homo, & faemina tantundem. Rex habet hominem Adulterum; Archiepiscopus faeminam. This is there set down as an ancient Custom 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, habeat Rex ejus vel Dominus (I believe ejus should be set after Dominus) superiorem, Episcopus inferiorem; 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 Customs in the Norman Government which they had in the time of Edward the Confessor: I know there be many jocular tenors: but whether all of them that occur were invented or imposed by the Normans, it matters not much, because they did not interfere upon propriety, nor injure their other Customs. One Custom reported to be brought in, was the * judge Dodaridge in his Treatise of the Law of the Nobility and Peerage of England, in his 16 page, shows 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 john Cardinal, and Archbishop of Canterbury, etc. W. Archbishop of York, etc. 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 Saxon 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 Confessor 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 memorandum 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 Abendoniensis; it is specified, that, Anscil tenet Sperfold de Abbate. Edric Tenuit in Alodio de Rege Edwardo & potuit ire quo voluit, etc. 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 viveret necessaria vitae inde donaret: post mortem vero ejus; Manerium haberet; & ideo nesciunt homines de Scira quod Abbatie pertineat; neque enim inde viderunt brevem Regis vel Sigillum. Abbas vero testatur quod in T. R. E. misit ille Manerium ad Ecclesiam unde erat & inde habet Brevem & Sigillum Regis Edwardi attestantibus omnibus Monachis suis; and in that County under the Title of Terra Henrici de Ferieres, is, that Ollavintone: Godricus Vicecomes tenuit de Rege Edwardo; Hanc Terram dedit Rex Edwardus de sua firma Godrico; & inde viderunt sigillum ejus homines de Comitatu; praeter istas hidas accepit ipse Godricus de firma Regis unam v. terre, de qua non viderunt 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 days) was an Introduction of the Norman Conqueror; and in that there was much Reason and Policy; for no doubt but that in some places and Countries, the Norman Soldiers were enforced to lodge dispersedly, and so it would be fit and convenient that the Country should observe, that timely Decorum and Order, not only beneficial to themselves, but also to those enquartered, whose Guards would be the more difintangled, the more they had of freedom from the company and walks of the Country 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 Drum. What the inducement 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 St. 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 Tragedy. Another innovation received at this time according 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 Frenchmens Apes; but yet I know not whether a serious observer can find by any probable Record, or by the observation of ancient 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 happened 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 ancient 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 itself, from its self, without any such violent Impression, as this Conquest may seem to enforce: And I would desire of any one that hath observed the Gradual decay of our Primitive English; or Saxon, what remarkable difference in any thing considerable there is to be found, betwixt that of Edward the Confessour's time, and that in which Chaucer wroten 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 Foreign commerce, and the usual residence of the English Court for many hundred years) for it is plain to me, that the present Scotish hath very little receded or altered from the English or Saxon anciently used; and by comparing of the Writers of several Centuries together, the refining of the English tongue hath not been considerable from Age to Age, till within these last Hundred years: so that at this instant, I cannot perceive into what habit of the French tongue it is altered; nevertheless I am not ignorant, how that in those first Norman times, there wanted not those of the English, who by their Adulation and Sycophantizing, earnestly laboured to get themselves into some repute; of whom that Age took so great notice, that in great scorn they reproved and reflected upon them, by that common Ironical proverb; Jack would be a Gentleman, could he but speak French; and as for the Characters said to be changed, I have seen Charters of Saxon firmed both by William the Conqueror, and after his Reign by his Son Henry, surnamed Beauclerk, all wrote in the Saxon Letter; that Character being yet retained in all such Escripts that concern our Laws, and is called by the Denomination of Court-hand: And again, in some very ancient Transcripts and Sermons of Saxon, written before the Conquest in their own Characters; the Latin therein cited did relinquish the Saxon Letters, and did espouse the old Roman Characters: I urge this the rather, to show that these alterations are not properly to be fixed, as an effect of the Norman Conquest; and that Writers running much upon Hyperbolical expressions, have laid more upon this revolution than it was truly Guilty of. To what Mr. Daniel writes, that by this Conquest we received new forms of Fights, Fortifications, Buildings; and concludes, generally an Innovation in most things but Religion: for this last particle that is of so great extent, I have said enough already to show my diffent, to his opinion; and it being so large in the affirmative, I dare not enter into the discourse of it, for dolus latet in universalibus, and it would take up too much time; but to return to these three first particulars now ennumerated, I say, that probably in them there might be some alteration; for I would not be thought so opiniative, to believe the English were so tenacious of their own Forms and Modes, as not to relinquish them for better, they took up afterwards new forms of Fight, and came not short of the Normans, either in Valour or Renown in the use thereof; but to the difference betwixt the forms used by the Normans and Saxons, I leave the Reader to the Description of that most remarkable Battle betwixt William the Conqueror, 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 practic part of Arms came to be not only famous, but also terrible to their Neighbours, by their Dexterity and Valour. Neither will I dispute their Fortifications, yet the Romans left the Britain's excellent Notions thereof; which afterwards came into the possession of the English, and were not at all short of any the Normans could pretend to be Authors of, considering the Discipline and Arms of ancient times: yet true it is, that the English at this time were by case and softness almost reduced to that Effeminateness, (notwithstanding their Danish turmoils) that like as the Britain's made use of them and their Ancestors against the Picts; so now these Saxons make use of the Normans against the Britain's, for the preservation of their Welsh Borders; of whom a considerable party lay in Garrison in Hereford, and were, after William the Conqueror had been here above a year, hard put to it, under the Government of Scrâp, as he is named in Domesdey, by Edricus Silvaticus, (or Savage) Lord of Wigmore; who at last was taken by Radulfe de Mortuomari, his Lands being by the King for this great Service bestowed upon the said Radulfe; these Normans which I suppose were introduced by Edward the Confessor, the Conqueror took care of in a Provisional Law, which carries this Title before it: De jure Normannorum, qui ante adventum Guilielmi, Cives fuerant Anglicani; where in the Body thereof it is, that Omnis Francigena qui tempore Edwardi propinqui nostri fuit in Anglia particeps consuetudinum Anglorum, quod ipsi dicunt Anhlote & Anscote, (i.e. Scot and Lot as we call it) persolvat: secundùm legem Anglorum; but this was not altogether so strange, if we consider the Warlike disposition of the Normans in that Age, in continual Turmoils with the French, and the relation King Edward had to Normandy. Their Fortifications were not of any great Variety; Judge Dodaridge in his Treatise of Nobllity, p. 118. Writing of Knights their disposing of their Estates in those Elder times, saith, For they did thus order their own Lands and Tenements, one part they kept in their own hands, and in them stately Houses and Castles were erected, and made for their Habitation, and defence of their Persons and the Realm; also Forests and Parks were made there, for the Pleasures, Solace and Delight. some were of a round Building of Stone, for the most part Built upon a round pile of Earth, either Natural, but most commonly Cast up by man's Industry; others upon a small rising, or a plain Ground, seldom 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 Ancient 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 anciently Build were round, and these for the most part square, with one round Tower at one of the Angles, both sorts of which were anciently called Fortalices, and seldom made use of for Habitation; because I find their mean dwelling Houses were made commonly under it, or very near adjoining to it: And I discern a difference made betwixt those for Habitation, and those I spoke of that were only for a Safeguard against sudden Inroads and Incursions; for in Domesdey Book, in the Survey of Erdisley in Herefordshire, it is there recorded, that, ibi est domus defensabilis, that is to say, there is a dwelling House fortified, (which is now called the Castle of Erdisley) and was builded because of its Vicinity to the Welsh Borders, and was intended by that Denomination to signify 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 advantageous, or at least an honourable change, by the difference that was in the Mode of them: I must confess the Norman manner was very noble and magnificent, which by their Churches may be observed; for the Saxons made theirs with Descents into them, the Normans with Ascents; the first made their Lights small and mean, the second made them high and large; these made their Arches stately with heights proportionable, the others had their Arches and Cover low, and made their Walls of so great a thickness, that they were a great Damage 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 ancient form of the Saxons before mentioned, I have observed several Churches and pieces of other Architecture; their entrances (especially in their West-ends) by Descents inwardly, with Arches form to correspond with those gradual Declensions and Steps, all which shortening towards the greatest Door at the bottom of the Stairs; over which for the most part was a finishing of a Semicircular piece of Gothick work, and together made a kind of an artificial Perspective. I have hitherto endeavoured in this tract to make it appear, that for the space of 1700. years past, we received no considerable Mutations or Alterations in our Laws and Customs. That this our Tenure, the subject of our present Discourse, hath had the fortune to continue here, from our British aborigines, (the first Planters of our Isle) through those several changes and revolutions of Affairs and Governments that have happened 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 persuaded I have not miss the way, but kept and preserved the Goal in my eye. Those alterations that are now found as to the general usage of this Tenure, (which was the Supereminent custom of this Nation) proceed not at all from any Enforcement or Coercion by reason of any of these forementioned Intrusions or Conquests, but clearly by the consent and desire of the Proprietors and Persons therein concerned: for in the County of Kent, where Mr. S. saith, this Tenure did generally overspread; there (I say) in the time of Hen. 8. several Lordships were discharged of this Tenure by Act of Parliament. I have not all this while pleaded for the settlement or goodness of the Tenure, to be used in this Age, where Lands are well Peopled and fully Inhabited, for it would be the destruction both of Lands and Lineage; but my business hath been to inquire into the state of the question, the true Original, Etymology, and Use thereof. The people of England by degrees have inextricated themselves from much servitude in their Customs, and are now instated into a great privilege of Liberty, and more particularly from those heavy pressures of Villeinage; the Slavery of which Custom hath received its Death's 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, (joined 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 inquire, though it seems to return far back, whether we have any ground to believe, that the CHAP. V. Trojan Britain's used the Tenure of Partition. I Can not pass by without taking notice of a Marginal question that Mr. S. makes in pag. 54. and it is this; By the way, (saith he) how do our Britain's claim descent from the Trojans? Sith with them the eldest Son, by Prerogative of primogeniture Monopolised the whole Inheritance. I know not what Author's Mr. S. hath met with, that he affirms so positively, with our Britain's the eldest Son did Monopolise 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 myself 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 persuaded, it must have reference to the Britain's, and that to them it is that he saith, Sith with them the eldest Son Monopolizeth, etc. and notwithstanding I have some inducements to believe, that Mr. S. asketh the question (how our Britain's claim Descent from the Trojans?) in Merriment and Jest: yet in their defence to that very question, there may so much be said, which will carry a greater probability, than any one that rejects it, is able to produce of another original. I told you before what King Edward the Confessor 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 Troynovant, founded and built in the memory of the other old Troy: which in case it should prove to be so called, what reasons had the first Founders to make it ad modum and in Memoriam thereof, unless they had been related thereunto? I am not ignorant 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 Distaste of Polydore Virgil, and followed by very many; imputing it to be the Fiction of Galfridus Monumethensis, who was the Translator only of a History out of such a Language as Polydore did not understand, notwithstanding his being a Canon of Hereford, 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 laboured 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 seized the most Ancient thereof (that were in being) 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 * Bishop of Hereford. St. Thomas de Cantilupe, I found three leaves cut out; which by a constant and confident Tradition of the Registers of the Diocese of Hereford, in whose Custody that Book was, it is averred that this was done by Polydore: But as soon as his History was made public, he was encountered by Sir John Price in his Book entitled, Defensio Historiae Brytannicae contra Polydorem Virgilium; unto his labours I shall refer the Desirous Reader: but among other things well worth the View, he shows the probability of the first British Planters here; their Extraction and Derivation from the Grecians, backed with many considerable Arguments and unvulgar Observations upon Antiquity, taken from their Language, Letters, Names, etc. But here we may observe, that the Conjecture of Trojanism was far more ancient 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 Confessor, concerning the exemplar of the Foundation of the City of London; but also long before this, from an Expression of * M.S. pe●es Authorem & citat. à Joanne Prisaeo in Defension sua Histor. Brit. etc. Of whom Balaeus among his ancient Writers saith, Teliesin, Claruit Anno salutis humanae 540. Arthur● adhuc in Brytannia regnante. Mr. Wheelock out of an ancient M.S. in Trinity Coll. Camb. in his Comments upon ●ede citys this of Him come þe good Bruigt ƿat ƿas þe first man Ðat loverd ƿar in Engelond; 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. (quemadmodum in Gesnerianae bibliothecae Simleriana legitur Epitome, sed Pitseus ait, poëm●t id libris IX. constare) ludebat, Archithrenium autem appellavit, etc.— atqui hinc ipse etiam Archithreni●● nominatus. Eum laudat Petrarcha, Giraldus, Vives, Vossius, Textor, Balaeus & Textor. Ambrose Telesinus, a Monk of Bangor, who lived in the first Age of the Saxons enterprise 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 Countrymen the Britain's, in the midst of such Disasters, expresseth himself thus: Now will I return (y Weddilion Trojon) to the relics of Troy, plainly by the ensuing Discourse intending the Britain's, whom he supposed to be the offspring of the preserved remainder after the Siege of Troy; and those that have endeavoured the reducement of British Words and Denominations to an Original from the Greek, have done it with good success, and without any such force as many Etymologists of other Languages have laboured under; and perhaps the Ancient 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, Tingitania, etc. which is taken to signify Regio, a Region. But to Mr. S' question, strengthened with this position, viz. That with them the eldest Son by prerogative of Primogeniture Monopolised the whole Inheritance, I answer, that if our Britain's 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 dispose, Divided it amongst them; from whose names (it is affirmed by those that writ this Story) that the triplicity division of Cambria, Loegria, and Albania, first took their Original; and it is observable, that the Britain's, the ancient Proprietors and Inhabiters of this Land, know not themselves under the Denomination of Welsh; * North-Gales. Wales. Wallia cometh of the Saxon word Wealk, which signifieth Peregrinus or Exterus, for the Saxoas so called them; because in troth they were Strangers to them; being the remain of the old and ancient Britain's, a wise and warlike Nation, inhabiting 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 Englishmen, Saisons, (that is) Saxons. Coke upon Littleton. that Word being as much a Stranger to them, as in its own Natural signification it is unto itself; for by it do the Dutch call the Bordering French and Italians unto this day; and is that Appellation which the Saxons imposed on the Britain's, who (like unmannerly Guests) called their Landlords or Hosts (the true Proprietors) even (as I may say) in their own Houses, the Strangers. But the Britain's did anciently, and still do call themselves Cwmri, their Language, Cwmraeg, and this fancied to be from Camber; the same Britain's 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 Englishmen; these Twmri also, call the Speech generally spoken in England, Saisnaeg, (that is to say) the Saxon tongue. Somewhat doubtlessly there is of extraordinary reason, in these names of distinction and difference of Cambria, Loigria, and Albania, in case we could recover it: but I am afraid the truth in this point is lost, for the Denomination of places from the names of men, as it is an old and fond conceit, so I think it an ill one; * As itis remarked by Sir J. B. and may be worth the Enquiry. and for my part, I had rather believe that Brytannia is derived from the Greek word, BRYTON, which signifies Vinum Hordeaceum, (that British Ale, a Drink, how Con-natural and anciently peculiar to the Inhabitants of this Island, will be now needless to Discourse) than that London is the refined Issue of Ludstown, or England of Hengists-land, or Scotland, from one Captain Scoto: But this ancient triplicity division, whether the effect of Brutus' 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' Jocular question, since his question is a question taken for granted. Neither will I aver or much insist upon that action of Constantine the Great, who being's Brytain, and so probably experienced in the British Customs; that he, upon this ground or custom of partition used among the Britain's his Countrymen, did Divide the then entire Roman Empire between his two Sons; by him (I say) this division and partition was made, be the reasons or grounds of it what they will; and upon this Division were differenced and distinguished by the Appellations of the Eastern and Western Empires, which afterwards again returning into a single Person, came to Theodosius, (whom * Procop. Belgiosa Vandalic. l. 1. c. 1. Procopius calls a most just Prince, and a great Soldier) he had two Sons, who after his Death succeeded in the Empire, Arcadius the Elder in the Eastern, and Honorius in the Western Empires; which is said to have been done, according to the former division, viz. That which the Emperor Constantine had made; so that the use or custom of partition in Empire as well as in private men's Lands is of great Antiquity. I proceed now to show that there is CHAP. VI Gavelkind in other places of the Kingdom of England besides Kent: in the Principality of Wales. Gavel used in denominations of places; how used among the Welsh; of the word lan: of the Normans invasion of the Territory of Wales: the use of Gavell in the division of that Territory; and exposition thereof in the Welsh Vocabulary. Mr. S. is much given to think that this Tenure of Gavelkind, is a singular appurtenance to the County of Kent. For in the first page of his book as the Theme of his discourse, he lays down this position: that Gavelkind is a property of that eminent singularity in the Kentishmen possessions; so generally in a manner from great antiquity overspreading that County, as England this day cannot show her fellow in that particular; and in his 54th. page, For other countrymen's communicating with us of Kent in the Tenure, I conceive (saith he) it first came up by imitation of our example; in Ireland especially, and amongst the Welsh-men, in whose Vocabulary or Dictionary the word is sought in vain, as it is also in that old statute which concerns them, viz. Statutum Walliae: To evince this, besides the knowledge of several other places in England, that have this Tenure eminently unto this day; somewhat that Mr. S. himself doth confess in his Tract will help to clear the contrary; as in particular where he testifies pag. 48. that Socage Land in general, and by the nature of it, is capable of partition, and by Custom may be, and in many places extra Cantium, is partible. Now so it is, that there is no County in England but have Lands held in Socage Tenure, and upon that reason are capable of partition; but more especially in Wales, where the word is in use among them, and more to a just and proper signification, than in any other place, or by any other Language, as I shall show anon. But Mr. S. from its very denomination, (under the notion of it I mean) would persuade us to a belief of its singularity in Kent; which I cannot admit: for notwithstanding he hath not found any Lands in any other place to pass under that denomination; because (saith he) the Land in any deeds or conveyances hath not any appellations of Gavelkind; yet I say, use and custom 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 controversy, only to be found among the Welsh, (the ancient Proprietors of this Land) from whose Language I shall make it my design to derive its Origine; and shall begin with this part first, because very much of certainty in antiquity, is to be drawn from the retained names of place; which if seriously remarked will afford us a great light to History. There is a Village or Parish in Monmuthshire that adjoins to the Territory of Urchinfield in the County of Hereford, called to this day Llangattok feibon afel, which if any one attempts to read to a Welshman, let him be sure to pronounce the single f like a V consonant, and then to be read by this power, Chlangattok vybon avel; but the common denomination thereof without the variation, proper to the Welsh Tongue, is, Llangattok gafael meibon. lan, or, (as it is rendered by our English writers, to express the idiomatism of the British) Lhan and Chlan, signifies a Religious dedication, or locus sacer, and Doctor Davies in his Cambro-british Dictionary upon the same word, saith, that, vulgò sumitur pro fano, templo, sed potius existimo (he addeth) significare coemeterium vel aream Templi. Let it be either Church or Church-yard, it doth intimate a Religious dedication, and notwithstanding there are at this day many places that have the praefix of lan unto them, where no Church is to be found, yet if searched into and traced to their foundation, will discover some such appropriation and intendment. So I find in the forem ntioned Region of Urchenfield a certain Parish called Hen-Ilan, (commonly Hentland) which in the English Tongue signifies, the Old-Church; and in certain Pastures 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 ruins of which place, with its old Foundations are yet to be seen, and was a place dedicated to Holy use, for there it was, that the great College for one Thousand students, was founded by St Dubricius the Prince of this Region; to repel the Progress of the Pelagian Heresy; who succeeded his Grandfather Pibanus King of Ergin (the old name of Urchenfield) and in the days of King Arthur, was made Archbishop of Caerleon. But I am gone too far, my intentional digression was only to show that lan was not solely appropriated to Churches, but anciently 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 infers no more than Ecclesia Sancti Cadoci; which strange Saints name may cause some to wonder, as not finding it in their Calendars; but they must understand, that the Britain's had amongst themselves, a great number of Saints, who were not canonised by the Authority of the Pope, but by themselves; and this by a long continued Custom; which privilege was so familiar among them, that by that Authority and Custom, almost every Bishop made his Predecessor a Saint; but these denominations of dedication, compounded with some remarkable distinction, do frequently occur among the Welsh, as Llanihangle-Arrow, Llanihangle-Eskle, which are so called by them unto this day; and by them when they speak English, (as well as by the English themselves thereabouts inhabiting) are called Michael-Church-Arrow, and Michael-Church-Eskle, from the two Rivers upon which they are situated, and afford the true interpretation of their names; their suffixes being (as I said) to difference them from others of the same Title in the beginning; in like manner is it with this Llangattok, who for difference sake from several others of the same dedication in that Country, is called Gavell-Meibon, or Feibon-afel; but not as it is most corruptly in several Maps of that Country written; so, that the Welsh could as little be able to retrieve the mistaken writing of that word, as the English could understand the Orthography thereof. It being Printed Llangattok-vinonavel in most of the Maps of the Country, and lies not far from Herefordshire. But the British Norma loquendi gives these several sounds, as by the familiar transmigration of M into F, which last must be sounded like an V consonant in the English, or like a Beta or Vita in the Greek; and such is their manner, that they make these changes, whensoever it happens that certain Consonants end the foregoing words; as Mab (filius, a Son) transmigrates into Fab Meibon. (filti, Sons,) into Feibon; so also upon such accidents by virtue of their idiomatism they leave out the Letter G, as it hath fallen out in these two words. But what am I run into? I am got out of History into Grammar! I shall only to put it out of doubt inform you, that Feibon afael, is the one and the same with gafael meibon, which together with its dedication Llangattok-feibonafael signifies Ecclesia Sancti Cadoci de tenura puerorum, (the Tenure of the Children.) It will fall out conveniently now to speak to what Mr. S. faith, of the Welsh concerning the word; that in their Vocabulary or Dictionary it is sought in vain. The word Gafael (or as by our English pronunciation it receives force and power in the imitation of sounds is, Gavel) cometh from the British verb Gafaelu, which as Doctor Davies in his Dictionary renders it, is, Tenere, Praehendere; and in the most ordinary discourse the Welsh to this day have the use of the word, expressing themselves thus, or in the like manner, * Judge Dodaridge in his Treatise of the Nobility saith, page 53. o●t of Tho. Thomas Aquinas 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 taken, sensu currenti, for Use and Custom is the best Exposition of Laws and words, quem penes arbitrium et ●●s & norma loquendi; where propriety and true sound in words meet, this Rule or discourse cannot reach; for, nomina-sunt omina. Cymmeroch chwi gafel, which is in English to say, Take hold. I have wrote it in that manner for the easier reading of it upon the force of the Letters; but it should have been thus written, Cymeroch the chwi gafael. In the same sort they retain the ancient denomination of an Officer, which they call gafael-swyddog, and was an Officer for Arrest, being derived from this Gafael, which is no more, than the Officer his holding, or laying hold of a person; (Swyddog is an Officer; but most commonly it is taken for a Magistrate as in the Laws of Howel dda.) Lastly, Forceps, a pair of fire-tongs, is nominated in the Welsh, Gefael, derived still from the verb Gafaelu to hold, and is a denomination from the use; always provided (as before I have said) you rem mber the pronunciation of the single F. But to pass by this, which proves the word sufficiently in use and knowledge among the Welsh, and to be found in the Welsh Vocabulary, I come now to an objection which may be made concerning the denomination of this Parish; which some may fancy to have been a late Act, and that the additional cognomen of it, might be caused by, and be the proceed of, some special remark of this Tenure. To which I reply, passing by what before seems most probable, that all Lands among the Britain's were partible; yet there may be somewhat in the distinguishing name of this Village, for when most of this Country was wrested from the Welsh by the Normans; (for till then, the Welsh did enjoy it) this Village by the favour of the possessing Conqueror, may probably retain this Custom, and accordingly have its appellation; for we must understand that King William the first not being able to satisfy the expectations of all his Assistants, with the forfeited Lands of the English; gave leave to several persons to get what they could of the Welsh; and it was not till his Sons days, William the second, that Glamorgan-shire was attempted; these persons having at that time liberty of constituting Regalities, and jurisdictions; as I have seen by a Charter to Brechnoc, from Bernard Newmarch (or de Novomercatu:) and as Cheshire so was Gladmorganshire erected into a Palatinate. But there is no reason to believe the additional name of this village was of so novel an imposition, as to carry no greater antiquity than the Norman Conquest; for in case it were so, it was not probable the Britain's would give an appellation to it by a name whereof they knew not the meaning, and crowd this Saxon word (as Mr. S. would have it) in the midst of Welsh; so that it carries argument along with it, that the word is rather of a Welsh parentage, and that there is no other conceit in the name, but what refers to the Tenure of Partition. The Britain's 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 Arms after many various successes on both parts, and stout defence made by the Welsh for their Lands and proprieties; enjoying it partly by force, and partly by composition and agreement; as the private family Histories do manifest which I have seen: for there are several Family●s of the greatest note in that Country, that are able to produce testimonies of enjoying their Lands and Birth in that circuit of Land (for shires and Countries are not of a Welsh institution) before the Norman Conquest; so that by this it is probable they did not subvert all, neither were they in quire about Abergavenny after the Reign of Henry Fitz Empress, Gyraldus Cambrensis relates a series of their Actions in those parts. But to leave these stories, I think it least of all probable, that the Normans would borrow a kentish word, to denominate any thing to their British Tenants, or plant it there as a Kentish Custom; seeing in case the derivation according to Mr S's opinion, should prove true; this denomination was as much unknown to the Normans themselves, as possibly it could be unto the Britain's; and alike to both of them; if the Normans had found a necessity of making an intelligible expression and appellation of such a Custom of Partition, certainly I should have met amongst them with the Roturier; which I understand is in use over all France at this day; and very frequently in Normandy; the Island of Jersey parcel of the Norman Dukedom retaining still this Custom to this day under the name of the Roturier, whilst her Sister Guernesey hath no footsteps of it; but are as different in their Tenors as in the nature of their Soil; 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 distasteful abundance. But even now I touched upon the Saxon division of Shires and Counties, and told you it was not the British Policy; which puts me in mind of that Order that was observed by the Welsh, and rectified by Howel-dda in the ordering of his Principality; with the careful intermixture of civil-descents and military disposition; wherein we shall find something to our matter in hand worthy the notice; the description as Humfride Lloyd hath written out of the Laws and Ordinances of that Prince, is in short thus; First a Cantref, which had its Denomination from one hundred Towns (and signifies as much) under which was so many Commots, which the Welsh call Cwmmwd, and signifies Provincia, Regio, Cohabitancia, and consisted of twelve Manors or Circuits, and two Townships; there were four Townships to every Circuit or Manor, and every Township comprehended four Gavels, every Gavel had four Rhandirs, and four Tenements were constituted under every Rhandir. Of Gavel, I have told you before that it signifies Tenura (a Tenure) Rhandir is a word that admits not of any proper Sign ficancy in our English speech, but is by Doctor Davies rendered 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 liable to this Partition: so that we find in every Township four Gavels, which were four great Holds or Tenors; out of which I cannot find the Prince had any Rent, for that the Gentry held their Lands very free from any base service, only subjected to their Military policy and provision; the Prince his own maintenance, (that so he might be obliged to a respect and care of every particular in his Principality) was set out in every Cwmmwd or Commot, which (as I said before) consisted of twelve Manors or Circuits, and two Townships, which two Townships were belonging to the Prince, through out each Commot in the Principality of Wales; for in the person of this Howel the Territories of North-wales and South-wales were united, as himself in the * M S. Penes Authorens. Prooemium of his Laws doth declare. This Gavel in the description aforesaid, seems to be a large apportionment of Land belonging to a * Which by the Irish are called Canfimiys, and are the chief of their Gavels or Rhin-taloon. See Davies his Irish reports. Pen-cennedl, or chief of a Family or Clan, and doth per eminentiam signify 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, sorts or parts Hereditariae, ready divided and apportioned for his Cennedl or Generation; and not only so, but also a sub-division of many Tenements under the Rhandirs: shows perfectly a Gavel, Tenure or Hold, exactly observed even in their general partition of Lands: and this so ancient (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, Tota parts Hereditariae in Tenura; that is, each Gavel or Tenure did consist of so many Rhandirs, or Hereditary divisions ready parted; each of these Tenors being supposed to be so ordered, as to admit of a Division, and if need were of Sub-divisions also; that so a Township might the more aptly be constituted for the execution of this common Tenure; and these so holding in, or rather by their Gafael, were not only the ancient Villati or Villani among the Britain's, 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 showed, and that also Extra Cantium, to which County Mr. S. doth labour to Monopolise it, and the use thereof for several hundreds of year past, even at such a time, when the Correspondency (in probability) betwixt the Britain's 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 War, it was not probable they would have accepted of any Saxon Customs, by a name so insignificant to the thing, (as anciently the Etymology of it was received) or so little to the matter, (as Mr. S' novel Exposition would render it) or to the rational use thereof. But I have already shown in the foregoing Discourse, in what sense the Britain's have received it, and also what Doctor Davies in his Cambro-British Dictionary, (which in my judgement is an Elaborate and Critical piece) hath said and exemplified thereupon; for he it is, that not only affirms Gafaelu (by English Letters pronounced Gavaily) to signify Tenere, to hold, as before I have said; But also Gafael (by English Letters spoken Gavel, the word in Controversy) to be Tenura, a hold. But for the Statutum Walliae which 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 without any great trouble (all things considered) might argue it to be a British custom, yet confesses that the Parliament in the Statute of 34 Hen. 8. can. 26. did make use of the word Gavelkind. But how? (saith he questioning, and then resolving it) only as b●rrowed, to help to Describe and Illustrate 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 pardon) 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 ancient Customs of the Kingdom of Ireland, I am informed by the Irish, that their Rhein-ta-loon, which is their parting of Land; is generally among the Commonalty, 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 show 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. I have little to say, except it be, that when King John overthrew the Brehon Law, Anno Regni sui 12. and then settled the English Laws; that this Tenure of partition might probably receive a great abatement of its common usage and force among them, who it seems have the footsteps and remainders thereof very Visible unto these our days. But in this I shall desire to be excused, as not having informed myself sufficiently, so as to make a satisfactory Discourse thereof; confessing myself much ignorant in that History, and shall proceed in the Discourse CHAP. VII. Of soveral Customs of Descent of Lands; of the welsh Laws of Partition; of Knights-s●rvice and wardship 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 clothed with the apparel of Gavelkind, and under it in a large acception, is understood all such Land within the County, as is not Knights-fee or Knights-service-Land; the term serving here to Contra-distinguish it from Knights-service-Land. But let a man go into Urchinfield in the County of Hereford, and inquire of an Inhabitant thereof, in what manner Lands there are held? he will readily and speedily resolve him, that they are subject to Gavelkind; and as fully inform you of the nature of that their Tenure, viz. that by it, their Lands are all partible among the Males; (and in defect of them, among the Females, as other. Lands of Inheritance are throughout England.) I have met with another kind and fort of Partition, which I dare venture to call Gavelkind, and is very unusual; because by the Custom of the place, both Males and Females have a right equally in the Partition. I think it may not prove displeasing to insert the Record, as it was shown to me by my Industrious friend Mr. Falconbridge, to whom, for this and many others favours, I must acknowledge myself with much-gratefulness Indebted, and thus it is in the Office of the Chamberlains of the Exchequer of Receipt; being the like as I find it in Flanders, and the same with that in Ireland. Dorset. Placita de jurat is & Assiss. Anno 16. Edw. 1. Metingh. Edwardus Kaynel. Maria filia Roberti de Camma. The Irish have the same manner of Partition. Davies-Irish reports. Jobannes Bereset, & Matill. uxor ejus, & Johanna soror ejusdem Matill. petunt versus Johannem Alfrith de Warham unum Toftum cum pertinentiis in Warham: de quo Johannes Gerard. consanguineus predictorum Edwardi, Mariae, Matill. & Johannae cujus heredes ipsi sunt, fuit seisitus in Dominico suo ut de feodo die quo obiit, etc. unde dicunt, etc. 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, etc. & que non nominantur in B●evi; unde petit judicium de Brevi, etc. & Edwardus & alii non possunt hoc dedicere: Ideo consideratum est quod praedictus Johannes eat inde sine die, etc. This though it may seem strange, yet may properly enough be called a Gavelkind: for let the Custom of any place be according to the usual or unusual way of Partition, it is but the Tenure of that place, and will come well enough under that Denomination; and that which Mr. S. brings in his 49th. page, as a Solution to an Objection, viz. That it is no other than a Custom generally spreading itself throughout the whole Country in Land of that nature; should have been thus laid down, (without confining it to the County of Kent) viz. throughout any Country or all Countries in Land of that nature, for so indeed it is. In the Villages round the City of Hereford, Item, Lou, per Custonie a●pel. Burgh-English en ascun Burgh, le fits puisn inherita touts les Tenements, etc. Littleton, Lib. 2. Sect. 211. I find their Lands are all held in the Tenure of Borough-English; where (without difficulty I conclude that) it is a Custom spreading itself 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 Manors; and the Suitors here do as much stand upon their Customs, as in Urchenfield they insist upon their Custom of Partition among the Males, or as Wareham in Dorsetshire among both Males and Females: another sort of usage in the Tenure of Burgh-English, is mentioned by Sir. Edward Coke, upon * Lib. 2. Cap. 11. Sect. 211. Littleton, in these words; within the Manor of B. in the County of Berk, there is such a Custom, that if a Man have divers Daughters, and no Son, and Dyeth, the eldest Daughter shall only Inherit; and if he have no Daughters, but Sisters, the eldest Sister by the Custom shall Inherit, and sometime the youngest; and divers other Customs there be in like Cases. And brings in Britton to strengthen him, (and to confirm what I have said) saying De terres des ancienes demeynes soit use solonque le ancient usage deal lieu, daunt 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 astun lieu que le puisne frere avera tout. Here you see several usages, and the like with the usage of Warham, and all according to the usage of the place; which is their Gavel or Tenure. But to return to that which is commonly received for Gavelkind, which is a Partition among all the Males, notwithstanding the existency of Females; of which sort there are also many kinds, some that consider the Elder, as that in Urchenfield; others that have a greater respect to the Younger, as that in Wales; some sort more free, other 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 infers Knights-service, another Wardship, and all of them their Gavel, under the Community of Partition. Ex leg. Howeli Boni M S. penes Authorem. The first is this, Si quis habuit plures filios, & aliqui eorum vel ownes praeter unum mortui fuerint, ille unus hereditatem omnem habebit, si potuerit pro heredictate sua Domino respondere: Here by Law care is taken, that in case all the Sons should Die, except one, then that that one ought to enjoy the whole Inheritance, to which certainly he had no right, (that is as to the whole) had the other Sons lived; and the Law is so general, that it refers not especially to the Eldest, or to the Youngest, but to any of the Sons, who all alike had the same interest and propriety. Nevertheless, this privilege is under a Condition; and that is, Sirpotuerit pro 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 express of the Tenure of partition, but also the service due to the King from the Land, and a Title of Wardship to the King until the service by the proprietor can be sufficiently performed. And although Mr. Campden treating of the Court of Wards, saith, veteri enim instituto è Normannia deducto, & non ab Henrico tertio; yet this shows the Britain's 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 anciently our Britain's had that wisdom in themselves, and such Politic Customs among themselves, that show the little need they had of borrowing from others; and I believe this is as ancient an express of Wardships as may be found; certain I am, it is the ancientest I have met with; and notwithstanding the Britain's had it amongst them before their acquaintance with the Normans: yet that which Mr. Campden writes may be true, if he means only the Courts of Wards; but the Tenure by Wardship enjoys that antiquity I before have showed. But a little to consider the form and manner used in the composure of these Welsh Laws, I observe, that frequently it occurrs among them, that the expression of the significatum in the Latin 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 easy to the understanding of the concerned Subjects. Aliqua parentela, doth not so fully explain the design of the Law, as it is, with (id est Gueily-gord) which word turned into Latin signifies ex amore lecti aut concubitus; and is derived from gwely, lectus & cubile, and gordd, Malleus, it is, etc. the mawl of the bed; or the effect of beddmalleating; an expression used by the Britain's to difference such Children as were legitimate, born in the true bed of Wedlock; from illegitimate, or such as were born in bastardy; yet for these, there was a provision in the Laws, but that was ex patris benevolentia; here, in this Law the Title of partition is made out; yet so that in all cases the Land must not be of necessity subject unto it; for if the Legitimate Children have not divided the Lands; and it should chance that all of them die 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 die; what shall become of his part and apportionment? This objection is solved by another of their Laws; which that it may not want any thing to the full explanation thereof, I will bestow the transcribing of it, the rather because in all parts it confirms the British Tenure, or Gavel and is this: Si aliqua progenies inter se dividerit hered tatem; & post aliqui eorum defecerint; pars eorum in manu Regis cadet; quia alii partes suas secundum divisionis rationem habuerint; here it is provided that the Progenies must inter se hereditatem dividere; and than if any portioners die after the partition, the part or portion of the deceased Escheats to the King; and the reason and ground thereof is there rendered; Quia alii partes suas secundum divisionis rationem habuerunt; because that each one had his share or apportionment according to the Rule or Law of dividing or parting. But because Mr. S. doth write of the great privileges belonging to Kent by this Tenure, I shall make in the following Chapter CHAP. VIII. A Competition of Privileges betwixt Kent and Urchenfield. MUch of my enquiry hath, in these last Chapters, been spent about the singularity of the Tenure of Gavelkind in Kent. I now proceed to show a competition in privileges betwixt other places subjected to this Tenure, and Kent. For that Mr. S. saith in his 53. page, Kentish Gavelkind consists of many singular properties; which may as well challenge a share and right in the custom's name as may that of partition, such as dower of the Moiety, 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 Custom, (which I shall discourse hereafter) nor that the singular properties of that Land in Kent, comes near to that in Urchenfield. * Kanc. Rot. Tur. Lond. Claus. 8. Rich. 2. m. 2. I grant they are the same in case of Felony, for I find it Recorded, Rob. Bonehatch was hanged for Felony; the Sheriff of Kent seizes on his Land in Chertham, held of the Archbishop in Gavelkind; the King writes thus to the then Sheriff, Quod Reginaldus Dyke nuper Vic. come. predicti habuit inde annum, diem & vastum: non obstante quod ex antiqua consuetudine approbata, usitata & allocata de Ten. que sic tenentur, secundum consuetudinem de Gavelkind: in hoc casu nos habere non deberemus annum, diem neque vastum; nec capitales domini inde escaetam, set proximi heredes sic convictorum & suspensorum haereditatem suam immediate consequuntur, felonia illa non obstante; this is the right of both, and of all Wales. I will not here compare the extent of the two Regions together; but yet a small matter would persuade me to believe, that at this instant day, there is as much Land subject to Gavelkind in Urchenfield as there is in Kent. And here first let us observe that the Land that is thus partible, cannot be held or received to contra-distinguish it from Knights-service-Land; for if it be not held by all or most of those ties and bonds by which Knight-service-Land is invested; it must then hold by some other servile or base Tenors; Therefore the honourable services of the Lands in Urchenfield by their Tenure are in gross Recorded in Domesdey book thus. In Arcenefelde habet Rex C. Domesd. penes Cam. Sccii. homines IV. minus, qui habent LXXIII. car. cum suis hominibus; & daunt de consuetudine XLI. Sextarios Mellis, & XX. solid. pro ovibus quas solebant dare, & X. solid. pro fumagio. nec dant geldam, aut aliam consuetudinem, nisi quod pergunt in exercitu Regis si jussum eis fuerit. These Ninety six men here spoken of I reckon them to be liberi homines; yet such as held in Gavelkind; and the seventy and three Ploughs with their men, I look upon them to be their villani; and both liberi & villani to hold their Lands in Gavelkind; for that I find all their Lands in that Territory which consists of two hundreds, are so held to this day. You find them free from payments and Customs anciently imposed upon the rest of the Nation, because as a special remark it is said, nec dant geldam aut aliam consuetudinem, unless it be to march in the King's Army when they are commanded; yet paying (as the rest of Wales doth) their Tatu-fooch, and Talu-ffurn; this last being the fumagium there Recorded, and is a payment for fire; whether Peter-pences or no, I am not certain; but incline to the negative: because it is paid still to Lords of Manors generally over Wales to this day. But to clear the distinction that I made just now of Freemen and Villains in Urchenfield, that so I may not seem to speak without book, I gathered it out of the same Record; which in the next Paragraph gives a further account in these words: Domesd. Si liber homo ibi moritur, Rex habet caballum ejus cum armis: de Villano cum moritur habet Rex unum bovem. The first seems to me to be Relief from those that held by Knights-service; because his Horse and Arms when he died did belong to the King; the second to be Heriot; both which were ancient British customs; as you may perceive by the conclusion of all the Customs. These men had the Chief Honour in the Army given to them; for cum Exercitus in hostem pergit, Domesd. ipsi per consuetudinem faciunt Avauntwarde, & reverstone Redrewarde; they did lead the Vann to fight, and out of the field brought up the Rear. These honours were not the least in those days I assure you, no more than in our age: I say, these men enjoyed these and many other privileges, with their Gavelkind, unto this present day; which being all compared with the Laws of Howel-dha seem to be the same with them, as for satisfaction for murder, for burning of houses, etc. all certified in Domesdey, with this additional Paragraph in the conclusion. Hae consuetudines erant Walensium tempore Regis Edwardi in Arcenefeld. I know not what could have been said more pertinent, they have still this Tenure of Gavelkind, and they have those other enumerated Customs, derived to them from great Antiquity, (before the Norman Conquest) which are all certified to have been Consuetudines Walensium Tempore Regis Edwardi; and this by the convictum est of this Record; so that it seems plain that this Custom of partition among the rest was devolved over to them as a Welsh custom; which by the Laws of Howel-d●a, I find was so paramount, that unto it, as to the Centre, all other provisionary Laws, found among them, do point and have reference; and not probable to be here planted by imitation of any other foreign nation or people. But to return again to the competition; this Region, * Regio de Arcenefeld. for so in ancient writings it is called, hath not only the like privileges in respect of Dower of the Moiety; 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 enrolled, In Placitis coram Rege. Pasch. Anno 9 Majus Edw. 1. Heref. 32. Homines Hundredi de Irchinfeld à tempore quo non extat memoria, placitaverunt, & placita sua habuerunt de omnibus placitis que ad coronam pertinent: Sive de Appellis sive de transgressionibus contra pacem Regis, solummodo coram Vicecomite Heref. & non coram aliquibus aliis justiciaris: this was exhibited in reference to some appeal made in derogation of the power of Irchenfeld to the Justice's 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 plead it is called Libertas de Irchenfeld; and in case of Appeals, or any thing else that was impleaded out of the Liberty, I find that the Ballivus Libertatis de Irchinfeld came thither, and oftentimes claimed those Liberties; which were all ordered unto him, (that ever I yet could meet with) for the use of the Liberty. They have within that Circuit, a Liberty to Arrest for any Sum of money whatsoever. That whoever purchases Lands there may bequeath them to whom he pleaseth, In Rot. 20 Ed. 1. penes Camer. Sccii receipt. as that of the 20 Edw. 1. between the Nephews of Philip de Martinestow and Glodithan fill. Mauricii fill. Wasmaeri; which said Gloditha pleads, quod unusquisque qui terram habet infra Hundr. de Irchenefeld de perquisito suo potest illud perquisitum legare cuicunque voluerit tenementum, etc. Tenementum illud leg atum fuit pred. Glodithe. Unde dicunt quod Breve istud non currit infra Hundred. pred. To this, Jurati dicunt super Sacram. suum quod predicta Tenementa sunt legabilia; & quoth predict. Philippus Tenementa illa legavit predicte Glodithe; & quod Breve istud non currit infra Hundred. predict. Ideo Glodithe concessum est inde sine die. They have a formal way of Judgement 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 Suit and Doom in the Court of that liberty, and hereupon are called Doomes-men, that is to say, men of Judgement; or such who judge of matters in Controversy. Rot. quo. War. ibidem. Therefore in the Quo warranto roll of Irchenfield in the 20 Edward 1. it is Recorded, that Jurati Hund. de Irchenefeud, Webbetre & Greytr. dicunt, quod Botholin qui tenuit villam de Comboglin solebat facere Sectam ad Hundr. predict. & esse unus Domesman de eodem Hundr. etc. and in other Collections of Antiquity that I have transcribed, there is one Record that is Entitled 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 King's Messages into Wales, and to Pray for him in three Churches every week; and in another Record, which is instar omnium, and by it they as it were were left to their own Liberty, and are said to be extra Comitatum; not bound up to any strictness by the Country Laws. Which how far transcending the Kentish privileges, I leave to any to judge. Now if Dower of the Moiety, and not to forfeit Lands for Felony, be the greatest privileges Kent hath by the Tenure of Gavelkind; then are the privileges of other places where the use of Gavelkind is not at this present, far greater: as in some special privileged Hundreds and Precincts, etc. in the discourse of which it will be besides the matter in hand to engage. I proceed to the discourse of. CHAP. IX. Several sorts of Gavel not relating to the Tenure answered as urged by Mr. S. How that Gavel was understood; by our late Lawyers; How in Domesdey by comparing places together, and how among the Saxons; a Discourse upon the Writ called Gavelet. MR. S. In his tenth page writes that the word Gavel, as to the main part of it, frequently occurrs in the old Records of some Manors out of Kent, sometimes simply, but for the most part in composition; for example in Gavel-erth, Gavelate, Gavellond, etc. 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 occur in some old Records of Manors 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, etc. is little to our purpose. Several such I have met withal, and divers different from what Mr. S. hath reckoned. I have encountered with a Pride-gavel; which in the Lordship of readily in the County of Gloucester is used and paid unto this day, as a Rent to the Lord of the Manor, by certain Tenants; in duty and acknowledgement to him for their Liberty and Privilege of Fishing in the River Severn for lampreys; 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 Tenants to Digg up Sand for their uses. Many such the Reader might be furnished withal, did I conceive they would redound in any measure to our discourse; for my judgement is, that this Gavel in these Compositions, and Gavel in the Tenure, are very different in their acceptations, as I shall show anon. But to examine Mr. S' Collections and Observations concerning these compounded Gavels; where in his Paragraph of Oate-gavel (in pag. 21.) he declares this was a certain proportion of Rent-oates served into the Lord, sometimes in Kind, and other while, by composition redeemed with Money; and out of South-Malling Custumal urgeth this, quod omnes operarii debent reddere annuatim quod dicitur Gavel-otte in xl m2. (i. e. in Quadragesima) and in another account roll of the same manor, it is said concerning a certain Tenant, that, respondet de Octo quarteriis, etc. receptis de Gabulo Custumariorum, etc. and again, de Avena de Gablo vendita iiis. and xs. viᵈ. de quinque quarteriis, etc. de Gavel-ote de redditu venditis. This charge of ten shillings six pence upon five quarters, etc. sold, the Gavel-ote de redditu, I guess it to be nothing else, but an Imposition, an Excise, or an Assess; (which is the proper signification of the word Gablum or Gabulum) and so to be understood: as the Excise or Assess upon the Corn sold by the Tenants, when for Rent they should have paid Oats in kind. Which receives a little explanation by the precedent account; where it is said, that respondet de octo quarteriis, etc. receptis de Gabulo Custumariorum; and again, iiis. de Gablo de Avena vendita: the Excise or Assess upon the Customary Tenants for viij quarters sold, and the iiis. to be understood in the like manner, that is, an Imposition or Excise for Oats sold. Certainly Gablum or Gabulum is not a word so much out of use, that we had need to grope, or were forced to search after it, as it were in the Dark; for even in these our days with ease we may produce the use of it; bearing the same Signification as I have now given to it; to the same purpose and sense do I find it used in that prodigious insurrection at Naples, within these few years under Massaniello a Fisherman; where the Story translated (in this point I may say Literatim) gives the ground of it to be a certain Payment or Excise upon Fish, which the Italians call Gabelli; and we have transmitted unto us in the Translation, Gabells; known in Spain by the term * Martinus Zeillerus in his ●inerarium Hispaniae out of Mariana, lib. 16. cap. 9 and lib. 17 cap. 8. Et Hugo Linschoten, saith, Anno 1341. Introductum est vectigal H●s●ans, i. e. Alcavala & Italis Gabella dictum, quod aliquoties postea auctum suit. Ejus vi coguntur subditi decimas pendere, quotiescu●que merces, bona, praedia, aedes & ageis ven●untur. Eidem obnorii sunt cujuscunque generis op●●ices, ut sutores, sartores, lanii, & quicuaq●e officinas a●●●as habent. Vinum quoque sive uvae colliga●tur, sive ipsum in R●g●o divendatur, sive in exteras regiones navibus deseratur, etc. pag. 78. Alcabala or Alcavala, which as Minshew doth expound it, is, Datio, Redditus, Census, Tributum, Vectigal, Portorium; and in English is rendered, an Impost, Custom, Tax, Toll or Tribute; and from our use of it is called gabelle, 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 immobilibus: and is the fame which Mr. S. pag. 23. upon Swine-gavel doth cite, Et de viis. xd. de tribus porcis de gablo venditis; in which place this de Gablo signifies for Gables, or upon the account of that Imposition; and certainly may without any force upon the word be rendered at large, as Mr. S. hath done it, A Rent: for Rent in Latin is, Redditus, which is, a Payment made or given for any thing whatever; and Sir Edward Coke upon Littleton, writing of Rents, saith, L. 2. c. 12. s. 213. That bysome, Redditus dicitur à redeundo, quia retro it & quotannis reddit, etc. for reddendo inde, or reservando inde, or the like, is as much to say, as that the Tenant or Lessee, shall pay so much out of the profit of the Lands; for, reddere, nihil aliud est quam acceptum aut aliquam partem ejusdem restituere, seu reddere est, quasi retro dare; and hereof cometh redditus, for a Rent; and adds this to it; Here note (saith he) for the better understanding of ancient Records, Statutes, Charters, etc. that gabelle or Gavel, Gablum, Gabellum, Gabellettum, Galbellettum and Gavillettum, do signify a Rent, Custom, Duty or Service yielded or done to the King or any other Lord; and then citys 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 myself Transcribing out of the Original book, find it to be thus; In Burgo de Wallingeford habuit Rex Edw. Viii virgat. terre & in his erant 276. Hage reddentes XI. lib. de Gablo; so that Liberas should be corrected and read Libras. The other difference betwixt the two Citations is only Sir Edward Coke his Comment or Construction of it; XI. Lib. de Gablo, & qui ibi manebant faciebant servitium Regis cum equis vel per aquam usque ad Blidberiam, Reddinges, Sudtone Besentone, & hoc facientibus dabat prepositus [conredium] mercedem non de Censu Regis sed de suo. Ex Domesd In Berrochescire. but this it seems he takes for granted, that Gablum hath no other signification than Rent: for by the same Record, to be sure that that Rent of xil. (not ixl.) should come into the King's Coffers, there is a Paragraph, that provides for it, where it is written, what and how the Soldiers that the Burrow shall find upon all occasions for the King, shall be provided for, and is thus ordered; [Conredium] Mercedem non de censu Regis sed de suo; all the Cens or Rent that the King had, that I could find, is that Gablum of eleven Pounds; and this Gablum was not always paid in Money. For in Sudsexe, under the Title of the Lands of William de Warene in the same Record, is this, that Radulfus tenet de Willielmo (that is of William of Warren) Bristelmestune. Brictric tenuit de dono Godwini Comitis T. R. E. in Dominio, etc. De Gablo IU. milia Alletium; and under the same Title it is there remembered; Pluntune, Hugo filius Ranulsi tenet de Willielmo, etc. ibi, etc. Silva de XX. porc. De gablo XVII. porc. But that Gablum did as well relate to Money as to other things in kind, either Herrings or Swine, is very plain by that Record in Domesdey book, in Windesore in Berkshire, where it is said, Rex Willielmus tenet Windesores, in Dominio. Rex Edw. tenuit, ibi XX hid, etc. & adhuc sunt in villa C. Hage V minus; ex his sunt XXVI. quiet de Gablo, & de aliis exeunt XXX. solid. And lastly, (out of the same Book I still write) in Sommersetshire it is thus expressed under the Title of Terra Regis, which I desire the Reader to observe; Rex tenet Cedre (I suppose it is that Chedder so famous for its Cheese) Rex. Edw. tenuit; nunquam Geldavit, nec scitur quot hide sunt ibi, etc. in Dominio, etc. XX. Bord. cum XVII. car. & VII. Gablatores red. XVII s. These seven Gablatores did pay for Rent 17 Shillings; and from their paying of Rent were termed Gablatores. To me it seems probable, that this Gablum is to be distinguished from a Rent or Payment made upon Contract or Bargain; and have Relation to such an one as was imposed by the Power and Will of the Lord; and these different sorts of Payments are passed in Domesdey book under several expressions, according to the nature of them; where sometimes it is written, that one reddit to such an one so much, without any other addition; and this I believe is Rend upon Agreement and Contract. Another, reddit de Consuetudine so much; and a third, red it de Gablo so much; and if the Oate-gavel, and the Werke-gavel, be taken into this Observation, with all the rest by Mr. S. mentioned, they will prove to be of the Offspring of Gablum, and should have rather been writ with a B. than a V Consonant; which Transmigration is so familiar in our European Languages, that nothing more frequently occurrs; and not only among these, but also in most of the Oriental Languages, where the Beth or B Masculine doth pass after the same effeminate manner into V especially where in the Hebrew and Chaldaic there is to be found the difference, by the interposition of the Dagesch or Prick in the Letter, without which it is sounded as an Aspirate; and so likewise is the F. familiarly turned again into V Consonant; as it falls out in most Languages, especially in the British. But to return to this word Gavel, which if it shall receive a common acceptation, and that according to what Mr. S. hath rendered it, which he labours to make out to be the chief Acme of his design, and all is, to have it signify a Rent or Imposition, in which we are agreed; but then in this we differ and descent, that there ought not to be allowed to it any relation to the Tenure of Partition, (which is my opinion) and which Mr. S. will hardly admit. But to run over some more of his Gables. That which he discourses of in his 30th. page is a For-gavel, which is rightly rendered foris Gabulum, and is defined to be quasi extra (vel praeter) Gabulum quod Domino capitali debetur: and this corresponds with what before I have said, that it was a Rent or a Duty, besides, over and above, or beyond the Original contract or bargain. The like is in Mete-gavel, which is Cibi Gablum, a Rent of meat or food; Swine-gavel, which is porcorum Gablum, a Rent of Swine. Werke-gavel, and Werke-gabulum, which is operis Gablum. Hunig-gavel, which is Gabulum mellis, * For before that Sagar was from the Indies brought among us, the use of Honey was frequent instead thereof: So that I have observed in some very ancient 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. Rent Honey; of which sort in Domesdey you may find much; and in the 60. Law of King Ina, we find a bere-gafol, which is a Rent of Beer or rather Barley, as Mr. Lambard expoundeth it. For in some Countries of England, and in Scotland, they to this day call Barley, Beer. There is also in the 66. of King Ina's Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, (speaking of a yard of Land) which Mr. Lambard renders to signify 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, but 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 Countryman doth not sit on Rent Land: for But in the old English, as well as to this day in the present Scotch, signifies, without, or wanting, etc. 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, etc. ꝧ He ðam cyng gafol-gyldan maeg, which is thus Translated; Wallus si in eas opes creverit, etc. ut annuum Regi censum pendat; which is, if a Welshman increaseth so in Riches, etc. that he can or might yield a yearly Rent to the King: Such a one perhaps as we call a Subsidy man, or a Man in the King's Books. So in the sixth of King Ina's Laws, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which is, if any one Fights in the House of one that pays Rend; 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; Mr. S. pag. 33. Wallus censum pendens annuum, etc. in the same sense is the word Gavel-man cited by * Many there are that with Mr. Selden account gafol to signify several things, as tributum, etc. but not in the least with reference to the Tenure; he citys the A●●ales Anglosaxoas In Bibliotheca Cottoniana, Anno 1012. Ða ꝧ gafol gelaest sae & frið aþas asporene ƿaeson þa to feared se Here ƿide sƿa He aer gegaderode ƿas. Ða bugon to þam cynge of þam Here fif & feoƿertig scypa. & Him beHeton ꝧ Hi ƿoldon. þysne eared 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 & vestiret Rex. Danorum Rex tunc Swanus crat, quorum ita pepigit Ethelredus. Utrumque autem praestationis quam diximus genus Danegeld, Danegeldum seu Danageldum, id est, Tributum Danicum dicebatur. Seld. Mar. claus. l. 2. c. 11. Here we may observe that geld is most properly Tribute, though in the former part of this Saxon citation, Mr. Selden renders gafol by Tributum, and properly it doth signify a payment. Mr. S. which hath no more in signification than one that pays 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 pays a rent in Cumberland, as in Kent. In this recited page it is, that Mr. S. hath rightly fixed his Gavel; for (saith he) one thing more I have to note before I leave Gable, Gavel, etc. that with Mala it signifies Rents, Services or Customs; and in his 35th. page he addeth, by this time the Reader is satisfied (I hope saith he) touching the true construction of Gavel, Gafol, Gable, or how ever else he shall chance to find it written, in each importing Cens, (i. e.) a Rent, either in Money, Provision or Works. To conclude, I am of the same opinion with Mr. S. that these intermixtures and compounds do all hold a reference to gafol Gablum,, or Gabulum; that all of them have one and the same exposition; yet that none of them have any relation to the Tenure of partition, or to any other Tenure besides the Renting or paying of a Rent for Land, etc. There is only one thing more left to be considered, which may seem to have in it some strength; and that is in the 31. page of Mr. S. where he citys this, & postea per quandam consuetudinem quae vocatur Gavelate, usitatam in Comitatu isto (viz. Kanc) de terris & tenementis de Gavelkind, pro redditibus & servitiis quae à retro fuerint de eisdem; per plures annos; devenerunt eaedem terrae in manus cujusdam Abbatis, etc. Now this consuetudo de Gavelate used in the Lands and Tenements held in Gavelkind, seems the one to have relation to the other; for Mr. S. in the beginning of that Paragraph tells us, that this Gavelate was not a Reut or a Service, but betokeneth a Rent or a Service withheld, denied or detained, causing the Forfeiture of the Tenement to the Lord; and whereas that Record saith, it was used in that County upon Lands and Tenements held in Gavelkind; Sir Edward Coke (as Mr. S. himself citys him) saith; Gaveletum, is as much as to say, as to cease or let to pay the Rent; Breve de Gavelleto in London, est Breve de cessavit in Biennium, etc. pro redditu ibidem, quia Tenementa fuerunt indistringibilia. So that this Brief lay in London as well as Kent; and Minshew in his Dictionary upon the word Gavelet exemplifies it by a Case: That if any Tenant in Gavelkind, withhold 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 until the fourth Court, always with witnesses; and if within that time, he can find no distress in that Tenement, whereby he may have Justice of his Tenant, then at the fourth Court, let it be awarded; that he shall take that Tenement into his hand in the name of a distress, as if it were an Ox or a Cow; and let him keep it a year and a day in his hand, without manuring it; within which term, if the Tenant come and pay his arrearages, and make reasonable amends for the withholding, then let him have and enjoy his Tenement as his Ancestors and he before held it; and if he do not come before the year and the day be past, then let the Lord go 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 anciently said, Nighesith yield and Nighesith geld. (i. e.) Let him nine times pay, and Nine times repay. Hath he not since any thing given? nor hath he not since any thing paid? let him pay V lib. for his error, before he become Tenant or Holder again. See hereof, 10 Hen. 3. Fitz. Cessavit. 60. & statute 10. Edw. 2. of Gavelet in London. In the Collection of Statutes London 2. matter much tending to this purpose; that by this word Gavelet, the Lord shall have the Land for the Ceasing of the Tenant. I have read much to this purpose in Mr. Lambards' perambulation of Kent; but the whole hereof, relates to a Writ of Recovery for default or nonpayment of Gafol or Gable, or Rent; the word Gavelet which is nothing but the let, hindrance or withholding of Gavel, Gable or Rent; which Writ runs in London as well as in Kent; and all of it, nothing to our Tenure in Question. To the same purpose is that which Mr. S. urgeth in his 12th. page; where he gives a Learned exposition; which serves for a fortification as well as an explanation upon the word Gafol; which he describes varied in the Dialect, Testament. Saxonic. being written, gafol, gavel, gaful, and gafel, and shows how it passes in Matth. 17. Vers. 24, & 2, and cap. 22. vers. 17, & 19 to signify Tribute; which I think may prove an acceptation thereof naturally enough; and in Matth. 25. vers. 27. it serveth to express advantage or usury; and in King Withreds Laws of Sr. Henry spelman's Edition of his ancient Councils, it is expounded to us, by what it is commonly received Redditus vel persio; and Mr. Selden in his notes upon Eadmerus, renders geƿ●●ic gaful, to signify Solitus census; the wont or usual Payment or Rent. But Mr. S. concludes thus. To be short (saith he) Gafol is a word, which as Gablum in Domesdey book, the skilful in the Saxon tongue (with Sir Henry Spelman else where) turn by what Gabella is expounded abroad, viz. vectigal, portorium, Tributum, exactio, census, etc. in Latin; but in English with Verstegan, Tribute, Tax or Custom, whereunto Mr. Lambard and Sir Edward Coke agree; upon which and to all Mr. S. craves leave to add Rend, which I shall not in any wise deny him; provided, as I said before, he will be contented with that exposition to signify Rend, and not go about for the sound sake to impose it on the Tenure; for in this I would beg an information, or rather satisfaction, whether Gavelkind-land may not be, and is not held without Rent? which if it be found to be, as I know it is generally used in Urchenfield, and perhaps in other places also, then doth it destroy the very nature of the Etymologye. But with this part, upon the mistake of the word Gavel, in those compounds mentioned, I have spoken sufficiently; and further I will not trouble the Readers patience about it. In the next place here are CHAP. X. Several Deeds cited by Mr. S. that have their Tenenda's ad Gavilikendam examined and expounded. I Am constrained to run over the Examination of several Deeds produced in Transcript by Mr. S. and having finished the Discourse of the word Single, and in Composition, I am come to experiment the Trial of it in the Term proper, with its affix, of which Mr. S. saith, pag. 38. Thus (for example) in a number of Deeds and Conveyances, which I have seen recorded in the leiger-books of the Cathedral at Canterbury, and St. Augustine's late Abbey there; phrased all of them after this manner: Tenendum ad (or, in) Gavelikendam, etc. I presume he hath cited the principallest of them; and if so, then (I assure you) I am not stumbled at any of them; and first, Pag. 39 for that Deed of the Sons of Wibaldus; who did grant, Infirmis de Herbaldune unam acram & dimidiam terrae, scil. Langenekre cum fratre suo Wiberto infirmo in perpetuam Eleem●synam; and to Gavelkynd: Reddendo sibi duos denarios, etc. Mr. S. rightly collects from the mould 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 join in the alienation of this Acre and an half to Herbaldune Hospital. I will not trouble myself about the Deed to Quarrel at their Scrivener; who seldom found dimidiam written for dimidium; or believe that he might in his intermixture of (and to Gavelkynd) make an ignorant coherence; we will grant it all right and strait, and take along with us what Mr. S. saith, pag. 51. that such an expression as Tenendum in (or, ad) Gavelkynd, or the like, was necessary to render the granted Land partible, after the Custom of Gavelkind, without the help of prescription, requisite in partible Land else where out of Kent; and hereupon refers to the pleading of Burga the wife of Peter de Bending; put down and published in the appendix to his book Script. 5. But the first he would have to be a gift or grant in perpetuam, but not in puram Eleemosynam; there is no more than perpetuam; which whether it be or not is nothing to our purpose; but the Reddendum as well as the Tenendum in that Deed hath somewhat not familiar; for it is said there, Reddendo sibi duos denarios, etc. which Sibi hath relation to Wiberto infirmo, the last immediately before mentioned, rather than to any other in that Deed: for all other persons therein comprehended, are by doubles; as, Nos filios Wibaldi Herbwinum & Eilwardum; Heredes suos Thomam & Paganum; with this also, Hoc concedunt filiae suae Basilia & Hawisia; so that sibi in the singular number has not relation to any else, but to the infirm Wibert. To him it was that the two pence was to be paid; and the profits of the Lands in common to all the infirm of that house in perpetual Alms; 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 Father's Land of that nature; and if not by this way, I can find no other to make any sense of it: for this clause, And to Gavel kind, hath reference clearly to the concession and Habendum, and not to the Reddendum; and if so, who are those that should hold it in Gavelkind? The Infirmes? no; for they were a body (though sickly) that could not die. Nor the Sons or grandchildren of Wibaldus; for they had divessed themselves of this Land, and invested their decrepit brother Wibert, with the rest of the infirmes of that Hospital with it. Nor could the Tenant claim any right by this Deed; for that it hath not relation to any Tenancies; besides, Hospitals in those days did not use to create unprosetable Tenors to themselves; and where Land is said to be held in Gavelkynd, there is an Estate of Inheritance; they are Syncategorematical or relatives. In the like sense is that Deed, which Mr. S. makes his Script. 〈◊〉 pag. 184. where Raduns From wadidit & concessit 〈◊〉 & Fratribus Hospitalis Sancti Laurentii juxtà Gantunriam (by his Deed) septem acras terrae meae (saith he) tenendas in Gavel-kind, de me & heredibus meis ●●ber●. & qui●●●, reddendo inde annuatim, mihi vel beredibus meis XLII. denarios, etc. 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 St. Lawrences' Hospital, seven Acres for five Mark, and reserved a Rent of two and forty pence, the Land to be held of him and his Heirs in Gavel-kind; which, as in the other of Herbaldune so was this to be understood, to be, to the common land 〈…〉 and behalf of all the Brethren; for if not so, I desire 〈◊〉 informed how it could ru● into the Tenor 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 Reddendum; so like wise in the second Deed where the Tenondum and the Reddendum are at a distance; that by means thereof it is not probable at all, that Gavel-kind should have any relation to the Reddenda in either; and seriously considered, do plainly contain a different use from either Rents or Purchase. But to proceed to those several grants produced by Mr. S. in relation to the Term as that of R. dei gratia Sancti Augustini Cantuar: Script. 4. shear 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 Marshland be longing to their Manor of Cistelet; Script. 6. and that of Alan the Prior and the Convent of Christ-Church in Canterbury unto Theb. de Einesford and his Heirs of fourscore Acres of Land in their Lordship of Northocholt, by them to be holden, by rent and Suit of Court at Orpinton; add Gavilikende; Script. 7. as also that of the same Prior and Convent to Stephen de Kinardentone of 〈◊〉. Acres and to his Heirs add Gaveli●hinde. Again that Deed of Gaufridus the Prior and the Convent of Christ-Church Canterbury to Joni and his Heirs of a Sheep Pasture in Osmundeseye: Tenend. Script. 8. (say they) de nobissuccessiuè ad Gavel-kind by Rent; and that his Heirs successively shall give de relevio LVIs. and Suit of Court at Leysdum. All these Grantees had by the virtue of these several Grants an instatement into the Tenure of Gavel-kind, which was an Estate of Inheritance, and was to run in a Parallel line with Lands of the like nature; that is, that the Sons or Children of the Possessor (when Deceased,) should hold those Lands according to the Rule of partition in Gavelkynd; 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. Lest of all to the purpose is that, Script. 5. in pag. 178. where it is said, Predecessores Dni. Regis concesserunt Manerium de Wells in come. Cant. postea concessum erat in puram & perpetuam Elcemosynam; nunquam partitum fuit nec est portibile; that is, it was never parted, nor is partible; to which, all that I can say is, that it never was, nor is like to be (so holding) Gavel-kynd-land. But the passed discourse in this Chapter only shows the Nature and Tenure of such Lands; And makes nothing at all to the Etymology or the investigation of the true derivation of the word in contest. To conclude, Mr. S. in page 150. draws from his several discourses a double Consectary (as he is pleased to term it.) 1. That the King may hold Land in Gavel-kind. 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 Germane Empire. 2. That the King holding Land in Gavel-kind, in case he shall grant it away to any Religious House in puram & perpetuam Eleemosynam (in frank Almoign) it remaineth notwithstanding partible; as before it came to the Crown; in their hands at least, whom the Religious men shall infeoff with it. The first part of this I grant: for if such Lands be given to any Religious society they remain partible, as to the profits of them, that is to say, among the Society; and so doth Land of any other nature whatever, in the same manner being vested, pass into a partible Quality; that is, the whole body having an Interest, all members of that body receive part and share of the benefit: but for any other sort of partition, I cannot fancy how it should be among them. And then again, it doth not necessarily follow, that those that are by this Society interessed with the holding of those Lands under them, should hold them in the Tenure of Gavelkind: for by such a Grant, (as I said before) in this Tenure of Gavel-kind, the said Society or body divest themselves of the fee-simple; and invest the taker with an estate of inheritance. And again, this must have a full reference to the Society their manner of granting it; and than it may even as well (if it were formerly Gavelkind-land) by their grant receive an extinction of its Tenure; for that in such cases (where it is (I say) so vested) it is wholly depending upon the force of the contract betwixt the persons concerned; and again, this same specifical Land may so fall out, as to be made the very site of the house, and the gardens of this religious Society or body; and how in such a case it will be capable of partition (except as I before have spoken, in the members their participation of an equal benefit) I know not. The progress exhibits CHAP. XI. Some offers at the termination (Kind) affixed in Composition to the word Gavel. MR. S. in his 37th. page saith, that Gavelkynd is a word compounded of Gavel and Kind; the latter Syllable whereof cometh, and is contracted of the Saxon word, gecind which by several good Authors is rendered, Nature.; Mr. S. in his 10th. page saith, that Gavel is the main part of the word; Which if so, than I hope I have dispatched the main part of my work, and could willingly join with Mr. S. in his Exposition of the latter part; for in what I shall declare myself in this Chapter, shall be only Scepticism. But I am confident of my opinion in the first and main part; and here I must take notice of, and give to Mr. S. his due honour for his ingenuous Ratiocination upon the common received Interpretation of Mr. Lambard, and all those that follow him, concerning the latter part of it, which he would have to signify Kindred; and that the whole word together is of a Saxon Original, and is, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is, give to all the Kindred; which flatly opposeth the very nature of the Tenure; because where such Lands are, that are subject to this partible quality, the Kindred do not share; nor are they partible at all among them: but in the common case of the failer of Issue, than the next of Kindred in the nearest Line. And in this pretended interpretation, the word Kin, supposed to be Kindred, doth seem to nullify by it, the known use of the Tenure: for if the Kindred be to part those Lands, then must it so fall out, that either the Children part them with the Kindred, or the Kindred without the Children; for if the Title by this Denomination be in the Kindred, it must be one of the two; and upon serious consideration I would think, that it deserves a Censure for any to affirm that Children are of Kin to the Father; for that Kindred or Kin betokens a more distantial relation than a Son is to the Father; which (should it take place in that Notion) would carry with it the confusion of Alliances; In Latin Kindred is called Cognatio, quia Cognati, quasi una communiter nati; vel orti ab eodem progenitore. These Cognati or Kindred, that are so distanced, may be said to be Sanguine conjuncti, and Consanguinei; be cause they proceed from one Progenitor; yet are well known, not to participate of the same privileges with the Children. For the Children of one Brother do not divide or part Lands with the Children of another Brother, by this our Tenure; but if the Land should thus pass, then by what Right or Title can the Children expect any part of it? for that according to this interpretation it should pass to the Kindred; and so (as I said before) being eminently implanted in them, it doth plainly seem to Debarr the Children, and Vacate the common use of Partition among the Sons: which is the more plainly Evicted by this, in that Daughters (in case it be insisted upon in relation to Kindred) are as much of Kindred to the Father as the Sons are; and yet in this Tenure of Partition, the Daughters have commonly no share, when there be Sons existing. Mr. Verstegan, who would willingly (observing some inconveniences in the Latitude of Mr. Lambards' exposition) restrain it; would make (Kind) to signify Sons or rather Children; which if in the last, than 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 showed. Doctor Powel in his Additaments to the Cambrian History, (which I cited fully before) saith; Here I think fit to say somewhat of the Custom and Tenure of Wales, etc. that is the Division of the Father's Inheritance among all the Sons, commonly called Gavelkynd; the Doctor writes Gavel in great and large Characters, and Kind 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 far from Peremptoriness in my own sentence concerning it. One while I thought it might have been derived from the British word Tennedl, which signifies generatio aut familia; as in that commonly used word Pen-cennedl, which is received and expounded to signify Princeps Generationis aut familias, the chief of a Kindred or Blood; who among the Welsh are reverenced and observed, as I told you the Lords or Chiefs of Clans were in the Highlands of Scotland; and so Gavel-kennedl, might signify Tenura familias aut Generationis: Which that I may bring it a little nearer to the ringing of the pronunciation; is by some reported to have been sounded Tennedh, which with great case in the composition may retreat into Gavelkynd, and is of the same use in that signification: Somewhat of that manner was anciently observed among the Britain's, (though it seems to be lost) for Morgan was a name of great use among them heretofore, as it is at this day; which signifies, Got of the Sea, Mergan signifies got of the Sea. as some Critics in that Language do report; and was thought to be the proper name of that Arch Heretic, 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. Kind. The other imagination was this, That the Saxons upon their first Co-habitation with the Britain's, did borrow many of their words, by which they expressed the Denominations of places and things; I have already shown 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 relics thereof in the very French; (being the remainders of the ancient ,) which at this day is the most entirely kept by the Britain's of North-wales; for all things that related to Nobility, to Propriety, to terms of Law, to Customs, to Offices, etc. are in British carried through many ages from the Britain's by the Saxons down to us: The Saxons call some rents Mailes, the same word the Scots use to this day; Pag. 34. and is as Mr. S. observes originally British, coming of their Mael, which (saith he) in the Welsh Vocabulary is in Latin rendered, 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 anciently, per Gablum & malum. The names of Towns were like the ancient Nuptials of which King Edward the Confessor speaks, betwixt the Saxons and Britain's; by which they became one Nation. So that the Denominations of ancient Cities and Places did, and do, for the most part participate of both; as in Durham, Dunholne, Dorchester; the first Syllables being British, the later Saxon. Chester is a Saxon imitation of the Latin Castrum; for which the Britain's 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 Britain's, 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 Controversy; that in case, Kind should chance to be a Saxon affix, such a mixture would not prove a thing unusual in their practice; and may very properly be so Conjoined. If Kind, or as it is in the Saxon gecynd, signify the same thing as in Mankind; (and is in Latin rendered 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 apprehensions; which being set together would signify and that properly enough, Genus Tenurae: For that Kind of Tenure deserved to have a Denomination of greatest remark, it being (if not the only) yet the most eminent and most general Tenure amongst them. But having already herein professed * Scepticism. 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 investigations 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; until a better can be produced. And so I pass my Discourse over to treat somewhat CHAP. XII. Concerning the Germane Landscheutan, and their ignorance of Gavelkynd. NOtwithstanding the uncertainty we labour under, as to the Termination, in the precedent Chapter; yet in this we shall show 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 question; and Mr. S. himself in his 45th. page writes thus; That, such is the nature and condition of Gavelkind-land; being not only subject and liable 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 withal 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 civilians, joined 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 Gavelkind 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 Gavelkynd, nor of its sound; which had it been of a Saxon pedigree, assuredly 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 Gavelkynd? and notwithstanding all this, that this Gavelkynd 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 wonderful 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 signify Part-land; and I think is improperly written, Land-shifting. For Lands are as well said to be shifted, when upon the Father's Decease they descend to one Son; as when they are parted among many; so that shifting doth not so properly signify a Partition, as it doth an Alienation. But properly 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 Latins call Surculus; and believe that hence it is, that we in our English call young twigs or Branches, Shoots: so that Land-skiftan or Landscheutan is the same in signification with Gavelkynd: both signifying Tenura or Terra familias, Progenici, Stirpis aut Surculorum, which is the Tenure or the Land belonging unto the young twigs or Branches of a Family or Generation; If you grant me the entire British interpretation thereof. But whether it be Denominated, as Mr. S. and others have it, Land-shifting, or this way which I adhere unto, I will not make it my business, about it to contend; only let me re-mind you, that this Custom is so far 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 Tenors 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 Conquerors, for the more secure Settlements of their Militia's. Which ushers in the matter of the next Chapter, which shall be to show CHAP. XIII. When and for what Reasons Primogeniture had the preference. ALthough this Theme 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 Mr. S. saith in his page, viz. The Conqueror consented to the succession of the Eldest Son alone, partly for his own and the Realms better defence and strengthening, and partly for the upholding and maintenance of Gentile families. Which if true, than it was that primogeniture was first set into a peculiar esteem and account; and this an innovation of the Norman Conqueror; and our Gavelkind probably the general use before. But in this Case we had best use moderation, and admit that neither the one nor the other had in those times the sole pre-eminence and singularity; but as there were divers uses in forfeitures under West-Saxen laege, Danelaege and Merchenlaege; so I believe that there were then several Customs, and usages as to the descending of Inheritances; all of which may with small courtesy be allowed to be according both to Law and Custom; for Sir Edward Coke upon Littleton, in the place thereupon cited by Mr. S. to confirm his assumption, saith: Qui prior est tempore potior est jure; and affirms that in King alfred's 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 weakened; but in those day's Soccage-fee was divided between the heir Males; and here Sir Edward Coke is of the opinion that it was the general Custom of all England; and so continued, till by fractions it should seem that the military settlements were infringed. And to strengthen this opinion, he introduceth Glanvill; of which words Mr. S. hath also made use in his book, and are thus. Cum quis haereditatem babens moriatur, etc. si plures reliquerit filios●; tunc distinguitur, * Judge Dodaridge in his Treatise of Nobility, p. 119. saith: It was anciently ordained, that all Knights fees should come unto the Eldest Son by succession of Heritage, whereby he succeeding his Ancestors in his whole inheritance might be the better enabled to maintain the Wars against the King's Enemies, or his Lords. And that the Soccage Fee should be partible among the male Children to enable them to increase into many families, for the better furtherance in and increase of Husbandry, haec. ex. Sr. I. Coke. 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, etc. Si verò fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes filios, etc. The last part of this Paragraph hath reference to secundùm 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 dividenda; this relation it hath to the Civil Law; as it shows its Universality, so also its Antiquity. And notwithstanding, 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 certainly as Sir Edward Coke shows in his Chapter of Villeinage upon Littleton, concerning a sort of Gavelkynd in the bearing of Arms; for they (saith he) descend to all the Sons, every Son being a Gentleman alike; which Gentry and Arms do not only descend to all the Brethren; but also to all their posterity: but jure primogeniturae, the eldest shall bear as a badge of his birthright his Father's Arms 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; & additio probat minoritatem. I have only this to observe, though (I believe it) not unknown to any one, that knows any thing of Tenors (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 twofold sort of infeoffment found anciently 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 * In Domesdey in Dorsetshire, there is this, Tren Tainorum Regis, in one Title, and in the next it is thus for the same thing, Tren Servientium Regis. Thanes. The first was that, founded before and by William the Conqueror; the other was that, which was in erecting betwixt 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 continued and confirmed after the Conquest; the correspondence and progression of the British Language. ALl that I have aimed at principally, is to show that inheritances were anciently and generally partible, and would suppose them so, from the most ancient inhabitants of our Island, who were the Britain's; and so deduce the probability of the denomination of the Tenure (viz. Gavelkynd) from them. What I have already said in this matter, I will not trouble the Reader with a repetition thereof; only in this place take notice that the Saxons had their Lands commonly partible among them; (except it were in their Military Tenors) to which Mr. S. hath subjoined 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 expressed, nor do the words enforce it. It's ordered there indeed, that a partition of the estate be made, in the one, between, 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 explicitly thus; elcum. be þaer maeꝧe,; etc. 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 Mr. Lambard elsewhere) rectè: every one to have his due, haply after a Geometrical, not Arithmetical proportion. Mr. 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 only 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 Gavelkynd should not be like that in other Countries; but he gathers it and infers 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 showed before several sorts of partible Tenors, and none of them opposite in Condition or Nature, but that they may all come under the Genus of Gavelkynd; and all those Partitions, although not by equal Portions, yet are all according to the right of Gavelkynd, which I think is sufficient to make them appear Members of this Tenure. But let us examine under what consideration the Saxon Kings had this Tenure, (as it was diffusive over England) in their Laws. And first of all, those Laws of King Canutus, (wherewith Mr. S. is so ill satisfied) He, after he had very piously taken care for what concerned the Worship of God, by the counsel and advice of the Wisemen of his Kingdom; 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. ꝧ 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 Kingdom, and them we find to be Built upon the Basis of Partition: So in his 68th. Law, which is thus rendered, Sive quis incuria, sive morte repentina fuerit intestatò mortuus; Dominus tamen nullam rerum suarum partem (praeter eam quae jure debetur Hereoti nomine) sibi assumito, verum eas judicio suo uxori liberis & cognatione proximis, justè (pro suo cuique jure) distribuito, which in the Original is, Ac beo be His diHte seo aeHte gescyft sƿiþe siHte, þife, & cildan, & neh magon, aelcum be ðaer maeþe de Him togebyrige, which is as I conceive thus; And by his judgement let the Estate be shifted (or rather divided) according to right; Wife, and Children, and next of Kin, to each one according to that proportion that belongeth to them; this Shifting (if the word signifies so) or Division, must be according to Right. Where by the way note, that the Saxon word to them known was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and that they made no use of the word Gavelkynd. But this was a general Law, and (as I said before) several places had their several manners and proportions of this Tenure of Partition; yet all those Custom; were to be parted and descend according to Right. We find somewhat to the same purpose in the 70th. Law of King Canutus; Porrò autem quam maritus sine lite & controversia sedem incoluerit, eam conjux & proles sine controversia possidento: Sin quae in illum lis fuerit illata viventem; eam heredes ad se (perinde atque is vivus) accipiunto; and in the 75th. Law it is provided, that if any in the Army before or in the presence of his Lord, Dye fight, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 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 Confessor; 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 Conqueror confirmed, as in the 36th. La that passeth under his name. Si quis intestatus obierit, liberi ejus haereditatem aequaliter dividant. Now the collection from hence lies 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 Battle, or some such sudden Chance; that these notwithstanding, the Land shall run in its proper Channel of Partition, so that these occasions should not attain the power of altering the course thereof; which not meeting with such an Obstruction, would have without any scruple had its natural course of Partition. The like was not only in the Knight-service-land spoken of to be in King Alfred's time, but also in all their Bocland; and other Lands that had the force put upon them by Testaments or Deeds. This partition came yet a little nearer to us; for in the 70th. Law of Hen. 1. upon the account of Partition or Dividing; Provision is made, that Si mulier absque liberis moriatur, parents ejus cum marito suo partem suam dividant; by which I understand a Division of parts upon a part before received. And he that wrote the Glossary to the Saxon Laws, upon the word, Terra ex scripto, saith, Haereditatem vero temporibus illis non (quemadmodum apud nos) solus aetate Maximus adibat, verum ad filios omnes aequaliter fundus lege veniebat, quod illi (viz. saxons) Land- fcyftan dixerunt; & Cantii hac nostra memoria eodem vocabulo to shift Land; id est herciscere & fundum partiri, appellant. By which it seems the proper Kentish word is, Shifting-land; as by this Glossators' judgement, who I understand is a Kentishman; which, if so, let them be content with their Saxon Land-shifting; and let us alone with our Gavel, unless they will be pleased to own their true * The Britons. Patrons. The Laws I confess that I have lately cited, do rather glance upon the Custom of Partition, because it is supposed, and taken for granted, that that Custom was so Paramount, that there was little need of expressing thereof, which lies so Couched there, as it doth amongst the Welsh Laws. And are like our common Laws, known to all, yet not expressed: generally received, yet not written. In the 78th. page of Mr. S. (we are still upon the Tenure in question) is cited Davies his Reports, of the Irish custom de Gavel-kind, (which Book I have seen) and to it I say, if the Irish know the word by which Davies denominates the Custom among them; it further confirms me in my opinion of the British Etymology thereof; * Seld. Mare Claus. lib. 2. cap. 1. Scotland and Ireland were anciently reputed Britain, Hiberma 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicta est Ptolomaeo. Mahumedes Acharranides Arabs— Mathematicus egregius qui ante annos 900. floruit, Terrae latitudinem, inquit, observantes à loco lineae aequalitatis (Aequinoctialis) versus Septentrionalem partem, insula Tile quae est in Britannia, ubi est majoris diei longitudo 20. herarum, eam determinari deprehenderunt; Eriam & alii Thulen pro ipsa Britannia usurpacunt seu Anglia,— & Albategnius de Oceano quà ab Hispanis respicitur, verba faciens; In co, inquit, à Septentrionali parte sunt Insulae Britannicae quae sunt XII. & post haec ab inhabitationibus elongatur, & quo procedat, ignoratur. for the difference betwixt the two Languages is not so great, but that we may upon good reason believe they were one and the same anciently; nor so great a Dissonancy at this day between them, but that the footsteps of a former union, may easily be observed; and * Mr. Selden observes a little of the use in the Defusedness of the ancient Language, saying; Corwallensea in Anglia, linguâ semper usi sunt Cambro-britannicâ, saltem velut Dialecto variatâ, uti etiam Aremorici in Galliis, Manniae item Insulae incolae Hibernicâ, unde tamen nemo est hominum qui velit sequi aut hanc Angliae Regibus, quâ Hiberniae sive Domini sive Reges fuerint, parere, aut illos ex Cambro-Britannici principatû jure aliq● principibus suis subjacere. Marc Claus. lib. 2. cap. 19 the progress of Languages is a thing very well worth the observat on. For by sundry, discourses with several intelligent persons, concerned in the Languages, and somewhat upon my own Observation, I can make it out, that if one of Base Britanny, meets a Cornish-man, that speaks the Cornish, they with small difficulty will each understand the other; the very Denomination of that Country being British, (for Armorica is derived from At Mor, which hath no signification but from the Welsh, and is upon or near the Sea, with which the situation also agrees) let a Cornish-man pass into Wales, he will understand the Welsh, and be understood of them. A Welshman meeting with an Inhabitant of the Isle of Man, that speaks the Manc-language, both of them will understand one the others meaning. An Inhabitant of this Isle (a Menavian) meets in Ireland among the Irish an agreeable Intelligence; and the Irish with great facility communicate with the High-land Scots in their several Dialects intelligibly. So that animadverting this Progression, as I have linked them, much may be inferred of Originals, Customs and Manners; among all of them having found the footsteps 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 show 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. Gavelkynd) there is not any Partition, is plain, both by what Mr. S. apprehends of it, thinking it to be derived from Rent, and to signify 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 42d. page, where he saith, Our next enquiry shall be whether Partition own itself to Gavelkind; either ex vi Termini or ratione rei? and gives his opinion with me, that ex vi Termini, partition doth not owe itself to Gavelkynd; and in some considerable cases, it is not enforced in the very use of it; for, in case a Father Dies possessed or seized of such partible Gavel-kynd-land, and leaves but one Son behind him, this Land is not then to be parted; which if it had been, ex vi Termini, it must have either ceased its use and force, or else there must have been found out some other near Relations with whom the sole Heir had been constrained to a Partition; the like whereof I could never read or hear was ever done. This was very well understood by Littleton, Lib. 3. Sect. 265. and explained by Sir Edward Coke, in that Chapter of Parceners per le Custom; 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, etc. And out of Bracton citeth this; Et sunt participes, quasi partem capientes, etc. ratione ipsius rei quae partibilis est; & non ratione personarum, quae non sunt quasi unus haeres & unum corpus, sed diversi haeredes, ubi tenementum partibile est inter plures cohaeredes petentes, qui descendunt de eodem stipite, semper solent dividi ab antiquo; for such Lands belonging to a Family, relate only to the Males, (in case of their existency); but if not, then to the Females. So also we have it observed by Glanvil, who denominates such as hold by this Tenure of Partition, Liberi Sokemanni, of whom he writeth; quibus mortuis, dividetur hereditas inter omnes filios; si fuerit Socagium, & id antiquitùs divisum; salvo tamen capitali messuagio primogenito pro dignitate Aesneciae suae; ita tamen quod in aliis rebus satisfaciet aliis ad valentiam. Si vero non fuerit antiquitùs divisum, tunc primogenitus secundùm Quorundam consuetudinem totam haereditatem obtinebit; secundùm autem quorundam consuetudinem, postnatus filius, heres est. I shall not enforce any thing from the Custom of preference of Primogeniture to Socage Lands, which were such as were non antiquitùs divisae, and those to be but secundùm consuetudinem Quorundam; which expression signifies a diminution, both in respect of Age and Community; nor of the Tenure which we call Burgh-English; which, whether brought in by the Saxons, (because of its name) I cannot tell: But concerning that which Glanvil setteth down as the most common Custom of the Kingdom, and most ancient, (as in his time it was received to be) and the intent of his Paragraph; which is, to Counter-distinguish the Tenure of this partible Land, from the Tenors of the Military fees, where the eldest Son in England still Inherits; of which sort there were not so many, when William the Conqueror took his Survey of the Kingdom, as after times did bring them unto; when that no Land was permitted to be held free from the Military tenure; not excepting the very Lands of the Church: But he being so plain, I shall not trouble you with a Comment; and return to the subject of this Chapter, which is, that Partition ex vi Termini doth not owe itself to Gavelkind; no, rather Gavel-kind to Partition; for I believe, when at first this Partition was used and received into a common Custom, those Users were enforced and obliged to find and invent a word by which their Custom might be intelligibly expressed, rather than to make a Custom to the signification of the word; but where the Custom of Dividing under the Title and Term of Gavel-kind was once received and settled with its appurtenances, there it infers Partition, and passeth as a common Law; not only in Kent, but in Christendom 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, * Pag. 374. Sicut de Gavelkynd, 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 Tenure, than the ratio terrae, should have relation to the nature of the Soil; for sure it cannot have relation to the distance or difference by the Celestial degrees: I cannot (I confess) apprehend the nicety of the distinction; and therefore pass to that which Mr. * Pag. 44. S. saith; that that property alone of the Lands being Gavelkynd, or so called, doth not suffice to render it Partible; if the question be so far obtained and granted, 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 Gavelkynd Land, that is not subjected to Rent; how will it then answer the Tenors derivation and signification? whereas in this exposition of the ●erm that I have given, (viz. Tenura progenici aut familias) Division significantly resides in its name and nature; I am sure the inference is so strong, that where there is Gavelkynd, there is Partition: and it may as properly be said, that the Tenure of Burgh-English, by the Value of its Name, doth not import, the youngest Son should Inherit the Land; as that Gavelkind doth not infer a regular participation upon Partition by the Parceners, which to strengthen it the more, is now become an ancient Custom; and this Sir * Lib. 2. Sect. 165. 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 without 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 Gavelkynd vel ALIBI, ubi terra est partibilis, etc. 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 Kingdom, 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. Asss. in qua Johs Buxkyn chr. profert scriptum relaxationis Johis de Pickering, & Willielmi fratris ejus Gallicè factum de medietat. vi. Mess. etc. & iiii. Tercellorum in Clipesby, Billokby, etc. In hoc placito patet quod Tenementa quae sunt de feodo de Pickering sunt partibilia inter Masculos; So that turn into what part of the Kingdom 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 misapprehension; 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 Manors and Signories, 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 nature of Gavel-kind of common right; and yet that in divers parts of England, within divers Manors and Signories the like Custom is in force: if the Salvo lies in this word, viz. of common right. I would willingly be satisfied, whether Lands in Gavel-kind do not pass, both according to common Right as well as common Law: Certain it is, that the common Law of that County, Hundred or Seignory, where Gavelkynd 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 partition 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 showed; that it is in South-wales as well as North-wales; and in other places as well as there. But then he proceeds to question, thus; What custom I pray? if you inquire of Littleton, he will tell you it is the Custom of Gavelkind partition; or inquire 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 custom est en autres Lieux Dengleterr. & auxy tiel custom est en North-gales, etc. 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, etc. 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 ancient Britons, 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 Statute. 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 shown, it was a Law or a Custom among the Britain's: But Sir Edward concludes, that Gavelkynd Custom in Ireland is one mark of the ancient Britons; Let not therefore our Professors 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 Hibernian Laws, makes me think that anciently they were Governed by one and the same Law; which if granted, then have we one Argument more to reinforce 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 Confessor, and as Edward the Confessor did the same Laws to his Grandfather Edgar, etc.) I think it not amifs to give the Reader some account thereof: They are mentioned by all * Lancarvan, Lloyd, Dr. Powel. 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 acknowledged the great Legislator of the Britain's; of whom, take what Balaeus writes, placing him in his Catalogue of Writers, with this Encomiasticon: Dunvallo Molmutius, Clotenis Cornubiensium Ducis filius, sapientia & pulchritudine proavos omnes longe exuperans, devictis Loegriae, Cambriae & Albaniae Tyrannis, solus apud Brytannos Tertius & Vicesimus Rex imperabat, etc. 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 latinum sermonem transtulit, & Alphredus Magnus in Saxonicum Fatum obivit postquam 40 annis magnificè regnavit, ad Templum Concordiae, quod condiderat ●renovanti sepultus, etc. ante servatorem natum, 430. King Howel (Surnamed dda, i. e.) the good, who flourished in the year of Christ 942. perceiving his Britain's under a kind of constraint; being penned up in the two western extremities of the Island; is said to have made new Laws, and fitted the old to the exigence and behoof of those times; and Dr. Powel in his Additaments to the Cambrian History, saith, That he did reform the Laws and Customs of Wales: than it seems that these Laws, were Laws; and these Customs, were Customs before the Reign of Howel; who only took upon him Reformation, not alteration or innovation: and the Doctor further discoursing 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 Customs of Wales, and to gather out of those, such as were meet for the Government of the Country; who fully did discharge their Commission; thus: in retaining those that were wholesome and profitable: expounding the ambiguous and doubtful; and abrogating the superfluous and hurtful. By what hath been here said it seems these Laws are some what improperly 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 retaining, expounding and abrogating; no mention at all of introducing any new Laws or Customs; this considered, with the turmoyls the Britain's had from the time of Julius Caesar to the Reign of Howel-dha; and observing their unsettled fluctuating conditions from time to time through all those Ages, may afford us sufficient reason to subjoin; that these in probability were those ancient constitutions, Laws and Customs, which without any difficulty may be allowed to be the procedure of the legislature of Mulmutius Dunwall. Other M S. Copies thereof I understand to be in the Custody of some Welsh Gentlemen; one whereof is in Welsh and Latin 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 only partition, but also the very manner of it, prescribed so anciently, and it is this: Cumfratres inter se hereditatem dividant; Ex legibus Howeli boni. Tydyn & edificia potris & octo acre terre cedent juniori, cum calderio, Securi, & cultro sui patris; hec tria non potest pater nisi Juniori dare; & si in vadimonia sint data, possunt redimi & nunquam amitti: Tydyn est domus. quilibet frater debet Tydyn &; octo acras: Junior debet dividere hereditatem inter fratres; 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 disagree) 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, etc. which are like the caldron, hatchet 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 setting out of eight acres with the Father's 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 different usages in the same Tenure of partition, and no wonder 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 refers to the time when the Statute was enacted: yet this notwithstanding Mr. S. would not have it Gavelkynd custom taken in its true, plenary and complete 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 complete acception of the custom that is taken and received in other places extra Cantium, having all those qualities and conditions that are comprehended 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 Villeinage to the Tenure of Gavel-kind. Mr. S. having several times met with Deeds that express the change of Lands held in Villeinage into Gavelkind; I think it not amiss to show of what consequence this exchange was. He, in his 58th. 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 Villeinage Tenors into others, more free, and less servile, is frequently to be found; but by that to lay any force upon the in erpretation or Etymologye of the word; or that upon the account of those citations brought in by Mr. S. it should signify Genus gabli aut redditus; because there was a tent fixed upon the change: I cannot yield unto it. To what he observes in his 59th. page, out of the Customal of Eastry Manor 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 Villeinage, this change, I say, was very considerable, and did well deserve, a sum of money in Gersum to the Lord; for that these Cotarii before this change, being by Tenure Villeins, and so consequently their Lands not descendable to their Children; their persons, not scarce their own; their acquisitions got by the sweat of their brows, at the will of the Lord, by this change these cotarii being invested into a propriety of this Land; and this Land made to descend as in Gavelkind; the mutation was very advantageous 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 messuagium, tres acras, quae solent esse cotar, modo reddit XL. den. de Gablo. These Cotarii had their Lands changed into Gavel-kend & Medleferm tenet unum messuagium, que solent esse Cotarii; modo reddit XL. den. de Gablo. They are changed into the Tenure of Gavelkind; and pay rend XL. den. de Gablo. this last, notwithstanding the propinquity of sound cannot have any relation to Gavel-kende; for than it had been a Tautology; but Gavel-kind and Gablum are set forth into different and distinct uses. The Tenure was changed into Gavel-kind, with the reservation of an annual Rent of XL. den. de Gablo; that is to say, upon the account of that imposition made at the agreement; by way of acknowledgement for creating this Land, Gavel-kind-land. The last hath relation to the rent reserved and the acknowledgement, the other to the manner of holding in relation to the change, and to the future descent. So likewise is that other citation out of the Archbishop's accompt-roll; in the year 1230. where it is thus entered, & d● XIIIs. IVd. the fine Cotariorum, ut Coteriae suae ponerentur adredditum; that is to say, that their Cottages may be fixed and certain in relation to their Gables or Reat, for which they paid a fine; whereas the first citation had relation both to Tenure and Rent. I shall now take my progress northward, and inform you, that there is also as the remainder of the ancient planters CHAP. XVII. Gavel-kind in Scotland; when the English tongue and the Customs were first planted in Scotland. MR. S. in his 53d. page, reports That the Tenure of Gavelkynd in other Countries besides Kent, is a custom indeed; but yet like to that in Scottish Socage Land; to which he produceth as a Test. Skenaeus. I find by Mr. S. that Gavel-kind shall be permitted in other countries' to be like unto that in Wales, like that in Ireland, like to Scottish Socage-land, rather than like to itself or to the same. * Yet Mr. John Skene saith in his Chapter, de linea recta descendentium thus, Give man deceasis, & leaviss behind him maa Sons nor ane, either he is Succomaanus, & haldiss not his Lands be service of Ward; and then his heritage is divided amangst all his Sons, or he is miles— lafoy the quhilk case, the eldest Son succeedis in the ha● Lands; quhilk heretably pertained to his father, etc. What the manner of the Scottish-Socageland is, or hath been anciently in Scotland, I am not certain; but of this I am assured, that there are seucral Manors heretofore belonging to certain Bishops of Scotland, where there is the same usage of partition of Lands as in Gavel-kind; which shows that those Lands belonging in those ancient times to the Church did not feel the severity of the War; but enjoyed this Custom and Tenure from their most ancient proprietors. Which is also plainly to be perceived by the retention of this Tenure (yet in force) amongst the ancient Britain's of the Isles; who by reason of their site were most free from the fury of the War. I call them Britain's (though now they are called High-landers) because upon trial of words and denominations of places, I find that Language and the British so coherent, 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 settled in the Easternmost parts thereof, remove their increase Westward and Northward, till such time as by this means both Cornwall and the Orcadeses were also planted; and then the Saxons in process of time enforced the Britain's to leave these their ancient Seats in the Eastern parts of the Isle; (yet not all (as I shown before) who retired by their force either into Cornwall, Wales, the Scottish Highlands, or Base Britainy in France, where they in their offspring do occupy these places, (with Ireland also) unto this day. There lies a large Island named Lewis, belonging to the Earl of Seaforth, between the Hebrides and the Orcades; which wholly holds by this Tenure of partition; by what name there called, I could not understand, for their Language there, is Irish-British; but if according to Mr. S. the name were Saxon in its original, what hinders, but that all Countries 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) infer; that because it is not so universally known in those places where the Saxon tongue is spoken, it administers more reason to believe and conceive it should have another origine; than to be so easily lost among the very users of the Language; and in no such place to be found (as Mr. S. would have us believe) but within the Septs of Kent. The time of planting the Saxon Customs in Scotland is difficult to be known; but if the planting the Language argues any probability of the planting of Customs; then we had best make the time of the planting the Saxon tongue the matter of our enquiry; thence being able probably to deduce, that at that time the Customs were received: for it was far otherwise in the Saxon settlement in Scotland than in England. For here they planted and settled with the Britain's; there they drove out the Picts totally, and seated themselves in their places; upon which account it was, that they not having any persons with whom they might co-inhabit, and so participate of their Customs, were upon their settlement constrained to create new Customs, or else to revive their own, for their best security. I think them much in an error who affirm that the Identity of Language betwixt us and Scotland, was occasioned from the multitude of the Profugi, or such as for the security of their persons fled under the protection of Malcolm Canmoir King of Scotland in the time of William the Conqueror; certainly, considering the old animosities betwixt the two Nations, it would have ill become the courtesy (at least the policy) of the Scotch King, to have received so many English guests, a by their number or multitude might have been able to plant their Language among his people, so different from their own. I must confess, that notwithstanding this national enmity, some he did receive, out of whom, he chose his wife, Margaret Sister to Edgar Etheling; and bestowed Lands upon divers of them. A Catalogue of several of them the Bishop of Rosse hath given to us by their Surnames, of whom he reckons the families of Calder, Lokert, Gordon, Seaton, Lauder, Waun, Meldron, Shaw, Lermount, Libertoun, Straquhin, Rettraye, Dundas, Cockeburne, Myrtom, Inglis, lesly, cargil, Cuilra, Mar, Menzeis, Abercrumy, Lindsay, Vaus, Ramsay, Loval, Torris, Preston, Sandelandis, Bissat, Foullis, Wardlou, Maxuell, etc. These are the most and principallest in that account, from whom it cannot be rationally expected that that Kingdom should receive a mutation of their * 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 Scotts & Anglis, tam in Scotia, quam in Lodoneio constitutis, gave to St. Cuthbert and his Mo●ks in Durh●m, the Laods of Coldingham, etc. Language, and therefore I shall fix it upon a greater-probability. Speed saith, that Hengist sent for Octa and Ebissa two principal Captains (among the Saxons in Germany) who being embarked in forty Pinnaces, sailed about the Picts Coasts, wasting the Isles of Orcades, and got many Countries beyond the Trith; Yet this was not a settlement, for that it is not probable they fixed here at this time; again they had much War with the Saxons, when the Kingdom 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 Ambassador for Mary Queen of Scots in the Court of Queen Elizabeth in England,) whose book was Printed at Rome in the year of our Lord 1578. is that, out of which I shall collect this ensuing Discourse. Kenneth the 69th. King of Scots, who flourished about the year of Christ 840. defeated the Picts near Storling; and improving his Victory into Northumberland, prosecuted them with Fire and Sword so closely, that (you shall have it in his own words) omnes incolas promiscuè nulla sexus habita ratione obtruncat, & Picticum nomen propè extinxit: Qui autem evasere, in Daniam, Norvegiamuè, alii in Northumbriam se abdiderant; and presently after concludes; Sic Pictorum Gens post Centesimum supra Millesimum ex quo in Albionem venerat annum, tantum non deleta est; here we find the Pictish Nation in Scotland almost expired, who had very long before this been intruders into this part of the Island; and during this King's life, those Lands upon which they had lived were re-occupied by the old Irish or British inhabitants of the Hills, who were constrained to live in those mountains and fastnesses during the time the Picts kept possession of the Lowlands; 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 Custom of Scotland then was, If the Sons of the deceased King were * Minoris aetatis. under age, they elected the most aged, and greatest experienced of that King's 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 Relic and a Trophy in the Abbey of Westminster) Donald proved very offeminate and vicious, and puffed up with his felicity, so over-flowed with vices, that he by them gave the opportunity and occasion of the ruin of that, which Kenneth by his valour had achieved; the Picts who all this while lay close in Northumberland, understanding his carelessness and looseness, istam suae libertatis asserendae occasionem arripientes (saith the Bishop) cum Auxiliaribus Saxonum & Britannorum in Scotiam irrumpunt. Donaldus, collecto exercitu, hostibus prope Jedburgum occurrit: initoque prelio, illos in fugam compulit Rex, nostrique milites victoria infolentes, ●cctem sequentem, sine excubiis, supi●t; sine ordine, sparsi; sine disciplina, negligentes; sine timore, stulti; in luxu & compotationibus consumunt. Hostis de hac re certio● factus, & ad omnem occasionem intentus, illos media nocte somno vinoque sepul●os, opprimit: interfectisque circiter viginti millibus ipsum Donaldum cum nobilibus domum captivum ducit. Denaldus, ut se in libertatem assererel, omnem regionem inter Strivelingum & Cludam amnem inte jectam, BRITANNIS & SAXONIBUS dedidit; annuaeque pecuniae, tributi nomine pendendae conditione seize astring it. Here I observe, that this los● that Donald received gave opportunity to the Britain's and Saxons their planting themselves in the Lowlands; the Scots being reforced into the Highlands. But concerning the limits and bounds betwixt these and the Scots, he gives us a particular account; and shows in what parts the one inhabited, and in what part the others, and informs us that these Angli-Saxones in hujus pugnae memoriam, Strivelingi Arcem prius dirutam iterum extruxerunt: Fortheam quoque ponte munierunt; quopostea in loco crucem, tanquam victoriae signum sustulerunt; cui two versus aetatem illam satis redolentes affabrè insculpti sunt, Ang los à Stotis separat crux ista remote is, Arma hic stant Brutti, stant Scoti sub hac cruce tuti. Interea Picti, qui Scoticae cladis Auctores fuerant, tota Albione à Saxonibus praecipites ejiciuntur; and to this Buchanan adds; that durae conditiones praepositae, quas tamen praesens rerum status tolerabiles faciebat vidert: ut omni agro qui inter vallum Severi esset, Scoti cederent; ut limites essent, infra Sterlinum, Fortha; infra Britannodunum, Glotta: inter duos amnes, vallum Severi. ANGLI enim & britons agros relictos inter se partiti sunt, Glotta eye diriment. The Picts for some time, after they had in vain from their Assistants expected Restauration, and seeing themselves deluded, ad Cimbros & Scandianos, (id est) ut nunc loquimur, in Daniam & Norvegiam transmiserunt. This * Severus (saith Bedc) à caeteris indomitis gentibus non muro (ut quidam estimant●) said vallot distinguendam putavit & Hit begyrde & gefaestnade 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. V●llum Severi was not that Wall which reached from Carlisle to Tinmouth; But that, the Vestigia's whereof are to be seen, ab Abircorno, per Glasgoensem agrum ad Cl●dae fluvii ostia, ubi nunc castrum 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 signify, the Hill or Memorial of peace; about which are still to be seen above twenty Tumuli or Lowes. (Dun indeed in our ancient Language signifies a Hill, by which name the Inhabitants in and about Dunkirk call the adjoining Hills; and the name of the Town from its situation among those very Hills takes its Denomination) But that noted remain is thought to be a Temple Dedicated to the Deus Terminus, Built by the Romans at their Non plus ultra. These are those parts of Scotland, inhabited by the Saxons and Britain's; distinguished from the ancient Scots (now called High-landers from their site among the Hills) by the name of Low-landers and Saxons; who settled 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 Broils. These achievements 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 ancient one of the original Planters, the finding of it in these Corners and Angles, in these remote Islands, and in these privileged Lands of the Bishops, is the greatest argument that I can fancy or imagine. Before I conclude, I shall speak a little to some other particulars, and first of CHAP. XVIII. Villeinage; the meaning of it, the antiquity thereof. Of the ancient words, Clown, Pagan, Knave. Of Surnames; of Soc and Sac. MR. S. In his third proposition (in his 61. and 62. pages) taking it for granted, that the Term Gavel-kind is of a Saxon Derivation and Parentage, fixeth its entrance into our Isle with the coming in of the Saxons; concerning which I have formerly Discoursed, and therefore in this place shall pass it by: Only take notice, that he deservedly. Censures, and Confutes such as have laboured to fix its introduction among us, by the coming of the Normans; of which number Mr. Selden hath happened to be one; as in his illustrations upon Mr. Draitons' Polyolbion; who, out of Spot, (St. Augustine's Chronicler) relates the Story of the Kentish-men, with their green Boughs, treating with the Norman Conqueror, with which Story many persons have been well pleased; and yet by what I understand of it, it shows rather a procurement of a Confirmation of this Custom among the rest, than a Creation thereof at that time. But he having sufficiently evicted the improbability of that Story, passeth in his 72. and 73. pages, to show Spots mistake in averring there were no Villains in Kent; which he confutes by a Citation of an ancient 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 Villeinage 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 Villeinage, but their Duties and ustom-services belonging to a Village for the Lord's use? So that the yellow of the word Villain, is only one that inhabits or lives in a Village. The like is of Colonus (a Clown) which is no more than one that Tills then Land so also of Paganus, called in the Saxon Tongue * 18. Leg. Regis Inae. 〈…〉 from whence came their 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 signify one that is of an Ethnical Religion. But to Discouse of them in order as they lie before us; Villain is a Villager, of whom, Minshew upon the word saith, Galli suos rusticos & villicos propriè dicunt villains; villanus in vit 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 Mirroir speaks them thus; Cultivers de fief demorants en villages uplande; car de vill est dit villeine; but (as I said in another place) there is to be found almost in every Leaf in Domesd y-book, not only an account of what Villains were in each Manor at the time of that Survey; but also how many there were in the time of Edward the Confessor; and as Mr. S. hath observed, there is a name or two found in that Record, that hath much more of Servility than Villeinage 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 ancient time, which were Bondmen, or little better than Slaves. Mr. S. is of opinion, that the word or term Villanus was not in use before the Norman Conquest; for in his 126th. page he saith, as afore-time the Saxons had their Ceorles, Gebures, Polcmen, etc. so afterwards the Normans their Villani, Bordmanni, Cotarii, etc. certainly, these three names the Normans found here: First for the Bordmanni, if that name as well as Cotarii be not Saxon, I know not what is; for the Bordmanni were such as lived upon the Bordlands, which were (according to Bracton * Bract. Lib. 4. Tract. 3. cap. 9 num. 5. ) the Demesnes that Lords kept in their hands, to the maintenance of their Board or Table; and Cotarii were Cottagers, such as dwelled in a Cottage, * Anno 4. Ed. 1. Stat. 1. (that is to say) a House without Land belonging to it, and comes from the Saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which is the same with Tugurium and Tectum, in Latin, a ●egendo; so as this is in signification a Cover or Shelter; because those small Habitations were only made to cover them from the Sun and Weather. I am not ignorant of that great mistake, the whole Current of Writers have run into, those whose Works have been published within these last 300 years; where they generally endeavour to load all the indignities of Tenors of Servility and Vassalage upon this Norman change. I deny not but that some were at that time introduced, especially many Jocular Tenors, which were the effects of private contracts betwixt the Lord and his Tenants; and not of any general concernment; but hence I cannot yield to conclude, that all Tenors of Servility were of their introduction. Mr. S. continues in his opinion in the 104th. page, where he writes; That Fee-simple, fee-tail, Fee-farm, Grand & petit Serjeanty, Escuage, Burgages, Villeinage, etc. being all of the Norman plantation; and we by them (saith he) at least since their Conquest of us brought acquainted with them, etc. perhaps those compounds might be the effect of the consultations of some of the Kings of the Norman race; but for the word (Fee) Minshew discourseth very well upon it, for (saith he) our ancient Lawyers, either not observed from whence the word grew, or at least not sufficiently expressed their knowledge, what it signified among them from whom they took it. Feudum, (whence the word Fief or Fee cometh) signifieth in the Germane Language, * In like manner doth Mr. S. labour to deduce it from a Saxon original, p. 107. Beneficium cujus nomine opera quaedam gratiae testificandae causa, debentur; and our of Hotoman (saith) that by this name go all Lands and Tenements that are held by any acknowledgement of any superiority to any higher Lord; so is all the Land in England (except the Crown land) held, that is of Feudum or Fee: for he that can say most for his Estute, sayeth but this; Seisitus inde in Dominico meo ut de seudo, which is, I am seized 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-tail as distinguished was not an introduction of the Normans, for that Minshew observes it to have its Original from the Statute of Westm. 2. c. 1. which was made Anno 13. Edw. 1. The word Feud is used familiarly to this day in the Higher and lower Germanyes. For what concerus grand & petit Serjeanty, I believe the words to be French, and so introduced by the Normans, to express those Services that were due to the Kings of England before the Conquest; such Services being reserved by the Saxon Kings. The service of Escuage was before the Norman Conquest, though not known by that name; the like was of Burgages, 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 Villeinage, Mr. S. doth cite out of Mr. Lambards' Perambulation of Kent in Mepham, under the Term of Agenes-land, this, as a very ancient passage, which had been enough to have convinced me, that there had been Villains before the Norman Conquest; and it is this; Et si Villanus ita crevisset sua probitate, quod pleniter haberet quinque hidas de suo proprio alledio, etc. and in his 114. page citeth an old Version of the 19 and 21. of King Ina's Laws of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which is made thereby to signify Villanus or Colonus; and it is convicted by Domesdey Book Survey in Sudsexe thus; Radulfus tenet de Willielmo (viz. de Warene) BRISTELMESTUNE. Brictric tenuit de dono Godwini Comitis T. R. E. & modo se defendit pro V. hid. & dim. Tran est III car. In dnino est dimid. car. & XVIII villain. & IX Bordarii cum III car. & uno servo. De gablo IV milia alletium. In eadem villa tenet Widardus de Willo VI hid. & unam Vs. & pro●tanto se defendit. Tres Aloarn tenuerunt de Rege Edwardo & potuerunt ire quolibet. Unus ex eis habuit Aulam & Villani tenuerunt partes aliorum Duorum. Here is an express of a Servus, and also of the Villani, who held this Land in the time of Edward the Confessor. Besides this, I could allege many more; but Sir Edward Coke upon Littleton, saith, that Villani in doomsday are not there taken for Bondmen; but had their name de Villis, because they had Ferms; and there did works of Husbandry for the Lord; and they were ever before named Bordarii, (which is contrary to Mr. S. in what I cited before of him concerning Bordmanni, which I believe is one and the same thing with Bordarii) and such as are Bondmen are called Servi. Thus Sir Edward Coke. But I believe the Normans found these Villains here, even by their name, by which I believe they were of a very ancient standing; for that I find them known by the Britain's by that Title, as they are often mentioned in the Laws of Howel-dha; in a Law which before in this 〈◊〉 I mentioned, is notice taken of a King's Villain, and of a Nobleman's Villain; and then another that gives a right to the Foster-childrens, of dividing Land with the Children of the Villain; 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 Latin as I found it,) Captivus si movetus in Swyd de XXIV. officialibus: Swyd is dignitas, dignity; so that the sense of it is this; if the Prince bestows upon a Caprive, the dignity of being one of the twenty four Chief officers of his Court, it is an advancement peculiar; or he becomes by it a Gentleman. Secundus, filius villani si sit clericus (our common Law doth differ from the Civil Law, which saith, Partus sequitur ventrem, where as the Common Law hath it, partus sequitur Patrem) but here provision is made that the Son of a villain being a Clergy man should become a Gentleman; which is somewhat explained by the next. Tertius: Homo ex captiva villa, si villa habeat à Domino patrie licentiam Ecclesiam aedificare, & in Cimiterio ejus corpora sepeliri; tunc villa 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 Mr. Lambard shows 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, etc. which shows the cohaerence of the Saxon Customs with the British; and thus by Judge Dodaridge (out of him) it is rendered in his Treatise of Barons, pag. 152. It was sometimes in the English Laws, that the people and Laws were in reputation, than were the wisest of the people, worship-worthy in his degree, Earl and Chorle, Theyne and undertheyne; and if a Chorle so thrived, that he had fully five Hides of Land of his own, a Church, and a Kitchen, a Bellhouse and a Gate, a Seat, a several Office in the King's Hall; then was he from thenceforth the Theines right-worthy. And if a Theyn so thrived, that he served the King on his message, on his journey-ward, in his Household, if he than had a Theyn, which him followed, who to the King's experience had five Hides, and in the King's 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, than 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 thenceforth of Dignity and Peace, so much worthy as thereunto 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. Optimatis LX. den. Villani Regis XXX. den. Villani Optimatis XXIV. den. hoc de illis est intelligendum qui Piben habent, de aliis tercia pars pretii cadit. For the understanding 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 Villains before the conquest, which this Law shows to the contrary; in giving you an account of such even at this time of the Collection of these Laws; Kingsvilleins 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 Nobleman might bestow without her Husband's 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 long, quod vox ejus possit audiri stans in limine domûs sue dum clamat propter illud. All these Laws are of several concernments; but do all expressly prove Villeinage 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 ancient British usage. For the word Clown, thought to be derived from the Latin 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 Latin, 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 Original of the Name, which carries in my Judgement no great store of probability with it; but as it is I will transcribe it; under the word Pagan (he saith) A Judaeis deflux●ss●●mos hic & appellatio rei videtur; cum enim inter Judaeos H●erosolyma tantum civitas erat, nullisque nisi Judaeis ad illam dabatur accessus; reliqur owns Hebraeis erant Pagani, in pagis, quasi extra cioitatem & populum 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 persuaded 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 services; as in the 52d and 64th. 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 disgrace, 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 Britain's, who called a Household servant, 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. M S. Obits. Eccles. Heref penes Authorem. Paul in our elder Translation is rendered the Knave of Jesus Christ, to express that which we now read the Servant of jesus Christ. In an old Obits 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 signification, 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 appears that they were not so curious of procuring excellent ones to transmit to their posterities; but accepted of any serious or jocular; some from shapes of body; others from qualities of the mind; some from Trades, Offices, etc. But I cannot let that pass without notice, which for a Surname I met with in the second volume of Domesdey, in the Survey of the Connty of Essex, being there Registered as one of the Trans Tenentes of that County, where it is thus Recorded; * The Land of Roger God save the Ladies, for the word Domina, saith judge Dodaridge in his Treatise of the Barons, pag. 151. signifies Ladies or Dames, so women after fourteen years of age were called Dominae; as also those which were anciently navigeal women, (in earnest that's a hard word) and by our English Poets, Dames, etc. sed vid. Seldeas' Titles of Honour, 1 part. fol. 53. Terra Rogeri Deus salvet Dominas. But I have done with the Tenure of Villeinage and the antiquity thereof; of the use and abuse of ancient denominations and appellations I shall only add one or two words; as a mite cast into Mr. S'. Treasury; which is by way of approbation of what he hath learnedly discoursed concerning Sok and Sak, evicting that common received opinion which makes it signify 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 selfsame 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 rendered, Leg. 24. 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 rendered de immunnitate Templi; so likewise in the Laws of King Edmund Hamsocn● or Hamsocnum is translated there immunitas domûs; the privileges which men take themselves to have, in their own houses; for that every man's 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 Rogeri 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, etc. Sac (Sacha vel Sacca) Minshew renders, to signify a Royalty or privilege touching plea or correction of Trespasses of men within a Manor; and saith, that he was informed that this word (Sac) in the Saxon Tongue, doth properly signify as much as (Causa with the Latins) Sake; whence we in English still retain that expression; for whose sake, etc. that is for whose cause; but in the Laws of Edward the Confessor they are both of them thus expounded. Sacha est quod si quilibet aliquem nominatim de aliquo calumniatus fuerit; ☞ & ille negaverit, forisfactura probationis vel negationis (si evenerit) sua erit. Soca est quod si aliquis quaerit aliquid in terrasua, ☞ etiam furtum, sua est justitia si inventum fuerit, an non. I shall also exhibit an Exposition of them both, out of a very ancient M S book, M S. Penes Autorem. in which are Registered several Donations to a Cathedral Church in England; where after the recital of a certain Charter granted by Edward the Confessor to them, Cum Saka & cum Sokna; there follows an Exposition of them both, in red Letters thus. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Equitur expositio illorum Terminorum Soka & Saka. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oka. hoc est Secta de hominibus in curia vestrasecundum consuetudinem regni. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aka. hoc est placitum & emenda de transgressionibus hominum in Curia vestra. The first is only the suit of Court due by the inhabitants of a Lordship or Manor, and Sac is the liberty of Holding Pleas and imposing Mulcts and forfeitures upon Transgressor's in that Court. Mr. S. hath learnedly discoursed this and the Erymologye thereof; and because not in controversy I will not therewith further trouble the Reader. I am now come to the end of this immethodical discourse, and desire his pardon, and acceptance of the intention for the thing done: for I could wish if this subject should prove pleasurable or delightful 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 irreverently done: some will think it too long; others perhaps too short; many to be needless; so perchance it may fall out that I may escape with the Country Priest, who coming to a village of Husbandmen, that had newly buried their Pastor; and overhearing them complaining that he had not by his Prayers procured 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 satisfy them in that point; which being obtained, several of them came to him, some for continuance of fair weather, others for some showers of rain to refresh their almost burnt-up grass; and every one according as they were engaged in their several necessities and requisites of Husbandry: He told them he could not at the same time obtain fair weather and rain, but if they would agree together, than 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 accept of it as either an Essay, or under any other Title, or denomination whatsoever, and I have done. Errata. Pag. 5. line 7. for Hellai r. helas. l. 24. vagerentur r. vagarentur. p. 22. l. 2. for Drympeck r. Drympenocke. p. 70. l. 25. read bis ceo●. p. 77. l. 25. read offensive. p. 78. l. 12. for Scrâp r. Sc●ûp. p. 94. lin. ult. for Countries r. Counties. p. 130. l. 20 for ʒip r. ʒif p. 157. l. 10. read The changes are very, &c Some literal escapes a judicious Reader may encounter, which are easily amended with his pen. In the Latin. Pag. 208. line 12. for Gemmetiam read Gemeticum. p. 209. l. 22 for Deurons read Deurous. BREVIS RELATIO DE WILLELMO, Nobilissimo Comite Normannorum, Quis fuit & unde Originem duxit, etc. Ab Authore Anonymo, Temp. Hen. Primi. LONDINI, Typis Guil. Wilson pro Johanne Starkey, apud quem prostant vaenales sub Signo Mitrae in Vico vulgo dicto Fleetstreet. 1663. Dignissimo Henrico Norwood uni Armigerorum pro corpore Caroli Secundi Regis Angliae, etc. & Amoenae Coloniae Virginianae Thesaurario, etc. Vir Amplissime, TUam erga me beneficentiam, licèt pensare nequeam, lubens tamen recognosco; in Magnis quippe voluisse Satis. Libellum hunc Nomini Tuo mihi Honorato perinde & charo inscribere ausim. Inter Quisquilias justò diutiùs Blattis & Tincis damnatum, fortuitò inveniens; tandem emancipavi. Vetus hujus Anonymi Authoris M S. in Atchivis Bibliothecae publicae Oxoniensis (prece tamen CL. V.D. BARLOW) quatuor aut quinqae circiter ab hinc retro annos seposui; Quod patrocinio tuo simul ac luce jam primum gaudet: Nihil illi subtraxi, nihil illustrationis penò addidi, nihil deniquè praeter transcribendi cur●● mihime● arr●●o. Argumentum minimè vulgare continet, Genium mihi quamvis Monasticum videtur redolere; verbis enim nonnullis obsoletis, & Nugis (quamquam paucis) coinquinatum est: veru●●●men quia. Tractatui praecunti Taedam quasi praefert, comitem eidem & socium manumissione liberum reddidi. (irca medietatem Regni Henrici Filii Gulielmi Angliae Conquestoris, (uti suspicor) compositum & collectum erat; ut patet ex animadversionibus de captivi●ate Rodberti fratris ej●s, cum Comite Moritomi, è Normannia in Angliam ducti & incarcerati: sub fine enim hujus libelli de eis scriptum est: EOSQUE ADHUC in captione tenere decernit; & paulo inferiùs: HIC est autem status Angliae & Normanniae ADPRESENS: qu● autem posthaec in his Terris futura sint; Posteritas videbit. Insuper; ut Animi mei specimen, in hujusmodi venerandarum reliquiarum (Diù nimis temporum injuria neglectarum) à Tenebris vind catione, exhibeam; hoc pignus & Arrham libenter tradidi. Interim vale: ejusque votis fruere; cui nihil est antiquiùs quam ut vivere possit, Tui favoris studiosissimus Silas Taylorius. IV. ID '. Mart. MDCLXII. INCIPIT Quedam Brevis Relatio de WILLELMO Nobilissimo Comite NORMANNORUM; Quis fuit, & unde Originem duxit; & Quis erat— sibi Armis adquisivit. PATER hujus Willelmi fuit Rodbertus Dux Normannorum, vir omni probitate conspicuus; erga superbos feru●: sed erga pauperes largus atque Pius. Sed quamvis erga omnes pauperes misericors & pius, maximam vero compassionem semper habebat de his quos Elefantiosus morbus vexabat: ita ut ipsi Elefantiosi sepius eum frarrem vocarent ob nimiam pietatem quam de miseriis eorum habebat. Hic autem Rodbertus sic quidam dictus Dux Normannorum extitit in quinta Generatione ab illo Dano qui Rollo vocatus, Terram que modo vocatur Normannia armis cepit. Ab isto itaque Rodberto Comite viro tam nobili, tamque pio egenis, progenitus est iste Willelmus de quo loqui institui. Dilexit autem eum pater suus multum, partim quia hullum habebat filium nisi illum, partim quia secundum suam etatem idem filius suus multum erat strenuus atque decorus. Eodem vero tempore Rodbertus comes ment compunctus, fecit votum eundi in Jerusalem, & videre locum illum; ubi Dominus suus crucifixus fuit mortemque pro peccatoribus sustinuit. Paratis itaque omnibus que ad hujus itineris negotium pertinebant; antequam de Normannia recederet, congregari fecit Barones Normannie, eisque commendavit Willelmum filium suum ut nutrirent & custodirent illum, donec sciret & posset Terram tenere & regere: Eum enim heredem faciebat post se de terra Normannie, ut si casu aliquo ipse non red●● & filius suus Wills in paterna hereditate sine ulla contradictione succeder &. Dispositis ergo omnibus que illius vie necessitas poscebat, & commendato Willelmo ●ilio ●uo B●● onid●●s suis; quem heredem de Normannia fac●ebat, porrexit Jerusalem Comes Rodbertus●: sed cum inde rediret: in urbem que vocatur Nica diem clausit extremum; in quo loco honorifice sepultus est: & sicut poste● quidam retulerunt, ad sepulchrum ejus quedans signa virtutibus similia contigerunt. Libet vero memorie trad re quoddam signum bonitatis Rodberti Comitis quod vice quadam in ipsa via— his— qui cum illo ibant ostendit, ut ex hoc uno patenter cunctis manifestum sit, quam humiliter injurias que ei fiebant pro amore Dei pertulit. Quadam nanque die contigit eumque venire ad quendam locum ubi Musellas & Tributum debebat pro se & pro pauperibus qui in ejus comitatu erant, persolvere; Dum itaque ibi cum suis hominibus expectaret donec omnes pauperes quos secum ducebat transire fecisset; quidam de paganis qui eas Musellas accipiebat, i●atus contra eum arrepco fuste fortiter super dorsum percussit illum; homines vero illius videntes quid Rodberto Comiti paganus fecisset; mox illum voluerunt percutere, & percutiendo Dominum suum vindicare. Rodbertus vero Comes non parum letus de injuria quam pro Dei amore susceperat, compescuit fuos homines; eisque dixit: Nichil mali ei faciatis, quia per animam ventris mei magis sum letus de ista dorsata quam mihi dedit; quam si mihi magnam pecuniam dedisset. Ut ergo ad id unde digressus sum redeam; Barones Normannie ut audierunt Rodbertum Comitem esse defunctum, non parvas injurias Willelmo filio suo facere ceperunt. Willelmus tamen Juvenis non diffidens de adjutorio & misericordia Dei; sicut melins poterat secundum tempus quod tunc erat, se in omnibus habebat; ad ultimum vero postquam vidit, quia Normanni hereditatem suam ei auferre volebant, assumptis secum quibusdam Normannis qui ei fideles erant, contulit se ad Regem Francie. Sed quam citius potuit in Normanniam rediens, in loco qui dicitur Ualesdunaes contra Normannos illos qui eum exheredare volebant, pugnavit: quos & ibidem Dei auxilio fretus pugnando superavit. Quibus devictis & in fugam ire, in brevi post hec totam hereditatem suam quam ei auferre conati sunt ex integro recuperavit: Deinde aliquanto tempore decurso accepit in conjugio filiam Balduini Comitis de Flandria, nomine Mathildam, mulierem multum honestam & sapientem, ex qua plures filios & filias generavit. Quis vero facile referre possit toto illo tempore quo super Normannos Willelmus Comes dominium tenuit; quam strenuè, quam sapienter in omnibus se habuit; quos enim bonos & honestos videbat, cujuscunque ordinis essent non parum diligebat, quos autem criminosos & inhonestos esse audiebat à consortio suo semper fugabat. Eo itaque tempore dum Willelmus Comes sic strenuè & prudenter regnum suum gubernaret, atque undique per circuitum terram suam viriliter protegeret, contigit ut Heraldus filius Goduini de Anglia navigare vellet in Normanniam, sed in terram que vocatur Ponteium devenit; Quem Wido Comes ejusdem patrie cepit & in custodia tenuit, donec industria Willelmi sapientissimi Comitis Normannorum eum liberavit, quem liberatum & ante se adductum, idem Comes honorificè suscepit, & susceptum aliquanto tempore cum magno honore secum retinuit. Interim vero dum cum eo conversatus est; ei homagium & fidelitatem fecit Heraldus, & etiam sicut dicunt multi tria sacramenta super FILACTERIUM quod vocabant OCULUM BOVIS; quod ei fidem & promissionem quam ei faciebat, bene custodiret. Peracto itaque negotio propter quod Heraldus venerat in Normanniam; quam eitiùs potuit rediit in Angliam; post aliquantum vero temporis dum Edwardus Rex Anglorum in Natali Domini festivitatem coronae suae Lundoniae apud Westmonasterium ageret; contigit ut tactus gravissima infirmitate vitam presentem finiret. Dicunt autem quidam, quod tunc Heraldus quasi oblitus sacramentorum que Willelmo Comiti in Normannia fecerat antequam Rex Edwardus Obiret, ad eum venit; ●um rogavit ut ei coronam Regni Anglie concederet; Quo audito Rex Edwardus, non immemor quod Willelmo Comiti Normannorum cognato suo regnum Angliae jamdudum concessisset, respondit Heraldo hoc nullo modo se posse facere, quia inde Willielmum Comitem Normannorum Heredem fecerat. Veniens vero Rex Edwardus ad finem suum, diem clausit extremum. Adhuc autem erat corpus ejus super terram sicut illi postea retulerunt qui hoc se videre dixerunt, cum Heraldus quasi insanus, atque proponens quicquid Willielmo Comiti de Regno Anglie juraverat, videlicet quod ei fideliter illud post mortem Regis Edwardi servaret, consentientibus sibi Civibus Lundonie, multisque aliis insanie ejus faventibus; apud Scm Paulum in civitate Lundonie, contra omnem rectitudinem coronam Regni Anglie arripuit. Non longum vero tempus fuit, quod iste Rumor ad aures Willielmi Comitis Normannorum pervenit, quod cum audisset & pro certo didicisset, quod Heraldus in omnibus que juraverat ei perjurus effet, quam citius potuit Barones Normannie ad concilium convocari fecit; esque ostendit quomodo Heraldus coronam regni Anglie sibi impossuisset, de quo Rex Edwardus cognatus suus eum Heredem fecisset, & quomodo etiam idem Heraldus de sacramentis que sibi in Normannia fecerat ●ll● perjurus modo existeret. Normanni autem hoc audito, non parum irati de tanta contumel a, quam Heraldus Domino illorum & sibi fecisset, communiter ei consilium dederunt, ut de Heraldo perjuro suo se vindicare percuraret, coronamque illum injustè ademptam, si aliter non potuisset, per bellum saltem restitueret. Quo consilio suscepto, precepit ut quam citius possent, omnes Barones Normannie unusquisque secundum suam possibilitatem naves prepararent, quibus ipse & omnis militia quam secum ducturus esset in Angliam transvehi posset: Quas in valdè breviori spatio quam unquam sperari posset, preparatas adduci precepit ad Sctum Walericum in Summam que juxta illud fluit. Dispositis itaque omnibus que ad hujusmodi negotium pertinebant, eisdem navibus conscenfis, Anno ab incarnatione Domini Millesimo, Sexagesimo, Sexto, IIII to Kal. Octobris; cum magna alacritate anim● Willelmus Comes transiens in Angliam appulit Deo favente ad Castrum quod vocatur Pevenesel; sed non diutius ibi moratus, cum omni exercitu suo venit ad alium portum non longe ab isto situm; quem vocant Hastingas: ibique omnem suam militiam requiescere jussit. Inter●m vero dum ibi Comes Willielmus cum exercitu suo esset terramque Anglie ex illa parte invaderet, Nuncius ab Anglis ad Heraldum concitè missus est; qui eo tempore contra frat●em suum perexerat; qui in altera parte Anglie cum magna multitudine pugnatorum intraverat: volens Angliam super Heraldum fratrem suum conquirere & conquisitam possidere; Pugnans vero Haeraldus cum fratre suo, interfecit cum, & eos qui cum illo venerant. Non parum itaque exultans Heraldus de hac victoria, ignorabat quid in brevi ei eventurum erat: cum ergo audisset quod Willielmus Comes Normannorum cum exercitu in Angliam transisset, quam citius potuit Lundoniam venit: ibique loquens cum Anglis & Danis quos secum habebat, contemnens & pro nichilo ducens quicquid Willielmo Comiti in Normannia juraverat: jussit omnes suos homines citissimè preparari, ut Normannos cum Duce suo willielmo antequam de Anglia fugerent, invenire posset; putabat enim insania plenus, quod Normanni non auderent eum expectare, nec ad pugnam contra eum venire. Sed aliter contigit, & non solum Normannos invenit, sed pugnando contra Normannos expertus est, quod Normanni non propterea in Angliam transnavigassent, ut inde fugere vellent. Heraldus itaque cum omni exercitu suo exiens de Lundonia, pervenit usque ad locum qui nunc vocatur Bellum; antequam vero ad hoc Bellum pervenisset, fertur dixisse, quod nullam rem unquam amplius libentiùs fecisset, quam hoc, quod ad hoc Bellum veniebat. Ignorabat enim furore cecatus, quia verum esset quod Scriptura dicit: ante ruinam exaltatur cor; ante ruinam enim exaltatum est cor Heraldi insani: qui tam insipiens & vanus fuit, ut providere & sapienter intelligere non posset, quod omnipotentis Dei justicia superbos & vanos, nisi a maliciis suis resipiscant, semper hum liare & ad nichilum deducere solita sit. Postquam vero Comes Willielmus & Normanni pro certo intellexerunt quod Heraldus perjurus contra eos ad pugnam venire. & veniendo se auderet preparare, preparaver unt se, & ipsi ut melius potuorunt, ex toto corde invocantes Dominum; ut eis nunc ad●utor esset; nec eos propter peccata sua, in tante necessitatis articulo despiceret. Pervenientes itaque usque ad collem un●m, qui erat a parte Hastingarum contra illum collem in quo erat Heraldus & exercitus ejus; ibi ut erant armati, paulisper substiterunt intuentes Anglorum exercitum. Dignum est autem ut memorie litterisque tradatur unum verbum, quod Christianissimus Comes Willielmus cum lorica sua indueretur, dixisse fertur: cum enim ei quidam candem loricam suam porrigeret, ut ex ea se indueret, ex improviso ei illam inversam porrexit; quod ille animadvertens, vultu placido, quietoque animo, militibus qui in circuitu ejus erant, dixit: Si ego in sortem crederem; hodie amplius in Bellum non introirem: Sed ego nunquam sortibus credidi, neque Sortiligos amavi; in omni enim negotio, quodcunque agere debui, Creatori meo semper me commendavi. Hoc dicens, atque in Creatorem suum sicut semper facere solitus erat totam suam fiduciam ponens, induit se armis suis. Armatus itaque, & se & totum exercitum suum Domino commendans; cepit inquirere a quodam milite qui juxta eum erat, ubi Heraldum putaret esse: Respondit autem ille; quod putabat illum esse in illo spisso agmine, quod erat ante eos in montis summitate; nam sicut putabat Heraldi Standartrum ibi videbat: Tunc Willielmus Comes fertur dixisse, crede in Omnipotentis Dei misericordia, cujus judicia etsi sunt occulta, sunt tamen justa: qui hodie justitiam faciet mihi de Heraldo qui perjurus existens hodic contra me audet venire ad pugnam. Hec dicens; Equum super quem sedebat calcaribus urgens; super Anglos irruit: unumque ex illis percutiens interfecit. Non multo verò post quidam cuneus Normannorum fere usque ad mille equites ex altera parte Anglos invadentes, super illos cum horribili impetu currere ceperunt, quasi illos percutere volentes; sed dum illi usque ad illos pervenissent, quasi timerent eos, fugere se simulaverunt. Angli vero illi, putantes eos vere fugere, ceperunt post eos currere; volentes eos si possent interficere: quod videntes Normanni qui erant cautiores bello quam Angli, mox redierunt, atque inter illos & agmen unde se disjunxerant, se immiserunt; omnes illos mox interfecerunt, atque hoc modo Norhmanni & Angli invicem pugnare ceperunt; pugnantes itaque toto illodie fere usque ad vesperum Northmanni cum Anglis; tandem Angli victi fugerunt, et qui fugere non potuerunt, extincti●ibi remanserunt. Interfectus est autem in illa pugna Heraldus, & duo fratres ejus, & cum els maxima pars de nobilitate Anglorum. Facta autem est hec pugna, Pridie idus Octobris in eo loco ubi Willelmus Comes Northmannorum, postea vero Rex Anglorum Abbatiam construi precepit; ob memoriam hujus victorie; & absolutionem peccatorum omnium illorum qui ibi interlecti sunt. Victis vero Anglis, ad castra sua Willelmus comes rediit, maximas Omnipotenti Deo gratias reddit, qui ei per mifericordiam suam victoriam concessit de inimicis suis. Non diutius vero ibi commoratus, versus Lundoniam, principalem Civitatem Anglie cepit ire; & sicupsam terram Anglorum conquirere. Deinde ad eum paulatim ceperunt venire Angli plurimi, & cum eo pacem facere; In brevi itaque cum eo majori parte Anglorum pacificata, fidelitatem illorum suscepit; & quibusdam corum suas terras reddidit, quibusdam vero non reddidit; eo quod illis nondum se bene credidit. Tandem ad Nativitatem Domini Lundoniam convenientibus Erancis & Anglic, illisque omnibus concedentibus, co●●am totius Anglie, & Dominationem suscepit. Constitutus itaque sapienter & cum magna discretione Regnum quod acceperat, disponere cepit; atque in Ecclesiis Anglie in quibus pastores non erant, pastores secundum Dominum ponere curavit. Deinde post aliquantulum temporis Uxorem suam de Northmannia in Angliam venire fecit, at Reginam de Comitissa esse constituit; illaque jam REgina filium genuit, quem Henri●um voca●i fecit: Quapropter sicut postea multi dixe●●●, justumfuit ut ipse Rex Anglie post patrem suum fuisses, quide parte Rege & matre Regina genitus extitisser. Post hec autem Willie lmus Rex non immemor quam misericordiam de Regno Anglie sibi Dominus fecisset; cogitavit quia Dorbbernensem Ecclesiam in honorem Christi ab antiquo tempore constructam, que principatum & auctoritatem super omnes Ecclesias Anglie tenebat, fecundum voluntatem Dei disponere: Proinde non parum inde cogitans si in regno suo inveniret cui Dorobernenfem Ecclesiam utiliter committere posset; tandem invenit Lanfrancum Abbatem Cenobii Scin Stephani Cadomi, virum valde religiosum, & omni probitate consprcuum, & non solum de his que ad honestatem & ad Deum pertinent; sed etiam de his que secularia requirunt prudentem & cautum. Mittens itaque propter illum in Normanniam fecit eum voni●e in Angliam; eique consensu & consilio omnium Baronum suorum, omni●mque Episcoporum, & Abbatum, totiusque populi Anglie commisit ei Dorobernensem ecclesiam, us eam sicut melius sciret & posset secundum voluntatem Domini, & utilitatem plebis cujus curam suscipiebat, regeret. Quam utiliter vero ipsam Ecclesiam gubernavit quamdiu vixit; & quantum in ejus tempore ipsa Ecclesia est elevata; que per incuriam Antecessorum non parum erat vilis & abjecta, & fere ad magnam inopiam redacta, omnes qui tunc fuerunt, noverunt. Preter hec autem non est silentio pretereundum quod largus fuit & erga homines seculi & erga pauperes Christi, & quomodo ipse exemplo sue largitatis in Anglia, multos ad Elemosynam accendit: propter largitatem itaque animi ejus dicebantquidam, eum merito vocatum esse Lanfrancum; id est ferentem cor largum, co-quod largus & bo●us erga omnes homines fuit. De Rege vero Willielmo & Lanfranco Archiepiscopo dicebant homines qui tunc vivebant, quod tales duo simul in una terra non invenirentur quales essent Rex Willielmus & Lanfrancus suus Archiepiscopus. Sed ut jam de Lanfranco dimittam, & ad ea que de bona Rege Willielmo cepi, redeam: Rex Willielmus ut vir prudentissimus, Deumque valde amans, in omnibus que & secundum Deun & secundum seculum agere disponebat, divinum semper auxilum requirebar; omnesque quos bonos & religiosos intelligebat non parum semper diligebat, quos autem prauè agere vel turpiter vivere omnino destruebat, & nisi a Maliciis suis resipiscerent & honestatem diligerent, etiam de Regno suo expellebat. Sed quicquid fecisset de aliis malefactoribus, hereticos & quos exurgere videbat contra usum & auctoritatem scē Ecclefie omnino destruebat. Ejus enim tampore expulsa est de Northmannia, que quosdam ibi maculaverat clericos, Heresis Berengarii, conantis auferre veritatem corporis & sanguinis Domini. Sed quis posset referre vel scribere omnia bona que bonus Rex Wil●ielmus fecit, omnemque exaltationem sancte ecclesie, que quamdiu ille vixit, in regno ejus duravit? Quicquid vero fuisset in aliis regnis, in regno ejus pax semper fuit; nec erat ullus tam fortis vel potens, qui pacem quam in terra sua posuerat, auderet infringere: vel si infringere●, in ea remanere. Nulla enim alia redemptio de illo esse poterat, qui pacem vel Treviam Terre illius violasset, nisi ut exinde exiret. Quamdiu itaque vixit carus & amabilis omnibus bonis hominibus fuit. Vixit autem postquam coronam Regni Anglie suscepit viginti & uno anno, quibus expletis presentem vitam finivit in Norhmannia apud Rotomagum IIII to Idus Septemb. Antequam vero finiret, fecit heredem de Normannia Rodbertum filium suum. De Anglia autem Willielmum alterum filium suum; qui quam citius potuit in Angliam transiens; post concessionem patris, susceptus ab Anglis & Francis, Sacratus est Rex Anglie a Lanfranco Archiepiscopo Lundoniam apud Westmonasterium in Ecclesia Beati Petri Apostoli. Frlio autem suo Henrico dedit Rex Willielmus cum ad mortem venit, quinque mille libras de Anglicis denariis. Defunctus autem Rex Willielmus sicut ordinaverat, Cadomi translatus est; Sepultus ante majus Altare in Ecclesia beati Stephani Prothomartyris; quam ipse construxerat a fundamentis. Fuit autem post hec non parva discordia inter Rodbertum Comitem, & Willielmum fratrem suum Regem Anglie. Tunc Henricus remansit in Norhmannia cum Rodberta fratre suo qui dedit ei quandam terram in Norhman ia, sed non ●iutius inde gaudium habuit. Non parvo post tempore, inventis quibusdam vilibus occasionibus ei illam abstulit. Post hec autem aliquanto tempore transacto; concordiam ad invicem fecerunt Willielmus secundus Rex Anglie & Rodbertus Comes Normannie: & cum frattem suum Henricum debuissent adjuvare, eique providere, ut honorabil●ter inter illos sicu● frater corum & fil us Regis posset vivere, non hoc fecerunt; sed de tota terra patris sui expellere conati sunt: Sed quamvis inde multum conati fuissent, tamen non potuerunt facere sicut volderunt: sed contra voluntatem eorum tenuit castrum quod vocatur Danfrunt, quod non parva industria ceperat, nec postquam illud captum habuit, ei ulla vi auferre potuerunt: Dominus verò sicut multis visum est adjuvabat Henricum; de quo postea disponebat de tota Anglia & Norhmannia heredem facere & Dominum. Contigit vero postea ut Rodbertus Comes Normannie Jerusalem iret. Normanniamque totam fratri suo Willielmo Regi Anglorum invadiaret, & tunc Henricus fratri suo Regi Anglorum omnino se conferret atque cum eo ex toto remaneret. Dum itaque cum eo esset, post aliquantum temporis contigit ut quadam die Rex: u: Willielmus venatum iret; ibique nescimus quo judicio Dei, a quodam milite sagitta percussus, occubuisset: Quem statim Henricus frater suus Wintoniam deferri fecit; ibique in ecclesia Sancti Petei ante majus Altare sepulture tradidit. Quo sepulto Lundoniam venit, atque apud Westmonasterium annuentibus ●unctis, Francis & Anglis coronam regni Anglie suscepit; cunctique letati sunt quod modo Regem natum de Rege & Regina●● natum & nutritum in Anglia habere meruissent: Ordinatus sicut intelligimus per voluntatem Dei Henricus Anglorum Rex; cepit magnam justiciam per Angliam tenere; & ut legaliter viveret, accepit uxorem, filiam Regis Scocie; de qua primum unam filiam habuit; quam postea Imperatori Alemannie in matrimonium junxit, habuit etiam de eadem uxore sua unum filium qui non diu vivens huic vitae finem fecit. Non longum autem tempus suit postquam Henricus Rex coronam Anglie suscepit, quod frater suus Rodbertus de Jerusalem red●it, atque suam Norhmanniam quam fratri suo Willielmo invadiaverat, recepit. Audiens itaque quod Henricus frater suus Rex Anglorum esset constitutus cepit indignari adversus illum, multum ei minari, quod Regnum Anglie suscipere ausus fuisset; non recte cogitans neque intelligens quid Scriptura dicit: quia nulla potestas nisi a Deo est: Hac igitur de causa, cepit nav gium preparare quale poruit, quo preparato, in Angliam transnavigavit; Henricus autem Rex, cujus fiducia tota erat in Deo, magnam militiam Anglorum congregans; velociter venit adversus eum; paratus eum & omnes qui cum eo venerant de terra Anglorum expellere, quod profecto annuente Deo in brevi fecisset, nisi frater suus cum eo concordiam egisset; facta itaque inter eos concordia, aliquanto tempore demoratus est Comes Rodbertus in Anglia; in qua postquam tam diu fuit quantum ei placuit: in Normannia remeavit. Non din autem duravit inter ●os ista concordia. Rodbertus vero Comes plus justò credens illis qui magis volebant inter eos discordiam esse quam pacem, iterum cepit occasiones querer●; fratrem●ue suum ad discordiam commovere; Rex autem Henricus non diutiùs hoc ferens, quam citiùs potuit mare transivit; atque non multo post, non parvo exercitu congregato obsedit civitatem Baiocas eamque citiùs capiens fere omnem destruxit. Deinde cepit Cadomum. Post aliquantum verò temporis cum obsideret quoddam castrum Comitis Moritonii quod vocatur Tenerchebrai; atque obsidendo laboraret ut illud caperet; frater ejus Rodbertus Comes, & Comes Mori●onii cum magna multitudine militum, putantes se de Rege Henricò vindicare; eumque omninò de terra delere, cum magno impetu irruerunt super eum & super eos qui cum illo erant, sed judicio Dei super eos veniente, capti sunt ambo, & multi alii cum iis, ab hominibus Regis Henrici atque ante eum adducti. Fin●ta itaque hac obsidione atque illis in captione sua retentis; Rex Henricus totam Normanniam & omnia castella Comitis Moritonii in suum Dominium suscepit: atque ita omnis terra sedata, rediens in Angliam Rodbertum Comitem fratrem suum & Comitem Moritonii, & quosdam alios quos ei placuit secum adduxit, eosque adhuc in captione tenere decernit. Hic est autem Status Anglie & Normannie ad presens, que autem post hec in his terris futura sint, posteritas videbit. Seriem vero hujus Generationis & Ordinem ab illo Dano qui Rollo vocatus, Terram que vocatur Normannia super Regem Francie conquisivit, & conquisita ille & heredes post eum possederunt usque ad Henricum qui modo eam regit & possidet; sic quidam computare solent. Rollo inquiunt hujus Genealogie primus fuit. Willelmus vero filius ejus qui vocatus est Longaspata secundus extitit. Ricardus vero hujus Willelmi filius tercius fuit. Ricardus hujus Ricardi fil●us qui Abbatiam Fiscanni construxit in quarto loco post Rollonem Norhmannos rexit. Rodbertus vero fil●us Ricardi qui Jerusalem perrexit sed dum inde reverteretur apud Nicam vitam presentem finivit hujus generationis quintus Comes Normannorum extitit. Willemus vero hujus Rodberti filius qui non solum Normanniam sed etiam Angliam possedit in Sexto loco successit. Post illum autem in septimo loco fuerunt filii ejus ex quibus solus Henricus modo Normanniam & Angliam possidet: Quis vero post eum has terras possidebit, & possessas Gubernabit, Generatio que tunc erit videre poterit. Ubi sepulta jacent Horum Corpora. Rollo & Willelmus filius ejus jacent Rotomagi in ecclesia Beate Marie que est caput Archiepiscopatus. Ricardus vero filius Willemi & alius Ricardus jacent Fiscanni. Rodbertus vero filius Ricardi qui rediens de Jerusalem vitam presentem finivit in Nica civitate sepultus quiescit. Wi●●elmus vero fil●us Rod●er● jacet Cadomi in ecclesia Beati Stephani quam ipse edificavit. Fecit autem iste Willelmus tres Abbatias de suo Domimo, duas Cadomi; unam de Monachis ubi ipse Jacet, aliam de Sanctimonialibus ubi Uxor ejus Mathildis Regina sepulta est: fecit autem & terciam in Anglia, in eo loco ubi ei Dominus victoriam tribuit de inimicis, que multo minoris pretii est quam fuisset, si eam dedicate potuisset: Cum enim eam primum incepit, cogitavit eam facere unam de Majoribus & ditioribus eccles●s Anglie: sed preventus mo●●e non potuit facere sicut cogitaverat. Ex cujus rei eventu discimus: Quod sapienter agit, qui bonum quod agere disponit quam citius potest perficere satagit. Nullus enim novit si hodie vivit, si crastinum diem videre poterit: & ideo prudentius agit, qui bonum quod in crastico agere disponit, hodie faciat si possit. Securius enim gaudemus de bono quod factum habemus, quam de bono quod facere disponimus, & nondum fecimus. Multotiens enim quibusdam accidit, ut dum differunt bonum facere quod volunt, eye deficiat & voluntas & possibilitas. Que autem de his Comitibus unde locutus sum à quibusdam foleant referr●; si ego scribam fortassis quibusdam non displicebit. Rollo qui hujus Generationis primus extitis, antequam Normanniam cepisset, sicut quidam dicunt Paganus erat; sed predicatione cujusdam Archiepiscopi Rotomagi fidem Christ suscepit, qui quoque baptizatus est: leges Christianas quam diu vix●● & ipse benè custodivit, & omni populo suo bene custodite fecit. Quante vero humilitatis fuit, post●uam fidem Christi suscepit, ex una re quam fecit patenter cunctis innotuit: Quodam tempore postquam paci●icatus est cum Rege Francie; vementes ad cum ●om●●es ●otomagi, ceperunt eum rogare ut de Francia faceret corpus sancti Audoeni redire, quod propter tin●orem ejus illuc olim fuerat transtatum; antequam cepisset Normandiam: Tristes enim & mul●um dolentes sumus, quod sic Archiepiscopum nostrum predictum habemus: hoc audiens Comes mandavit Regem Francie, ut ei suum presbiterum redderet, quod si non faceret, proculdubio sciret quod nullo modo pacem cum eo habere posset: tunc Rex Francie nolens ei de hac re facere contrarium, reddidit ei sicut petebat suum presbiterum: tunc Comes precepit ut inde reduceretur Sanctus Audoenus sueque redderetur ecclesie unde fuerat asportatus: Monachi igitur qui custodes ejus fuerant dum in Francia fuit, reportaverunt eum usque ad quandam villam que est ad unam Lewam juxta urbem Rotomagi: Ibi Itaque cum pervenissent, non parum de via lassati: Manserunt in illa, nocte; Ut, manè surgentes, si possent, sanctum Audoenum ad suum locum reportarent; Cum itaque manè surgerent, eumque ad Civitatem portare vellent, nullo modo potuerunt: tunc tristes Monachi nimiumque dolentes de hoc quod eis acciderat, mandaverunt civitati quod Sanctum Audoenum nullo modo poterant movere de loco illo ubi jacuerant illa nocte: quod cùm Comiti qui tunc erat Rotomagum nuntiatum fuisset, respondit: quia merito hec tribulatio de corpore Sancti Audoeni eye accidiss●t; quia si●rectè cogitassent, sensumque rectum habuissent, ad processionem & cum magna devotione, contra eum venire debuissent. Post hec precepit Comes Archiepiscopo omnique populo Rotomagi; ut in langis & nudis pedibus cum eo ad sanctum Audoenum pergerent; ejusque pietatem quam devotius possent exorarent, quatinus ad stultitias eorum vel negligentias non respiceret, sed propitius illis fieret, seque de loco illo ad Civitatem ubi Archiepiscopus fuisset transferri permitteret. Tunc ipse Comes primus sicut aliis preceperat in Langis nudisque pedibus usque ad villam ubi Sanctus Audoenus erat, pervenit. Quo cum pervenisset, protinus cum omni populo, qui cum eo erat coram feretro ejus prostratus, hec orando dixit: Sancte Audoene, Bone Archiepiscope & Advocate noster, permittito vestrum corpus ad civitatem transferri; ubi Presulis officio functus fuisti, & sacras benedictiones sepius fecisti; & Ego Do Ecclesie vestre & vobis— totam terram que adjacet ab isto loco usque ad menia Civitatis: Tunc continu● Comes & populus summissis humeris feretrum in quo Sanctum corpus erat facillime deportare ceperunt; & sic usque ad ecclesiam suam, gaudentes & exultantes deportaverunt: ex hujus rei eventu dixerunt quidam illam villulam vocari longum Peanum, eo quod Comes illud tam longum iter nudis pedibus perexisset. Si quis hoc factum non esse signum magne humilitatis asserit; de eo veraciter dici potest; quia quid sit maxima humilitas nescit. Quiddam verò aliud dicitur eidem Comiti accidisse eo tempore quo primum pacificatus est cum Rege Francie; quod non ideo scribo ut certus sim hoc verum esse, sed quia a multis audivi, hoc referri: qui asserebant id veraciter evenisse: Quodam die dum sicut dicebant, erat idem Comes Rotomagum, ad vesperam ipsius diei stabant plurimi homines ante domos suas que erant juxta ripam Sequane; illic vero cum essent, eandemque aquam aspicerent, viderunt unum equitem transire super aquam quasi iret super terram, & usque ad eos pervenientem: Hac igitur de re non parum obstupefacti, cum ad eos pervenisset, ceperunt inquirere ab eo quis esset & unde venisset; ille verò respondens; videtis inquit quod ego unus homo sum, & hodie multum manè motus sum de Rethnis in Brittan●ia; Abrincas vero ad Sex●am horam comedi; ad vesperam autem hucusque sieut videtis perveni. T●●c ●andaverunt Comiti, qui, sicut dixi, tunc erat in civirate, de illo homine qui sic transierat super aquam sine ulla lesione; Comes vero audiens rem tam insuetam, mandavit ei, ut illi loqueretur antequam hinc recederet: tunc ille remandavit Comiti; quia in crastino eum usque ad primam expectaret: Ille autem in crastino mane surgens viam suam tenuit, & nichil locutus est Comiti; Comes verò ut audivit eum recessisse dixit; eum mentitum esse, & ideo putare eum aliquod fantasma esse; qui sic eos voluisset deludere: tunc dixerunt quidam qui affuerunt; quia non prima Comitis sed prima sua ei mandasset; prima enim ejus multò citius esset quam prima Comitis, & ideo verum fuit quod dixit. Dum vero in illa nocte sederet ad focum su● hospitis; & suus hospes de multis eum interrogaret, & maxime de illo Comite, si generatio illa diutius maneret; respondit, illam diutius manere; illudque imperium usque ad septimam generationem viril●ter durare: Cum itaque hospes inquisisset quid post septimam generationem ●uturum esset; nichil voluit respondere; sed de uno fussello quem manu tenebat, cepit per cineres foci quasi reias facere; & cum hospes suus vehementer ab eo exigeret, quid post septimam generationem eveniret: de ipso fussello quem manu tenebat commiscuit rei●s quas in cineribus fecerat; ex quo signo quod fecerat, arbitrati sunt, quod post septimam generationem illud imperium vel deficeret, vel magnas pateretur dissensionum tribulationes. Willelmus vero filius ejus sicut quidam dixerunt interfectus est per traditionem a quodam Comite in Ponteio; quem cum interfectum Franci audissent, mox ejus filium Ricardum ceperunt, & in Franciam in captionem duxerunt. Hic Willelmus habebat unum scriniolum de quo ipse semper portabat claviculum, quod diffirmantes postquam interfectus est, nichil in eo aliud invenerunt, nisi unam stamineam quam solebat, sicut dicebatur, in Quadragesima vel in aliis diebus afflictionis portare. Dani autem audientes quod Franci interfectum habuissent Willelmum parentem illorum, non parum irati de hoc, quam citius potuerunt cum magna multitudine pugnatorum, transnavigantes in Normanniam ad portum Dive arrivaverunt, contra quos Rex Francie cum non parva multitudine militum venit; si fortè posset illos pugnando de terra Normannie expellere; veniens itaque fere usque ad illos, timuit cum eis pugnare, sed quesivit cum eis pacem; facere illumque Comitem qui Willelmum interfecerat cum eis concordare. Dani autem ad horam finxerunt se illam concordiam suscipere: Sed ut viderunt illum qui parentem illorum interfecerat, non curantes de concordia quam Rex Francie querebat; impetum facientes super eum, interfecerunt illum & plurimos de eis qui cum illo venerunt; Regem vero Francie fugere compulerunt, quem fug●entem homines Rotomagi cepetunt atque captum duxerunt Rotomagum. Postea vero communi decreto Franci & Dani talem Concordiam inter se feeerunt; ut Dani redderent Regem Francie: & Franci redderent Ricardum filium Willelmi Comitem Norhmannie. Tunc in illa concordia auxerunt & augendo creverunt Norhmanniam Dani, ab aqua que vocatur Ardella usque ad aliamo aquam que vocatur Etta. Alii tamen dicunt ab Etta usque ad Isaram. Constitutum est etiam & aliud in illa concordia, quod Comes Norhmannie nullum servitium faceret Regi Francie de terra Normannie, nec ei aliter serviret, nisi Rex Francie Feudiam daret ei in Francia, unde ei servire deberet. Quapropter Comes Normannie de Normannia tantummodo facit homagium Regi Francie, & fidelitatem de vita sua, & de terreno honore suo: Similiter & Rex Francie facit fidelitatem & de vita sua, & de terreno honore Comiti Normannie, & nichil aliud differt inter illos, nisi quod homagium non facit Rex Francie Comiti Normannie, sicuti Comes Normannie Regi Francie facit. Hanc libertatem adquisierunt tunc Dani parentibus suis Comitibus Nothmannie. Post istum Ricardum alius Ricardus filius ejus tenuit Normanniam. Hic Ricardus fuit pater patrie: Toto enim tempore ejus abundavit Normannia omnibus bonis, & tanta pax fuit in Normannia ejus tempore, ut nec etiam carrucarii de campis suis auderent ferra carruce ad suas domos reportare, & si alicui furata fuissent, preceperat Come● ut ad eum venirer, & quicquid furto perdidisset, ipse ei ex integro totum redderet: Quod audiens uxor cujusdam carrucarii, probare volens si verum esset hoc quod Comes jussisset, quadani die furata est ferra mariti sui: Carrucatius verò in crastino veniens ad carrucam suam, & ferra sua non inveniens; venit ad Comitem, ei●● retulit, quod ferra catruce sue ei furata essent; tunc Comes precepit ei dare denarios, unde posset alia ferra emere. Ille itaque rediens domum, retulit uxori sue quid ei Comes fecisset; tunc dixit ei ux or ipsius quod modo bene esset; quia & ipse denario● & ipsa ferra haberet. Carrucarius vero hoc audiens ●e infideliter ageret, reportavit Comiti suos denarios; eique retulit quid uxor sua fecisset. Comes vero retinens Carrucarium aliquanto tempore misit et precepit, ut uxori ejus eruerentur oculi propter furtum quod secerat: cum itaque Carrucarius domum suam redisset, inveriens quod uxori ejus oculi essent eruti, cumiindignatione dixit ei: Noli amplius furari, & a modo disce observare precepta Comitis. Hic Comes edificavit Ecclesiam Fiscanni, illamque non parum terris & ornamentis divitem fecit. Hic erat solitus fere omni tempore suam curiam in Pascali folemnitate apud Fiscannium tenere; & tunc quando ei placebat in ipsa solemnitate solebat unam Tinam plenam textis turibulis, candelabris, & quibusdam aliis ornamentis; & coopertam quodam optimo pallio, ipse & uxor sua ante altare sancte Trimtatis 〈◊〉, ipsaque pro suis peccatis ibi Deo offerre. Ipse verò die post missa● antequam ad curiam suam iret, atque cum Baronibus suis comederer, veniebat cum duobts filiis suis Ricardo & R●dberto in refectorio Monachor●● & illi filii sui apportantes de fenestra coquine scutellas sicut solent Monachi facere, porrigebant patri suo, & ipse per seipsum prima fercula ante Abbatem & postea ante Monachos ponebat: quod cum perfecisset, cum magna humilitate, veniebat ante Abbatem, & sic ab eo accepta licentia, letus & gaudens ibat ad curiam suam. Aliquando vero de sua mensa, mittebat Abbati scutellam argenteam plenam piscibus, & mandabat ei ut cam retineret, atque inde suam voluntatem faceret. Iste bonus Ricardus, non solum Ecclesie Fiscanni multa dedit, sed etiam alus Ecclesiis. Quadam verò nocte jacuit apud Genmetiam, mane verò furgens, sicut sua consuetudo semper erat, perrexit orare ad monasterium; qui post orationem, posuit super altare unum fussellum: recedente verò illo venerunt Secretarii ad Altare, putantes se ibi esse inventuros vel marcam Auri, vel unciam, vel aliquid hujusmodi: invenerunt itaque fuffellum; atque quid hoc significaret non parum mirari ceperunt; ad ultimum inquisierunt ab eo quid hoc esset, quod super Altare illum fussellum posuisset: Tunc respondit eis, quod hoc esset Vimonastimum, scilicet quoddam manerium quod ipse illis pro anima sua dabat. Hec de Ricardo Comite dicta sufficiant, quamvis non possint facile omnia bona que fecit referri. De Rodberto verò Comite filio ejus, & de Willelmo filio Rodberti Comitis, qui Angliam conquisivit; quia inde jam satis diximus; non est opus amplius quid dicere. De Willelmo tamen hoc audivi; quia cum natus fuisset, & super quoddam stramen quod ibi erat casu poneretur, ambas manulas suas super stramen projecit; easque illo stramine plenas super pectus suum apposuit. In Calce hujus Libelli in eadem scriptara; adjititur Catalogus suppeditancium naves ad expeditionem Gulielmi Comitis in Angliam. Willelmus Dux Normannorum veniens in Augliam ob adquirendum Regnum jure sibi debitam habuit. A. Willelmo dapifero filio Osberni sexaginta naves. ab Hugone postea Comite de Cestria totidem. ab Hugone de Mumfort quinquaginta naves & sexaginta milites. rumi a Romo Elemosinario Fescanni postea episcopo Lincoliensi unam navem cum viginti militibus. a Nicholas Abbate de Sancto Audoeno quindecim naves cum centum militibus. a Roberto Comite Augi sexaginta naves. a Fulcone Dauno quadraginta naves. a Geroldo Dapifero totidem. a Willelmo Comite Deurons octoginta naves. a Rogero de Mumgumeri sexaginta naves. ab Odone Episcopo de Baios centum naves. a Roberto de Morotemer centum & viginti. a Waltero Giffardo triginta cum centum militibus. 1 Extra●●d 〈◊〉 computata simul M. efficiunt, habuit Dux a quibusdam suis hominibus secundum possibilitatem unius cujusque multas alias naves. Matildis postea Regina, ejusdem Ducis uxor, ad honorem Ducis fecit effici, navem que vocabatur MORA: in qua ipse Dux vectus est: In prora ejusdem navis fecit fieri eadem Motildes infantulum de Au●o; dextro indice monstrantem Angliam; & sinistra manu imprimentem cornu eburneum ori; pro quo facto Dux concessit eidem Matildi Comitatum Cantie. Ut Generationes in Historiola precedenti clariùs intelligantur, hanc Collationem ad illustrationem Stemmatis Normannici lubens subjecit Silas Taylor. Guion nobilis Dacus cum duobus filiis Rollone & Gourino è Dania precepto Regis irati discedere ordinati erant; qui, non solum istud mandatum spernentes, sed etiam & bellum contra ipsum movebant: quo, & Guion pater, & Guorinus filius ejus, interfecti fuerant: & Rollo cum participibus suis sibi novas sedes quaerere coactus erat. Guion. Gourinus qui etiam & Gurim est dictus a Willelmo Gemeticensi, fatis cecidit ut antea. Popee & popa filia Guidonis— Comitis Silvanectensis, capta in obsidione urbis Bajocensis. Walf uxor secunda. ***— Rollo, qui etiam & Rodbertus ad fontem baptismalem dictus est a Rodberto Duce Francorum, Anno Dom. 912. quo tempore factus erat Comes Normanniae, a Septentrionalium invasione sic dictae, quae anten Neustria vocata erat, Rotomagi sepultus jacet.— Guilla aut Gilla filia Caroli Francorum Regis. Gemet. & Speed. *** Willielmus Longaspata; Dux Normanniae aedificavit Ecclesi am Gemeticensem, interfectus erat insidiis Arnulfi Flandriae Comitis apud Pinchimacum super fluvium Sompne & Rotomagi in ecclesia B. Mariae juxta patrem est sepultus, è Guliel. Gemet. obiit 16 Kalend. Jan. 944. ut è Thoma Wals. sed 943. è Willelmo Gemetic— Sporta filia Huberti Sentilicensis Comitis; Herberti in Walsing. in ypod. Neustriae. *** Gunnora è nobilissima prosapia & sanguine Dacorum orta, in vita primae uxoris ejus Concubina erat, ypod Neust. sed postea eam in uxorem duxit.— Ricardus primus etiam & durus dictus: vivente patre Ducatui praeficitur, obiit, Anno Dom. 996. in Regimine illius, Otho Imperator obsidione Rhotomagum cinxir, ubi Norm●●ni (portis patefactis impetu repentino proruentes,) tanto turbine depopulati sunt adversarios ut tentoriis complicatis in conticinio noctis dimissa obsidione, cum morte nepotis Imperatoris, gressus retorquent. Fiscanni sepultus jacet.— Agnes quae & Emma dicta, filia Hugonis Magni (aut le Grand) Comitis Parisiensis, Abbatis Sancti Germani, & patris Hugonis Capeti Regis Franciae, fine prole mortua est: ypod Neustr. Robertus Archiepiscopus Retomag. Havisa nupta Gorffrido Britanorum Comiti. Alanus. Guido aut Eudo, sibi intendens Ducatum Norm tempore Gul. Conq. interfectus erat. Emma nupta (postea Canuto Regi Angliae.)— Ethelredo Regi Anglorum. Edwardus dictus Confessor obiit sine prole. Rex Angliae. Aluredus qui dolls & insidiis Goduini Comitis interemptus erat. Matildis nupta Edoni Comiti de Chartres. Malgerius & duo alii filii. *** Ricardus bonus comes Normanniae secundus, qui cum patre suo, Fiscanni Sepultus jacet.— Juditha Soror Gorffridi Britannorum Comitis. Estrica uxor secunda soror Canuti Regis Angliae fine prole. Pavia uxor tertia à qua Gul. Comitem de Arques & Maugerum Archiepiscopum Rotomagi (in filios ut volunt alii, sed alii in Nothos) genuit. Adeliza uxor Reginaldi Comitis Burgoniae è quibus. Guido Comes de Briorne & Vernon. Alianora uxor Balduini quarti Comitis Flandriae. Baldvinus— quintus Comes Flandriae. Ricardus; cujus in hâc historiola nulla est mentio, quem dicunt a Rodberto fratre suo veneno interemptum fuiffe; ferturque eum iter istud Jerosolymitanum, pro expiatione hujus peccati suscapisse. *** Rodbertus Dux Normanniae qui rediens a terra sancta mortuus est, & in Nica civitate inhumatus jacet, ex hist. preced.— Arletta (cujus nec meminit historia nostra) fuit ut plurimi volunt concubina ejus, etsi alir eam postea Duci nuptam esse asserunt.— Herlino homini ignotae conditionis secundo nupta erat: is, in fragmento Stephani Cadomensis nominatur Herluinus de Contavilla. *** Willelmus dictus nothus Dux Normanniae, postea conquestu Rex. Anglorum sepultus jacet Cadomi in Ecclesia B. Stephani.— Matildes Ducissa Norm. postea (secundum historiam nostram) Comitissa Cantiae, denique Regina Angliae. *** Robertus Dux Normanniae. Willemus secundus Rex Angliae, sepultus in Ecclesia Sancti Petri Winton. requiescit. *** Henricus primus Rex Angliae & Dux Normanniae.— Malda sen Matildis filia Malcolmi Canmoir tertii, Regis Scotorum & Margaretae Sotoris Edgari filii Edvardi. Matildis Imperatrix. Odo Episcopus Bajocensis a Rege Willielmo fratre suo uterino in dignitatem Comitis Cantiae in Anglia promotus erar. Robertus Comes Montaigniae, sed Moritonii dicitur in frag. Steph. Cadomensis vir crassi & hebetis ingenii ut apud Willielm. Taylyur de Rotomag. Emma uxor Ricardi Comitis Auranchiae in Normannia, quibus genitus erat Hugo Lupus Cestriae Comes Palatlnus. — filia Willielmi ducis Normanniae nupta Herberto Comiti Giromandorum. Girlotta, nupta Gulielma Pictaviensi Comiti, quae & Gerloc dicitur. Th. Wals. in ypod. Neustr. & Gul. Gemet. Books Printed for and Sold by John Starkey at the Mitre betwixt the middle Temple-Gate, and Temple-Bar in Fleetstreet. Folio's. THe Voyages and Travels of the Duke of Holsteins' Ambassadors into Muscovy, Tartary, and Persia, begun in the year 1633. and finished in 1639. containing a Complete History of those Countries; whereto are added the Travels of John Albert de Mandelslo from Persia into the East-Indies, begun in 1638. and finished in 1640. the whole illustrated with divers accurate Maps and figures, and written by Adam Olearius Secretary to the Embassy. The World Surveyed, or the famous Voyages and Travels of Vincent de Blanc of Marseilles, into the East and West-Indies, Persia, Pegu, Fez, Morocco, Guinny, and through all Africa, and the principal Provinces of Europe. A Practical and Polemical Commentary, or Exposition upon the third and fourth Chapters of the ●atter Epistle of Saint Paul to Timothy, by Thomas Hall. B. D. Brevia Judicialia, or an Exact Collection of approved forms of all sorts of Judicial Writs in the Common-Bench, together with their returns, by Rich. Brownlow. Thesaurus Brevium, or a Collection of approved forms of Original and Judicial Writs in the King's Bench, with their special Directions, by J. C. Action upon the Case for Slander, or a Methodical Collection of thousands of Cases in the Law, of what words are Actionable, and what not, by William Shepherd, Esq. Guillims' display of Heraldry. Blundels' Treatise of the Sybells. Quarto's. A Collection of Declarations, Messages, Speeches, Remonstrances, etc. which passed betwixt King Charles the first, and the long Parliament, in the years 1641, 1642, 1643. Richard baxter's Treatise of Saving Faith. Lawsons' Politica Sacra & Civilis, or a model of Civil and Ecclesiastical Government. The History of Gavelkind with the Etymology thereof, containing a vindication of the Laws of England, together with a short History of William the Conqueror, by Sylas Taylor. Octavos. An Historical and Geographical description of the great Country and River of the Amazons in America; with an exact Map thereof, Translated out of French. The Shepherd's Paradise, a Pastoral, by Walter Montague. Aminta, the famous Italians Pastoral, translated into English. Ploudens Queries, or a Moot Book of choice Cases in the Common-Law, Englished, methodised, and enlarged by H. B. An Exact Abridgement of all the Statutes in force and use, made in the 16th, 17th, & 18th. of King Charles the first, and in the 12th, 13th. & 14th. of King Charles the second, viz. from the 4th. of Jan. 1641/2. to the 81th. of Febr. 1662/3; by William Hughes, Esq. finch's Discourse of the Law in four books. Engl. Tho. Goodwin. Opuscula Theolog. Tho. Hall Apologia pro Ministerio Evangelico. — Translation of the second book of Ovid's Metamorph. — Treatise against the Millenaries. Twelve. Tho. hooker's Miscellanies in Divinity. Rich: Baxters Call to the Unconverted.