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£^'2^11.^
I^arbarti College libraru-
the library of
Professor E. W. GURNEY,
(Class of 1853).
RcccivLMl 22 May, 1S90.
THE
TENUEES OF KENT.
HY
CHAKLES I. ELTON,
LATE FELLOW OP QUEEN's COLLEGE, OXFORD; AND OF
Lincoln's inn, babjustek-at-law.
LONDON:
JAMES PARKER AND CO.
1867.
11 t-
■¥ -Srir
t\
aarvar«i College Library,
22 May, 1890.
Prom the Library of
PKOP. E W OUUNEY,
ttn^ ;i^17» ^
(rintcb bji |amtt |^aiktt snb Co., Crobn-ssrb, #fforb.
Zffis Book
IS, BY PERMISSION, RESPECTFULLY DEDICATED
TO THE RIGHT HONOITRABLS THE
EARL STA^raOPE, D.C.L..
FKEBIUKST OF THZ 90CIZTT OF A^nQCAUES.
ADYEETISEMENT.
•THE writer has endeavoured, in a short review of the
history of the tenures of Kent, to* shew how much
less land in the county is of the nature of gavelkind,
than has been commonly presumed. Much assistance
has been derived from the unpublished collections of
the chief Kentish writers, as Lambarde, Philipot, and
Hasted, now in the British Museum, as well as from
the official records: The number of cases continually
increases in Kent, in which a doubt as to the tenure
prevents any free dealing with the land. In such
cases, it is hoped that this short handbook may be of
some practical utility.
2, New Square, Limcoln's Inn, 1866.
CONTENTS.
TABLE OP CASES p. xin.
TABLE OF PLACES IN KENT p. xv.
CHAPTER I.
The LhnitB of Oavelkiiid in Kent.
UKCIBTAIKT7 in Kent as to what lands are held in Gavelkind. — Antiquity of the law
of real property in this County. — The law of Gavelkind a fragment of the old
Common Law. — Expense and diiBculty caused by uncertainty as to Tenure. —
Kuch land supposed wrongly to be Gavelkind. — ^No lapse of tinie can alter ita
nature. — General rules as to Kentish Tenures. — What was not Gavelkind «t the
Conquest cannot be now dealt with as such. — Exception to this rule.— What was
Gavelkind at the Conquest is so now. — Presumption that primd facie all lands in
the County are of this nature. — Extent of lands which were never Gavelkind. —
Lists of these lands taken in each reign while the Feudal System remained. —
These records still preserved. — Uncertainty as to Tennre now removed by the
publication of the records.— Distinction between anperior and inferior Tenures. —
Spiritual Tenure of free alms or Francalmoigne. — Military Tenures. — Barony. —
Knight-service. — Serjeanty.— Castleguard^ — Military Tenants of Ancient Demesne.
— Inferior Tenures. — Ancient Socage or Gavelkind. — Socage which is not Gavel-
kind.— Copyhold. — Petty Serjeanty. — Burgage. — Gavelkind Tenants of Ancient
Demesne. — Effect of the dissolution of Monasteries. — Lands held in ancient Franc-
almoigne are not now Gavelkind. — Lands lield by an ancient military service are
not Garelkiad^ — Effect of the abolition of Feudal Tenures. — Tenure of wastes aud
oomaMia lands. — Demesne lands. — Advowsons. — Some are Gavelkind. — Manors
without demesne . . . p. 1
CHAPTER II.
TennreB in Kent before the Oonqnest.
The ancient laws of real property; Crownland, Folkland, Book land. — Kentish manors
held in Francalmoigne. — Form of the charters of donation. — The Trinoda Necee-
tUas. — Queen Ediva's gift to Christchurch. — Franchises. — Sac and Soc. — Military
services. — Three classes of Thanes. — Allodial tenants. — Drengs or Tiirengs , tenure
of their lands . . . . . . p. 13
CHAPTER III.
Gavelkind.
Tenure of the yeomen and rustics. — Gavel-land.— Rents and services due to the lord.
— Many varieties of Socage. — Customs of the Kentish Socmen. — Incidents of their
Tenure. — Personal fineedom. — Alienation inter wco*.— Devise.— Bequest.— Descent.
—Dower.— Curtesy.— Escheat . . . . p. 29
VUl CONTENTS.
CHAPTER IV.
Gayelkind*
The word 'Qavelkind' used in different senses. — Great confusion has resulted from
this. — Socage before the Conquest. — The ancient Socage of Kent. — The customs
of Gavelkind. — The custom of partible descent in Kent. — Similar customs in other
parts of England . . . . p. 45
CHAPTER V.
The Norman Oonqnest.
Introduction of the Feudal System into Kent. — Retention of Tenures in Francal-
moigne, Drengage, Burgage, and Socage. — Changes in the three latter Tenures. —
Drengage. — Its importance to an enquiry into Gavelkind. — Letter of the monks
of Christchurch to Henry II. — Changes in the law of Gavelkind. — Escheat. —
Forfeiture. — Alienation. — Devise. — Descent.' — Dower. — Curtesy. — Presumption
that lands in Kent are Gavelkind. — Instances of its application. — Cases where it
is not allowed . . • . . . . p. 59
CHAJPTER VI.
The Domesday Siirvey.
Domesday Book. — Its importance in all questions affecting lands in Kent. — Ancient
dimensions of land. — Suling^ — Ploughlands or carucates. — Dimensions of the
Kentish ploughland. — Rulings. — Yokes. — Oxg^angs. — Varieties of Gavelkind. —
Copyholds in Kent. — Villeinage. — Military and Spiritual Tenures. . p. 113
CHATTER VII.
Tennre in Bnrgage.
Burgage Tenure. — The customs of the Saxon towns. — The tenure still of importance.
Boroughs of different kinds. — Rural borooghs in Kent. — Borsholders. — General
and special customs of Burgage. — Connection of Burgage and Gavelkind. — Borough -
English. — Its origin. — Places where it prevails. — True explanation of Borough-Eng-
lish. — In ancient boroughs. — In copyholds. — Traces of it in the Kentish Custumal.
— ^The custom of Merchetum. — Its real meaning. — Its extent. — Three classes of
freeholders in the ancient boroughs of Kent. — Exclusion of the half-blood in Gavel-
kind and Burgage tenements.— Exchanges of Burgage lands under the Enclosure
Act of 8 and 9 Vict., c. 118. — Exchanges of Gavelkind land under the same Act. —
Inconveniences of Borough-English. — Customs of various boroughs. — ^The Isle of
Portland. — The Fee of ArundeL — Summary . . .p. 152
CHAPTER VIII.
Anoient Demesne.
Account of the tenure. — Customary Freeholders. — Terra Beffis of Kent. — ^Manors
of ATLE8F0RD, FULLENS, DJJtTF0SD,-<^9ae of Gou^e v. Woodin.-^
Descent of nentB-service,— WILMINGTON, FAVJSESHAM, MILTON, MIL-
STED, NEWINGTON.-^CovirtB of Ancient DemeBue.—SOKINGFOLD, GUr-
LINGRAM.—1hQ Weald of Kent.— Customs and Services of Tenants in the
Weald p. 179
CONTEinS. IX
CHAPTER IX.
Tenure by Barony. — ^By Oastleguard,
Baronies spiritoal and temporaL — Abbey of Favenham. — Dorer Caatle. — Vaiietiet
of Gaatlegnard Tenure.— Cbilham Casfcle.— Tonbridge Castle.— Rochester Castle.—
Pecoliar cnstoms. — Periman*9 ccue, — Castlegnard rents. Manors of EA8TWELL,
TIRLINQRAM,^Le%nard v. Earl of Sustex.— COJTDHAM, SRASTED,
HEVEE^ APPERFIELD, CJSTEPiS'I^ffi?.— Dwgarelled land.— Inquisitions post
mortem, — ^Tenure of Adrowsons .p. 197
CHAPTER X.
Tennres by Sergeanty.
Grand Sergeanty. — Its varieties. — Petty Sergeanty at first a Military Tenure. —
Afterward held to be Socage.— Grand Sergeanties in Kent—JTEST FECKHAM,
8EAT0N, 8H0ENE, ARCREI^S COURT, BILSINGTON, HUE8T, Ac-
Petty Sergeanties in Kent.— OXENHO ATE, ST. MARY CRAY, LULLINQ-
STONE.'-NoerM Comc—OTRAM, BEEESBORNE, &c.— Sergeanties held of
the Archbishop of Canterbury. — Spread of Socage Tenure . .p. 221
CHAPTER XI.
Tennre in Francalmoigne.
Francalmoigne at the Conquest. — Distinction between this tenure and Gavelkind. —
Grants in perpetual alms of Gavelkind lands. — General rule. — Escheats to a Lord
holding in Francalmoigne. — Borough of Stokenbury. — Present limits of the tenure.
— ^Alienation in fee-farm. — Creation of a new socage tenure. — Case of the Manor of
WE8TWELL.— Early notices of the tenure.— Suit of De Bendinga v. Prior of
CkriHchurek. — Real nature of the claim. — Charter of Edward the Confessor. —
£emarks on the case. — Opinion of Somner. — Confusion between Socage and Franc-
alm<Hgne.— Manor of LITTLE CHART, 8EXTRIES, LINS ORE.— Manors
originally in Francalmoigne cannot become Qikre\kind.—SHELDWICH, WARE-
HORNE p. 236
CHAPTER XII.
Tenure in Francalmoigne (continued).
Case of LtuhingUm v. X^aa^^Jf*.— Tithes of RODMERSnAM.—k6,yoYrwm of UP-
CHURCH.— UMon of GORE, DENSTED;KINGSDOWN,POLTON.—Ecc\e-
dastical Corporations holding lands by Military Service.— CANON'S COURT.
—Rectory of TOWN SUTTON.— Munor of HONICHILD, RIVER, WEST
LANGDON-^^een Ediva's gift in Free A\m».—MONKTON, ALDINGTON,
8T0WTING, EASTLENHAM, EAST FARLEIGH— Dispute as to Tenure.
— EAST PECKHAM.—AbBence of Quit-rents from Demesne Lands.— Tenure by
Divine Service. — Somner's Theory.— Harbaldowne Hospital. — Total amount of lands
held in Francalmmgne in Kent .p. 259
C0xVTENT3.
CHAPTER XIII.
Tennre by Knight-Bervice.
General rule. — Office of Escheator and Feodary. — Escheat Rolls. — Red Book of the
Exchequer.— 2V»te de Neml.—'£he Feodary of Kent.— The Roll of Blanch-lands.—
Difficulty of consulting records. — Disinclination to enquire into tenures. — Amoniot
of land in Kent held hy Knight-service.— The Statute 18 Henzy VL c 2.
— Circumstances to which it referred. — Trials of attainL — Consideration of
the Statute. — Fradaons of Knight's-feee. — Lands of the Church. — Lands of
the temporal peers. — Examination of Inquisitions post mortem in the reig^ of
Henry VI.— Manors of LAMBESHUE8T, BARMINQ, OTRAM, JEN-
NINONS-COURT, BUCKLAND, LUDDENHAM, HARRIET8HAM, MAR-
LET, KENARDINOTON, COCKRIDE, BRABOURNE,— Question as to
tenure of advowsons.- CXCOJf^, TIRLINOHAM, LEVELAND, ORLES-
TON. — Alleged partitions by Gavelkind co-heirs. — Woods-court, — Estates of the
Earl of UviTch,—SWANSCOMBE,—lS,iix\y history of the manor of ERITH.—
Trial as to tenure of EYH0RNE.—MUR8T0N . . . . p. 280
CHAPTER XIV.
Tenure by Knight- aervioe (continued).
Importance of the record named the Feodary of Kent. — Its history. — Tenures ti»
capite, — Gavelkind held in capite. — Other records. — Hundred Rolls. — List of
military lands.- Escheat Rolls.— Manors of WESTBERIES, SAOMNET,
TRIENSTONE.— Descent at common law of lands in FRINSTED, ASRURST,
MOLLINOBOURNE.—Yree land and gavelkind in MONINOHAM, NET-
TLESTED. — Descent at common law of manors and lands in DARTFORD,
STONE, LITTLEBROOK, 8WANSC0MBE, YALDHAM, and lOHTRAM.
— Manor and advowson of BECKENHAM, — Descent at common law of manors
and lands in EAST BARMINO, WICHLINO, FRINSTED, LEVELAND,
—Estates of the Northwood f^mWy.—BOUOHTON MALHERBE, 8IIALMS-
FORD, GRAJrESEND, COCKRIDE in BILSIHOTON-Csse of Cheyney
v. Edolfc—Yree tenure of BLEANE and HOADE COURT— Farest of Bleane.
— Question concerning tenure of woodlands. — Manors of PAUL'S CRAY,
FOOrS CRAY, NORTH CRAY, ROO ST. WARBURG R,—Yvee lands in
ORLESTONE and ROMNEY.— Free and customary portions of IFIELD and
REVER COURT— V.AT\y history of BOUGRTON ALUPR— Its tenure.—
Division among co-lieiresses. — Question respecting tenancy by the curtesy of Kng-
hmd.— Subsequent notices.- Pleas of the Crown.— BOTNTON in SWING-
FIELD.— D\spute as to tenure of waste \Hnd.— CRARING, ICKING.— Early
history of BURMARSR and BEAMSTON.—Ctae of Finch v. Finch.— STURRY.
—Free lands in SNAVE, GARWINTON— Other estates of St. Augustine's
Abbey.— ^rODJf^fi^iZ; OWLIE, BRISRING.— Proofs of tenure.— Sub-
division of esUites.— SUTTON COURT, BERE COURT.— Kvidenct^ of military
tenure.^GOODNESTON, G0DWIN8T0N by SITTING BOURNE.—RoU
of Blanch-lands.- Liberty of the Duchy of Lancaster.— XOIFD-EiV, CRELS-
CONTENTS. XI
FIELD, BJLLBOBSE, FAMSBOBOUGff.-Oater ka^ dantbcd ia tte BoO.
—FRBN8RAM im BolTcndai.~5fXX/3'G, DAJtBLES COCMT.-^Lowe t.
Paramomr.—Thm Umg Boom frnxm.— CHAMFIOS8 COZTMT.'-'Ca^tim amd
manor of ALLnraTOy, COBMAM, ORKSSDES. and rLELSTOy.—BnBtd^
leUting to ITEWISQTON and JP/lfCircmaL— fluwil to cUcai •oa.--
rorr/^flfrX— Eectofjof Lejbo««e ^JU
CHAPTER XT.
Temm is Socage.
Antboritj of the Book] of Aid. — Temres m emfiU.—Tmt Bcpxaa «f Bwfeteae vad
Peverd. — Ciuiom respecting Kn%fat« of iht wbsn is Knt. Omrr u w ma f/ msSimrf
tenure into socage in eapiie.—BitatU in kind. — SOTEJTEBE^ CAFBLL, BUM'
HAH, WOOirS COUBT, BCCKLAJ^D.—BeBt werrk* of a nm^—M^aGn hM
is eapUe bj the Abbej of Si. Umrj Grace.— E«ae«s 4f sc Sce^tbcs'i Oh^kC Wtat-
minster. — MAPLESCOMBE, HOCKEyDES. MIShTEB m TkmtA^
8irAySCOMBE.^EgUUM of the Cnhhim fMomtj^—OXEyHOATK, FBEM-
Toy, BOTiyO.—Cme ttrnteermmz lands in FLCMHTED^lUa^ «f ILIL
roir ^»a
CHAPTER XVL
DiggaTelled Lamdi.
DiiBcaltT of identifying Aagnveiled lands in the iaa& eeafciry.— Of inain iif K^yRwariin.
— Inaccnracj of Hssted — The Seal IVopcrs j CoasaaaHfiOL — liwin'i t^ t^^ter ^iiMSr
tioniy with caseL — Opiuons of ¥ea<ii»h fansjeriL — Iw^ &tmgt j^yAt *d 4imqpnn^
ling. — Dagarelling bj pKrogafixre. — Bf E gen a t, — Prpr^jtpt fd^i^ Ankhitikt^ ^
Canterbory.— Ratncs in the Book «i AU.^Amdker^s Oam^—Ut B«imm^$ Oase.—
I^nds diagaTeOed winch were heid i—ii ITiiiiriiry tf t^ k:n^;:. — Q'9/Umfy$ fUm^-
yorikwowr* UmdM—€okk^m^9 lmmdM.n-Smvmd f0!rM.^Umpm>^SS»^ \^ A^ ^
Fuiiament.— Gat/</<>n^« Imrnds^-^Wfrnift UmdM^lfmrnitaFM ^ mtmoim^^fm^
Confosaon of tennr«%— its cnaseu— Caaticgansd indL^-^TW KS 1m ^hm^Skt^^dJ' ^
Win of John Boper.— A grst past ^ Keac ^Bti^m*S:,0A,^~mmmj <«f fk» A^ 4/
154&— Constmetion of the Aeta.— VliaeaMa t, fMUm^Tuk w&an^fni 4ia«^yna ^
Qa¥eIkind.~DDe d. .Bamn t. Bryd^gm^^Lt0>g 4Smpm»SSmf Ao^^lmAn tS^M
by both the grfat £sgaTc£Eag AeSa^-^Landa ^ ^ J, XStic^, ik-V T. O^i^T^Mf, «?^ i.
Hales* Sir T. Kcaipe, Sir A. ScLa^cr, aa-l ^cben^Un^i sdtMt^i -wm^ H^
81 Hen. VUL e. 3, of Lord Bwia*^ itr E. BwoiuMi, trypl />vai«ii^, ^ /;
Halea^and athenu— Lands aiieetcd If the A^ '^ 2 aa.i XtAm.rUm^^, V M#
G. Blage, Sir Martin Bonei^ Th. iMrri^L^M ifrr WutUtr ll«u&ff . Laft -v^ ;«<W
esiatea in Maid s to n e and <faewhcr«:^Laa«fii 'ii ^ Z. WtmntffiMm^^^w^
dwitm y^^
APPENDIX . ^ ^ at
IKDEX f.m
TABLE OF CASES.
Aloed r. Bike, 49.
Altham's case, 386.
Ajlhnr r. Bockenliam, 78.
Att-Gen. r. Panons, 121.
Aucher's case, 366.
. Be Tak^Btt r. Dc Taki^K% III.
I I^ d. Biem r. Brji%»^ ISM, SW,
' B&e d. Bear r. RmMS^mpkm^ 199.
Baker r. Wich, 180.
Beddyl r. Crowtlier, 386.
Bishop r. Herbeidefield, 17-L
Boxgrare's Prior of) caae, 198.
Brittle r. Dale, 181.
Brown r. Brookes, 51, 78, 271, 272,
325, 388.
Bunker r. Coke, 78.
Burridge r. Snnez, 212, 217.
Canteibnry's (Prkr of) caae, 19*-
Ch^man*8 case, 73.
Cheyne r. EdoHe, 321, 393.
Chichester r. Seldon, 195.
Church's case, 345.
Clements r. Scodaaoie, Ifi9, 171,
175, 177.
Cockfield's caae, 99, M5.
Colby's ease, 56.
Cotton r. WiaemaB, 385.
Crowther r. OmM, IW.
Davis r. Seftr, 89.
Be Bedannde r. B^ BcdasBl^ :(^^
367.
Be B^glirook# eve, 159, 175, 1*T,
285, 368, 374,
De Bending! r. tht Prier ^Chn^
ehnrch, 6, 43. 63, S»l, 259, MS,
268, 275, 356.
Fa« r- Bmt:. 168,
Pii** r. Fadb^ DtH ■ 3$5.
F«tii r. iSiti*r, »b,
FKkiL*» <aMP^. 9^^
Ga&ewrk r. GsS^^^rvIc, III, »l,
229, 3«9, 37^, S%2r.
»^. 271, m, ^^, »^, jj^7,
^jmervg^^ ^»a«t. 4£>^ <».
GrM% r , Fiwaiiw; 1 |i^^
Eiiiitai«6wi «r. Uvuu!^^ l!73f.
hMKUutr n he^0^M^, ^^. n^ 14, 7*^
XIV
TABLE OF CASES.
Lee's (Kirby) case, 187, 285, 294,
300, 368, 388.
Lennard v, Sussex, 6, 212, 215, 220,
271, 357, 359, 389, 392, 406.
Lidiard's case, 75.
Lowe t?. Paramour, 101, 199, 292,
293, 308, 339.
Lushington v. Llandaff, 6, 79, 88,
113, 259, 262, 265, 271,275.
Luttrers case, 207.
Maison-dieu (Dundee) case, 21 .
May and Bannister v. Street, 156,
158, 160.
Minet v, Leman, 158, 160.
Mose V. Feltebeam, 91.
Moulin V. Dallison, 175 .
Muggleton v, Bamett, 169.
Newton v. Shafto, 55, 89, 170, 176,
180.
Noel's case, 6, 188, 229, 271, 347.
Northampton's (Prior of) case, 198.
Payne v. Barker, 169.
Penman's case, 182, 203.
Pettes V. Barnard, 100, 101, 103,
308.
Preston v. Jervis, 170.
RandaU t?. Jenkins, 175, 177, 188.
Randall v. Writtle, 177.
Reeve v, Malster, 167, 168.
Rex V, Joliffe, 203.
Rider v. Wood, 167.
Ruff V, Warin, 96.
Sanders's case, 76, 179.
Simpson v, Quinley, 55,
Smith V, Frampton, 181.
Spicer v, Marshall, 48.
Stevens v. Holmes, 205, 347.
Stokes V, Verrier, 175, 177.
Stradling v, Morgan, 386.
Sunninghull's case, 99, 345.
Tanistry, case, 55, 56, 113, 387.
Tenures, case of, 26, 31.
Thurgarton's (Prior of) case, 99.
Wheeler's case, 350, 357.
Wiseman v. Cotton, 50, 51, 53, 54,
74, 79, 359, 365, 373, 385, 389.
Zouch's case, 177.
TABLE OF PLACES
IN KENT
MENTIONED IN THIS TREATISE.
Abbot's Court, 331.
Ackhanger, 341.
Addington, 202, 208, 209, 305.
Adiaham, 20, 70, 247, 401.
Aghne Court, 316.
Aldelose, 339.
Aldington, 18,202,234,267,268,315.
Algar's Fields, 404.
Alkham, 357.
All Saints', 136.
Angley, 404.
Apledore, 16, 70, 247, 404.
Apperfield, 211, 213, 214.
Archer's Court, 227.
Ash (by Wrotham), 370, 402.
Ashford, 218, 318, 333, 351.
Aahmerfield, 395.
AshtoD, 228.
Ashurst, 317, 391.
Aylesford, 146, 183.
Badlesmere, 194, 303.
Bapchild, 193, 260.
Barfreston, 292.
Banning, E., 293, 304, 320.
ry W., 294.
Barton, 351.
Bayhall, 304.
Beamston, 331.
Beocles, 150.
Beckenhaniy 320.
Bekesboume, 231, 348, 401. .
Bere, 337.
Bertrey, 70.
Betshanger, 292.
Bexley, 234, 381, 402.
Bicknors, 190, 202, 292.
Bidborough, 98.
Bilsington, 227, 297, 354.
Birchington, 136.
Bishopsboume, 234.
Bleane, 322.
Bockinfold, 193.
Borstable, 202.
Boughton, 234, 315.
Aluph, 226, 326, 345,
351, 395.
„ Malherbe, 320, 397.
„ Monchensie, 202, 305.
„ under Bleane, 401.
Boxley, 232.
Boynton, 330.
Braboume, 298.
Brasted, 211, 214, 234, 304.
Bray, 180.
Bredgar, 193.
Brenchley, 32.
Brishing, 336.
Brockley, 32.
Bromley, 213.
Brookland, 389.
Buckland, Great, 367.
„ by Dover, 358.
„ by Faversham, 89, 90. '
Burmarsh, 331.
Bury Court, 18.
XVI
TABLE OF PLACES IN KENT
Caldecot. 220.
Canterbury, 75, 160, 360.
Capel, 349.
Cepham, 98.
Chafford's Place, 391.
ChariDg, 234, 331, 367.
Charlton, 381.
Chart, East, 70.
„ Little, 256.
Chartham, 70, 263.
Chelsfield, 338,381.
Chepsted, 212. 214.
Chesilhurst, 381
Che^ening^ 33, 110, 211, 214.
ChidingBlone, 98.
Chilham, 200.
Chillenden, 272.
Chislet, 400.
Cliffe, West, 18.
Cobham, 131.
„ East Court, 202.
Cockride, 297, 321.
Colebridge, 200, 351.
ComU'K, 202.
Combsdi^n, 2110, 392.
CooIiDg, 18, 70.
Cowdcn, 98.
Cowlen Marsh, 404.
Craubrook, 195, 392, 397, 404.
Cray, St. Mary, 229, 302, 397.
„ Foot's, 324.
„ North, 299, 324.
„ Paul's, 323.
Craythome, 321.
Crundal, 111.
Cudham, 211, 214, 349.
Cuxton, 125, 135.
Dachurst, 304.
Dale, 234.
Darby's Court, 339.
Darent. 132, 319.
Dartford, 185, 190, 319.
Davington, 99, 394.
Delce, 202, 208, 209,
Densted, 263.
Diven, 200.
Doddington, 367.
Dupton, 305.
Eastbridge, 282.
East Home, 381.
Eastlin^, 351.
East Preatoti, 305.
Eastry, 20, 70, 108, 247.
Easture, 200, 219.
Eastwell, 131, 210, 299.
Eatonhridgi^ 304.
Ebeney, 402, 405.
Ecclee, 202, 341.
Egerton, 397.
Eggarton, 111.
Elham, 170, 351.
Elmsley, 193.
Elmstow, 335, 404.
Elnothington, 292.
Eltham, 381.
Elvyland, 6, 229.
Ensfit Id Phict.', 98, 304.
Erith, 307, 308.
Eslingham, 305.
Ewehurst, E. and W., 98.
Eynsford, 351.
Eythorue, 306.
Falkham, 78.
Farleigh, East, 18, 70, 243, 247,
269, 273, 292.
West, 37.
Fumborough, 202, 339.
Famitic^huTii. 70, 247.
Faversham, 146, 191, 193, 393.
Fishbourne, 292.
Folkstone, 16.
Ford Place, 98.
Fordwich, 147.
Foxgraye, 315.
Frenshum, 202, 339, 375.
Frindsbuiy, 108, 150, 338.
MENTIONED IN THIS TREATISE.
XVll
Frinsted, 317.
Frittenden, 299, 392.
Fnlbrook, 360.
Garwinton, 335.
Gatton, 321.
Gaysum, 391.
Gillingham, 229, 334.
Godden, 402.
Goddington, 202, 338.
Godmersham, 70, 396.
Godfiland, 200.
Godwinston, 337.
Goodneston, 337.
Gore, 263, 353, 370.
Goudhurst, 193.
Grandisons, 191.
Graveney, 128. 393.
Gravesend, 205, 309.
Hadlow, 304, 395, 406.
Halden, 374.
Hailing, 135.
Halstow, 193.
Halton, 357.
Ham, 292.
Hammill, 202.
Harbledowne, 48.
Hardres, 128, 257, 304.
Haringbrook, 404.
Harrietaham, 296.
Harty, 102, 292, 306, 340.
Hastingleigh, 299.
Haugh, 219.
Havenden Court, 98, 304.
Hawkhnret, 76.
Hawley, 27.
Haydhunt, 194.
Haydon, 131.
Hayes, 211,213.
Headcorne, 392, 396.
Henhurst, 304.
Hever, 211, 214.
„ Court, 325.
Hinxhill, 298.
Hoade Court, 322.
Hockenden, 382.
Hoking, 299.
Hollingbourne, 70, 133, 317.
Hoo, Little, 320.
Horsmonden, 184, 234, 300, 403.
Horton, 234, 299.
Hougham, 200.
Howfield, 400.
Hull, 335.
Huntingfield, 200.
Hunton, 184.
Hurst, 200, 228.
Hyltb, 318.
Ickbam, 401.
Icking, 331.
Ifield Court, 325.
Ightbam, 319.
Ivechurch, 389.
Iwade, 397.
Kemsing, 339.
Kenardington, 297, 321, 404.
Keynsbam, 366.
Kidbrook, 381.
Kingsdown, 264.
Kingsmarsb, 321.
Kingston, 200, 292, 305.
Kitcbengrove, 324.
Knockbolt, 211, 212.
Lamberburst, 293.
Langfield, 78.
Langley, 351.
Langport, Old, 301, 397.
„ New, 399.
Lee, 381.
Leeds, 90, 299.
Lenbam, East, 18, 269.
Leveland, 299.
Lewisbam, 118.
Linsore, 257.
XVUl
TABLE OF PLACES IN KENT
Lowden, 339.
Luddeaham, 200, 295.
Luddesdon, 202.
LulUngf^toiie^ 229.
Lydd, 301.
Lygh, 98.
Lympne, 269,
Lyminge, 234, 306.
Maidstone, 76, 234. 367, 405.
MaUing, 15, 293.
Kaplescorabe, 351.
Marden, 192.
Maxton, 200, 368.
Melton, 234.
Meopham, 1-5, 18, 33, 70, 78, 125.
Mere Court, 372.
Mere worth, 406.
Midley, 202, 389.
Milsted, 193.
Milton, 192, 196.
Minster, 37 75, 76, 135, 136, 145.
Moat (Harty), 102, 199.
Molland, 18.
Moningham, 318.
Monkton, 18, 135, 145, 267, 394.
Morgieu, 402.
Mottingham, 381.
Murston, 292, 309.
Nackington, 256.
Nagdon Marsh, 393 .
Nashenden, 208, 340.
Nettlested, 293, 318.
Newington by Sittingboume, 143,
193, 292.
„ Bertram, 341.
Fee, 341.
Newton, 320.
Norsted, 328.
Northbome, 138.
North Court, 200, 202.
„ Fleet, 234.
Northwood, 320.
Norton, 202, 292.
Okeridge, 394.
Ores, 400.
Orkesden, 340, 398.
Orlestone, 301, 425.
Orpinton, 16, 80.
Ospringe, 6, 209, 229.
Osterland, 18, 404.
Otford, 119, 127, 234.
Otham, 292.
Ottert)oole, 396.
Overhill Farm, 232.
Overland, 404.
Overneys, 211.
Owlie, 335.
Oxenhoath, 228, 355.
Oxsted, 355.
Padlesworth, 202, 208, 397.
Palstre, 208.
Patrixbome, 354.
Peckham, East, 18, 70, 117, 269,
407.
„ West, 225, 406.
Pembury, 406.
Penshurst, 33, 98, 391.
Perry Marsh, 321.
Petham, 234.
Pettes, 234.
Pimpe, 293, 295.
Pising. 292.
Placy, 200.
Polton, 264.
Poole, 133.
Portbridge, 190.
Pothery, 211.
Poynings Marsh, 393.
Pullens, 185.
Queen Court, 209, 350.
Reculver, 234.
Redleaf, 98.
MENTIONED IN THIS TREATISE.
XIX
Rendsley, 98.
Kepton, 334.
Ripley, 305.
River, 227, 266.
Rochester, 161.
Rodmersham, 260.
Rucksley, 98.
Rusthall, 95.
Saltwood, 234.
Sandwich, 20, 70, 147, 247.
Sarre, 136.
Scotgrove, 370.
Scale, 227.
Seasalter. 75, 76.
Seaton, 227.
Sellindge, 339.
Sellinge, 397.
Sevington, 260, 318.
Sexmanshill, 400.
Sextries, 256.
Shebbertswell, 302.
Sheldwich, 257, 304.
Shelford, 339.
Sbillingheld, 200.
Sholand, 292.
Shoreham, 110.
Shome, 227.
Siberstone, 200.
Sissinghurst, 393.
Sittingboume, 193.
Smallhythe, 208.
Saave, 334.
Snavelees, 334.
Snodland, 78.
Sotmere, 349.
SoQthaU, 399.
Stalisfield, 302, 339.
Standen, 299.
Staplehurst, 395.
Stistead, 16.
St. Nicholas, 136.
St Peter's, 136.
Stockbury, 193, 202, 315.
Stodmarsh, 334.
Stokenbury, 243.
Stonar, 136.
Stone, 319.
Stonepit, 306.
Stoneplace, 319.
Stowting, 118, 268, 352, 395.
Sturry, 219, 333, 401.
Sundridge, 211.
Sutton Valence, 265.
„ East, 336.
Swade, 260.
Swalecliffe, 335.
Swanscombe, 52,202, 305, 319, 354.
Swingfield, 330, 350.
Tappington, 200.
Tenterden, 76, 402.
Teynham, 234, 295.
Thanet, 37, 70, 75, 127, 132, 187,
247.
Thomdenn, 18.
Thurston, 315..
TiUade, 321.
Tinton, 143.
TirHngham, 299, 340.
Tonbridge, 98, 196.
Tong, 193,260,292.
Tottington, 341.
Tremworth, 111.
Tringston, 115.
Trottescliffe, 125, 135.
Tunbridge Wells, 95.
Tunstall, 193, 292.
Ulcomb, 298.
Upchurch, 351.
Vielston, 234, 304.
Wadeslade, 360.
Wall, 219.
Waltham, 234.
Warehome, 70, 143, 256.
Watringbury, 78, 202, 265, 305.
XX
TABLE OF PLACES IN KENT, &C.
Wavering, 232.
WeU Hall, 381.
Wellstreet, 391.
Westbere, 401.
Westberies, 316.
Westerham, 391.
Westgate, 234.
Westhalimote, 234.
WestweU, 63. 70, 247, 255.
Westwood, 299.
Wetherlings, 200.
WichUng, 314.
Wilmington, 233, 345.
Wincehurstden, 194.
Wittersham, 835.
Wolverton, 341.
Woodchurch, 136.
Wood's Court, 303.
Woolwich, 381.
Wormsell, 315.
j Wotton, 202, 394.
I Wrensted, 314.
I Wrotham, 131, 234.
Yaldham, 319.
Yalding, 184, 304, 315, 337.
Yokes Court, 320.
„ Place, 226.
THE Tlf]^URES OF KEIS^T.
CHAPTER I.
The Liiiiits of Gayelkmd in Kent.
Uncertainty in Kent as to what lands are held in GmreDdnd. — ^Antiquitr
of the law of real property in this County. — The law of Gsrdkind
a fragment of the old Common Law. — Expense and difficulty caused
. by unc^tainty as to Tenure. — Much land supposed wron^y to be
Gayelkind. — Xo lapse of time can alter its nature. — General rules as
to Kentish Tenures. — What was not GaTelkind at the Conquest cannot
be now dealt with as such. — £xcepti<Hi to this rule. — ^What was
Gavelkind at the Conquest is so now. — Presumption that pnwUi facie
all lands in the County are of this nature. — ^Extent of lands which
were nerer GrayeUdnd. — Lists of these lands taken in each reign while
the Feudal System remained. — These recwds still p reaerred. — Un-
certainty as to Tenure now removed by the publication of the reeords.
— Distinction between superior and inferior Tenures. — Spiritual Tenure
of free alms or Francalmoigne. — Military Tenures. — Barony. — Kni^it-
service. — Seijeanty. — Castleguard. — Military Tenants of Ancient De-
mesne. — Inferior Tenures. — Ancient Socage or Gavelkind. — Socage
which is not Gavelkind. — Copyhold. — Petty Seijeanty. — ^Burgage. —
Gavelkind Tenants of Ancient Demesne. — Effect of the dissolution
of Monasteries. — Lands held in ancient Francalmoigne are not now
Gavelkind. — ^Lands held by an ancient military service are not Gavel-
kind. — Effect of the abolition of Feudal Tenures. — Tenure of wastes
and common lands. — ^Demeaie lands. — Advowsons. — Some are Gavel-
kind. — Manors without demeaie.
^HERE are few subjects of equal importance on which
so little has been published — for much has been writ-
ten at various times — as that of the Tenures of Kent. Yet
an accurate knowledge of them is equally valuable to the
lawyers and the landowners of that county, and to those
who study the old law generally.
2 The Tenures of Kent. [chap.
Dividing the real property of Kent into two classes, the
larger including all that is gavelkind, the smaller all that
is not, we find that several books ha^e been written about
the former, and hardly anything about the latter. In most
parts of England no great accuracy of knowledge con-
cerning the once important theory of tenures has been
requisite since the abolition of the feudal system. But
in Kent land can hardly be dealt with safely, no title can
be made perfectly clear, without some knowledge of the
law respecting tenures, many of which are obsolete.
The reason for this may be found in the law respecting
the tenure and customs of gavelkind. Nothing is more
clearly established than the rule that lands which were
originally held in socage are gavelkind, and those alone.
It is true that in cases of doubt a common presumption
is applied: all lands in Kent are presumed to be gavel-
kind until the contrary is proved. But this presumption
does not dispose of the difficulty, although at one time
it was very useful.
An extract from the " First Keport of the Eeal Property
Commission" will explain this to a great extent.
Mr. Bell, K.C., a high authority upon all questions of
Kentish law, was asked this question : —
" Is there any prevailing uncertainty as to what estates are
subject to gavelkind or not ?"
He answered, "I think it very probable that questions may
arise upon the subject ; you find it generally laid down that all
lands in Kent are gavelkind, imtil the contrary is proved, and
it is said that such proofs cannot be given. I bought an estate
the other day, where it was perfectly clear it was not gavelkind.
I have purchased three estates in Kent, where I am perfectly
satisfied, that none of them are of gavelkind tenure ; and now
that the records are thrown open by the ParUamentary Com-
I,] The Limits of Gavelkind in Kent 3
mifisioners, I have no doubt many more such questioDS will be
found to arise/'
''Are there not some estates in Kent that never hare been
gavelkind ; that have been held in capite P*
** I have no doubt there are. But there is one description
of land upon which the question has arisen, viz. monastery lands
that were held not in gavelkind, but in free alms. I do not know
whether there are many lands that have been held im eapiie, but
there are many that have been monastery lands."
There are several things in this evidence specially to
be remarked.
First, that at the time it was said that proofs to rebut
the presumption of gavelkind could not be produced,
but that this was not true according to Mr. Bell's own
experience.
Secondly, that he anticipated the rising of many ques-
tions, and the finding of many such proofs, when the
records should be fully opened to the public This has
been the case to a remarkable extent. Several questions
have arisen, and there is a fiacility now which never ex-
isted before for solving them vrith readiness.
For the tenure of every estate in the county is recorded
80 exactly in a series of records from the Conquest to
modem times, that the limits of gavelkind tenure may
be defined in each parish, and in each manor. It may
be asked, why has not all this been done long ago? and
the answer is not difficult to find.
Until the abolition of the feudal tenures it was neces-
sary to record what land was held by the Church in
free alms or by military service, and from what lands
in the ownership of laymen the feudal perquisites were
due to the king and other lords. This was continually
done throughout the whole county, not only by the
b2
The Tenures of Kent. [chap.
royal escheators and feodaries, but by means of sheriffs'
and coroners' inquisitions, and especially of the inqui-
sitions post mortem. From these last records we get the
verdict of a jury in each case summoned after the death
of an owner of land, who declared upon their oath all
the particulars relating to the tenure and the amount of
his lands, the services by which they were held, the
name, age, &c. of his heir or heirs, and many other im-
portant items; their verdict was returned to the Court
of Chancery, the source of the writ upon which it was
taken, but copies were also returned to the Exchequer
in most cases; these records, in the words of a lately
published and valuable work, brought out by direction
of the Master of the KoUs, (the Calendarium Genealofficum,
edited by the Secretary of the Public Eecord Office,) "are
of such superior import, that they have been styled the
* Proprietary Map of England,' and for genealogical, topo-
graphical, or biographical purposes, are not surpassed by
any other class of our ancient records."
• They are especially valuable as regards Kent, for by
means of them most questions of tenure in the county
could be settled. They contain the history of each
estate in Kent, from the reign of Henry III. to that of
Charles II.
But they are by no means the only source of our infor-
mation. Omitting for the present a consideration of such
valuable records as "Domesday Book" and the Testa de
Nevilj we know that it was usual to compile an exact
account of all the military lands in each county for the
use of the officers who collected the feudal dues.
Such a report, based upon those earlier authorities,
was made for Kent in 20 Edw. III., being "The Book
of Aid," continually quoted by all the historians of the
I.] ITie Limits of Gavelkind in Kent. 5
county. This book was used in subsequent reigns as
the standard or canon for distinguishing ancient gavel-
kind from ancient military lands ; and it was the business
of the king's * feodaries ' to note all changes of name, all
divisions of ownership and services in the lands therein
described. This was done in a specially accurate manner
by Cyriac or Shidrach Petit, a well-known authority in
Kent, in the reign of Henry YIII., by means of his own
researches, and the accumulated labours of his predecessors
in office. The book compiled by him, which is a record
of authority, not to be refused in any court, was used to
some extent by the chief writers on Kent, as Hasted, Lam-
barde, and Philipot. In some MS. memoranda by the first-
named author, it is cited as one of the books necessary for
a knowledge of the tenure of each estate in Kent.
But when the feudal system was abolished it became
mmecessary, through the greater part of England, to con-
tinue this series of records. It was apparently neces-
sary for Kent that something should be substituted for
them, which should still record the limits of each tenure,
and the total amount of gavelkind ; it may be that a mere
publication of the former lists would have sufficed to pre-
vent confusion ; but neither of these courses was followed.
The consequence has been that for a long time the tra-
dition of these boundaries has been lost, only to be found
again in each case of a dispute with such expense and
trouble, that in several instances it has seemed expedient
to compromise the matter between all the parties in-
terested, rather than enter on a tedious and doubtful liti-
gation. Had the subject of Kentish tenures been duly
investigated, there would have been few disputes, and no
necessity for these compromises; which, after all, cannot
alter the nature of the land in the face of direct proofs
The Tenures of Kent. [chap.
found afterwards ; so that, as regards future owners, the dis-
pute might arise again on any dealing with the property.
Thus we see that the question was settled long ago, and
in fact is settled now, though for a time the matter has
been in practice neglected. And yet not continuously or
systematically neglected ; for from time to time these dis-
putes about tenure have come before the courts of law,
and whenever this has happened, the old authorities and
the old traditions have been sustained and enforced.
It is unfortunate that these cases have either not been
reported at all, or only published in a meagre and im-
perfect form.
The continued litigation [NoeVs Case) about the manor
of Elvyland in Ospring, where it was found that land
anciently held by military service, and turned to socage
as early as the twelfth century, was not gavelkind, had
to be collected piecemeal from the early pleas of the
Crown.
The case of De Bendings v. the Prior of Christ Churchy
has not yet been published, except in an imperfect and
unofficial form ; an " apograph " of it having been ex-
tracted from the Canterbury archives by Somner. This
will be given at length in a later chapter, when it will
be SQcn that a modern decision {Doe d. Lushington^ v. Llan-
daff) confirms its authority, instead of impairing it, as
has been sometimes said.
The important decision respecting the freedom of some
ancient demesne [Humphry v. Bathurst\ is reported in
the books, but so slightly as to have been of little use;
the judgment in Gouge v. Woodin^ so often cited by Eobin-
son, has only been paraphrased in a county history ; and
the litigation as to ancient military lands, tenure by castle-
guard rents, &c. in the case of the Earl of Sussex in 1706
I.] The Limits of Gavelkind in Kent 7
and 1709, has been hitherto unreported, except as to some
comparatively unimportant points.
There are many other decisions mentioned in the fol-
lowing chapters, which are most important to the whole
county, and to the owners of particular lands, which some-
times from necessity have been either unknown or dis-
regarded of late years.
And now as to what has been written on the subject
of gavelkind. Mr. Robinson's learned treatise contains
the law on this head, or almost all; but it must be re-
membered that he confined his attention to gavelkind, and
did not attempt to discuss the law of the other tenures
in Kent. This will be more fully noticed in another
chapter ; meanwhile, any one will see its truth who reads
his short chapter headed, "What lands in Kent are of the
nature of gavelkind '." He had several reasons for this :
among others, a phrase in the act 18 Hen. VI. c. 2, and
the difficulty and expense of searching the records, when
he wrote his valuable book; add to this, that till it was
written there seems to have been a common idea that
gavelkind tenure was much less widely spread, than we
now know it to be, in the county. The later editors and
commentators on his work have also confined themselves
as closely to the subject of gavelkind lands, as this small
treatise is meant to be confined to those which have never
been of that nature.
The works of Lambarde arid Philipot are almost as
valuable as the " Treatise on Gavelkind ;" the first to the
lawyer, " though perhaps too closely confined to the points
in the * Kentish Custumal ;' " the latter, both to lawyers
and those interested in the family and county history
of Kent.
* Book i. c. V.
8 The Tenures of Kent [chap.
But Lambarde, who possessed immense learning on
these points, (in his own words): "As to the feodaries
and tenures of land, and such other hidden things,
though somewhat might have been severally said con-
cerning them, yet wittingly and without touch leaped
over them all."
Moreover, when he wrote the "Perambulation," there
was little need of such a discussion, as it was very well
known to all the county which land was gavelkind, tod
which descendible at common law. His collections, how-
ever, of notes and extracts relating to Kentish tenures,
are still most valuable.
Somner's " Inquiry into Gavelkind " is full of interest
and information, but he was no lawyer, and would not
engage in anything but a history of gavelkind in early
times, avoiding as much as possible all "points of com-
mon law."
Nor can we gain any certain guidance from Hasted's
" History of Kent," which is useful in a multitude of ways,
but deformed by constant inaccuracies in matters of tenure
and family history. Thus hitherto there has been no gene-
i-al guide to the lands of Kent which are not gavelkind,
except records difficult of access till now, and decisions
hardly in any case reported. To provide such guidance
would be a lengthy and laborious task, which it is hoped
that the following chapters will induce some capable
person to undertake. •
The chief objection to the practice of treating gavelkind
separately, and not as one part of the Kentish system
of tenures, has been this; the principle of law, which
determines the true extent of each tenure, is obscured,
and the rules growing from it become to all appearance
mere empirical maxims, based on no perceptible reason.
:t.] ne Limits of GisteOtimd im Kent. 9
A few sentences will explain the prinei{^, <rif whidi
the following chapters are an exposition.
We are compelled to return to the earliest portions of
our history to find the true reason for one piece of land
being held in garelkind^ while another descends to the
eldest son.
Taking a period dtortlj before the Conquest^ we find
that the cultivated lands of Kent were of two kinds,
allodial and socage. The first was held by the king, the
Church, the nobles, and gentry ; the rest by fanners and
husbandmen. We are now not con^dering folk-lands,
ancient boroughs, socage land leased to the Chiffch, kc^
but only considering the broad and general diristco of the
soil. About one-third was allodiaL and the rest socage.
All the socage was " garel-land,^ in the sense of free-
hold, owing rent, and senriee, but only the supericH' rillam
or cearb had the priril^es which we attach to tenure in
gavelkind; but it will be shewn later that within the
course of a few reigns after the Conquest the inferior
labourers on the demeaies (icrdarii) receired these pri-
vileges.
In the eleventh ooitury the system of manors was
borrowed, probably from the Xormans ; since which time
we may take another form of division, and say that one
part of the county was held in demesne by the lord, and
the rest distributed among the socage tenants of the
manor.
But on examination it appears that these two modes
of division are in reality the same. For the demesnes
correspond with the free aliodium^ and the tenemental
portions of all the manors with the gavel-land or gafol-
land of which we spoke.
So that at the Conquest (me-third of the cultivated lands
lo The Tenures of Kent. [chap.
were held by a tenure superior to socage. In the Con-
quest the law of real property in Kent was not much
altered, a special privilege gained by the early submission
of the province. Those who held in socage were allowed
to retain their gavelkind liberties.
There was naturally a great change of owners, but it
was personal, and the old boundaries of the demesnes and
the socage were not disturbed, as may be seen by " Domes-
day Book."
But the allodial tenures were all made feudal, except
where certain monasteries were permitted to retain the
old tenure in free^ms, or francalmoigne.
Henceforth the king, the Church, the nobles, and gentry,
held their manors and demesnes by feudal tenures. Some
held in barony, some by knight-service, others by service
of castleguard, others by grand serjeanty; and all that
owed these services of chivalry are now called in Kent
" ancient knight-service land." Manors which were part
of the ancient demesne of the Crown in the hands of
subjects were equally held by a feudal tenure, except as
to their ancient socage portions.
The rule of law has always been that what was then
feudal or held in free alms is not gavelkind. But that
no encroachments might be made on the lesser tenure,
until proof to the contrary is produced, any particular
land ^haX[ prima facie be taken to have been gavelkind.
The proposition then from which we start upon our
enquiry is this. Only those portions of a manor are
gavelkind which were anciently held of it in socage.
No conversion of a higher tenure into socage can impose
gavelkind qualities. Such conversions came about in many
ways ; for instance, the services of a military tenant were
changed to those of a petty serjeanty, a tenant in free
I.] TJie Limits of Gavelkind in Kent. 1 1
alms alienated for a fee-farm rent, a new grant of the king
was made tenendum in socage, or the same thing was done
by a special act of Parliament ; lastly, when the fendal
tenures were abolished, all the military lands came to be
held in free and common socage. But none of these
changes affected the boundaries of gayelkind.
Therefore, in brief, the manors and demesne lands
proved to have been held from the first by a tenure
superior to socage are not gavelkind.
Moreover, as is shewn in the books and by modem
decisions, the rents-service arising out of gavelkind land^
so long as they are unsevered from the manor, descend
with it in the same way as the demesnes.
Besides this, the advowsons^ whether still appendent
to the manor and demesnes, or held in gross and at large,
are descendible in the same manner as other tenements
which were not oi^inally socage. Where the manor and
demesnes were not gavelkind, the advowson originally
appendant to them cannot now be partible in des^cenU
The lord's waste in each manner is of the same tenure
as his demesnes. Therefore the portion kep^t in almort
all the manors of Kent for the roads and the commooii
has never been gavelkind, whether now approved or en-
closed, or still treated as waste. None of the hfAme» and
gardens on the waste of the manors given at finit in
knight-service or free alms are gavelkind.
But there are manors, or reputed manor;, crests \^f/r^
the statute Quia Emptcresf^ which vere carved oat in <^y
times fix)m the "ancient socage^ portionii of nnp^f/r
manors held by a higher tenure. Sxu:h are gavelkir^ n/yw,
with their demesnes, advowson.*, and other s^purt^iaEDi/;^.
It will also be found that «ome manor^i ar>^ d^r^^ty^/l
in "Domesday Book^ as having at that tim^ n^> dern^Mie.
12 The Tenures of Kent, [chap. i.
In these eases we should argue that the manors them-
selves are now common socage, but that all the land,
though taken into demesne at a later time, is gavelkind ;
and by sundry verdicts we find that this has always been
known. In one instance, extracted at length below, a jury
found that the manor was held by ancient knight-service,
but that the demesnes, and all the rest, were partible
among the heirs male, and this was one of those described
in "Domesday Book" as having at the Conquest nihil
in dominio.
CHAPTEE n.
Tenures in Kent befbfe tlie Gonq[iiB8L
The ancient laws of real propertr ; Crownland, Falkland, BookLuid. —
Koitisii manors held in Francalmoigne. — Form of the charters of
donation. — ^The Trinois Xe€tt9it4u,--Qaeen Edith's gift to Christ-
ehnrch. — ^Franchises. — Sac and Soc. — ^MilitarT services. — ^Three classes
of Thanes. — Allodial tenants. — Drengs or Throngs; tenure of their
lands.
We have seen that immediately before the Xorman Con-
quest Kent was divided between the king^ the Church and
the great thanes. Their estates were further subdivided
into the demesnes which remained finee^ and the tributary
portions granted to tenants in socage. When the tenures
were feudalized, the relative proportions of the free and
tributary lands were not altered, and they have not since
then been affected by any of the changes in the law of
real property.
But the division of the soil between the king, the noble
classes, and their tenants, was comparatively of late growth,
la earlier times a different principle prevailed; the land
had then been broadly divided into crownland, folkland,
and booklandS
Folkland was the property of the people, and could not
be held in perpetuity. It might, indeed, be occupied in
common by the freemen of the district, or even be pos-
sessed in severalty ; and in the latter case it was probably
parcelled out to individuals in the folk-gemote, or court
of the district, the grant being attested by the freemen
* " Prsedia Saxones duplici titulo possidebant : vel scripti auctoritate,
quod Bookland Tocabant, vel populi testimonio, quod Folkland dixere.** —
{Spelm., Gloss,, ' Bocland:)
14 Tlie Tenures of Kent. [chap.
present. But while it was folkland it could not be aliened
in perpetuity, and therefore, on the expiration of the term
for which it was granted, it reverted to the community,
and was again distributed by the same authority^.
It was liable to the universal imposts of the land-tax,
and the trinoda necessitas^ or contribution to build bridges,
roads, and castles, and towards repelling invasion, and to
the special payments of aids to the sheriff, fees to the
alderman, and purveyance in every shape, the tenant hav-
ing to provide food and lodging for the king and his
nobles when journeying, and to maintain their servants,
♦ Heming, houuds, hawks, &C.*
58. ' ' In course of time the freemen ceased to grant the folk-
land, which was now supposed to be held in trust for the
t Kembie, freemen of the shire, by the kinoj and his council t. This
Codex DU . \ '^ ^ . ' .
piom. ii. 9. was only an intermediate step to the theory which obtained
when the Normans invaded England, viz. that the folk-
land, called terra fiscalis when held by the king in trust,
had become the absolute property of the Crown by as good
a title as the lands originally set aside as crownland. It
was therefore taken by William I. as the successor of
Edward, and such portions as he did not immediately
grant away are now the ancient demesne of the Crown.
Bookland was of an entirely different nature. In its
strictest sense it is applied to lands given by "booV or
deed, but in common use it meant all lands aliened in fee,
whether by a formal deed, or by the symbolical delivery
X steph. of a rod, a turf, or a horn J. It might be alienable or not,
Blacks, i.
501.
*» Allen, ** Rise of the Prerogative," 142. In this explanation Hallam,
Palgrave, Thorpe, Spence, and Kemhle concur, "so that we may now
consider this interpretation as in possession of the field." See ** Middle
Ages," ii. 294, &c. For older explanations now held to be incorrect, see
Somner, Gar. 87, 112, 114, 126, Co. litt. 6 a; Dalrymple on Feuds.
II.] Tenures in Kent before the Conquest. 1 5
according to the terms of the original donation, the gene-
ral rule being that the intention of the donor must be
observed *".
The king or queen might have alienable booklands, but
the bulk of their estates had been allotted to them by the
nation, and therefore could not be disposed of without the
consent of the Council. Without this the grant was void.
Baldred, the last King of Kent, gave the manor of
Mailing to the Church of Canterbury in free alms, but
omitted to gain the consent of his, nobles. This was
remedied by Egbert, who confirmed the deed in these
words, A.D. 838 : —
" Egbert, and Ethelwolf his son, give to the Church of Christ
at Canterbury, Mailings, which manor Baldred gave before to the
same church, but inasmuch as it was without the consent of the
great men of his kingdom, that grant could not stand*/* ♦ Spelm.
And in the same way the gift of Queen Edith or Ediva Worka,
•^ ^ 234;Somn.
to the monks of Christchurch, by which many of the lands Qav. 112.
of the cathedral are now held, contains " the licence and
consent of the king, attested by the bishops and nobles f ." t Kembie,
Bookland might be held by laymen, though at first vi. 44.
charters were only granted to the Church. Then laymen
obtained land on equally free terms on condition of build-
ing churches, and at last (between the reign of Edwy and
the Conquest) it became usual to dispense with any such
conditions J. X Speim.
... Engl.
In the hands of a layman it was alienable inter vivos and Works, ii.
by devise**, though the devise was supposed to be allowed bieUngio^
Sax. in
England.
« Laws of Alfred, 37, tit. Boc-launde; Spelm., Glossary; Somner,
GaT., 87 ; Kembie, Codex Diplomaticus, i. 30.
* Ab to the early law of devise in Kent, see the will of one Birhtric of
Mepham, extracted at length in Lambarde's '* Perambulation," 492. It
was produced by the court as a precedent for devise of lands in Kent, in
i6 The Tenures of Kent [chap.
by special favour of the lord, to whom therefore a heriot
was bequeathed " that the will might stand."
The heriot of a freeman was usually a gift of arms, as
the name itself signifies. It was at first voluntary, but
afterwards became necessary. It differed in nature both
from the Norman " relief, '^ which took its place, being
a payment by the incoming heir, instead of by the de-
ceased owner's will, and from the heriot- service and
heriot-custom now existing on certain inferior freeholds
and copyholds ®.
Although bookland was generally held in fee, it was
forfeitable to the king for misconduct in battle, a case in
which an allodial tenant in France or Germany would
♦ somn. have only incurred the fine for cowardice or heribann *.
Ling. Hist. Bookland was sometimes granted merely for a life or
Lawiof lives, or in a species of entail male, in which case the
Ss"^'*'' remainder was almost always limited to the Church in
free alms for ever. See an old will dated a. d. 1046, ex-
tracted by Somner from the Canterbury archives, where
land in Stistead is left to two persons for their lives, and
afterwards to the Church in francalmoigne ; and a deed
by which Canute granted Folkstone to a priest for life,
with remainder to Christchurch'.
But most of the booklands in England were held by the
Launder v. Brookes, Cro. Car. 561. See also a devise of lands to
the monks of Christchurch, (at Apledore, Orpinton, &c.,) Somn., Gav.,
App. xxiii.
• Heriots were first mentioned in the reign of Edgar, and first regu-
lated in that of Canute. 2 Bl. Comm. 423; Selden, ii. 1620; Middle
Ages, ii. 416; Laws of Canute, c. 69; Coke, Copyh. 23; Bract, ii. 36.
*' Heriottum magis fit de gratia quam de jure.** Stcph. Bl. i. 628.
' Dart, Hist. Canterbury Cathedral, App. i. ; Cotton MSS., Vitellius,
D. 7; Somn., Gav. 12, 13, App. xxii. ; Domesday, 59 b, 72; Homing,
Chart. 248.
II.] Tenures in Kent be/ore the Conquest. 1 7
bishops and their monks in common in francalmoigne, and
this was especially the case in Kent, where the Church
held a large proportion of the land as late as the dissolu-
tion of the monasteries.
The deeds by which this tenure was created were in
general exceedingly simple, the old books describing it
merely thus : " Erancalmoigne, or free alms, is when lands
or tenements were bestowed upon God, i.e. given to such
people as were consecrated to His service ♦." It was not ♦ Co. utt.
until much later times (probably the beginning of the
reign of Henry II.), that any legal formula, such as "free,
pure,' and perpetual alms," was demanded from the donor
in francalmoigne. The gift before the Conquest was
usually made Deo et Ecclesice^ with the addition in some
cases of such clauses as " for the good of my soul," " for
my own and my ancestors' souls," and the like.
Many of the deeds were more complicated, and com-
prised six parts, viz. an invocation, a "movent clause,"
or preface, the grant itself of lands, commons, and ease-
ments, (and in the time of Edward the Confessor, a long
list of territorial franchises,) the sanction, date, and tes-
tatum '\\ tj«?>\^
> Cod. Dipl.
» An example of the simpler kind of deed is found in Thorn {Deesm
Scrtptores, 2225): "Ego Wulfstanus cognomine Wild Priest , annuente
domino meo Ardiknuto, concedo ecclesi© Christi in Dorobemii terram
patrimonii mei nomine Turroch.** Another of a more formal kind is
given by Heming. It was a deed of Athelstane dated a.d. 930, in which
it was said, ** Let this land remain free for ever so long as the Christian
religion remains among the English in Britain; let it be free from all
burdens of human service, and from all secular payments and dues ; let
it have all advantages, commodities, &c., of right pertaining to the said
Church, in the. land,' and all woods, fields, meadows, pastures, streams,
Ac., fhtee things only excepted, viz. freedom from repairing bridges,
roads, and castles, and from repelling an invader." — {Heming^ Liler de
rMUihui EccIm, JTigom., Cott. MSS., Tiler, A. 13.)
C
1 8 The Tenures of Kent [chap.
A large estate, comprising Mepham, Cowling, (East)
Lenham, Aldington, Monkton, (East) Peckham, and (East)
Farleigh, was given to the monks of Christchurch, by
Queen Eadgifu, or Edith, the daughter-in-law of Alfred
and stepmother of Athelstan. The deed itself was lost
by fire in the twelfth century, but a copy of it is in the
register at Canterbury, and was also copied from the Lam-
beth MSS. into the Codex DiplomaUcus. It is confirmed
by her son King Ethelbert and his witanagemote ^.
No set form, as has been said, was used in these deeds,
"but only honest and perspicuous words to express the
*• After giving a long account of her troubles respecting the possession
of these lands, the Queen proceeds thus: ''Anno incamationis 961, Ego
Eadgyva regina et mater Edmundi et Eadredi regum pro salute animse
mesB concedo Ecclesise Christi in DorobemiA monachis ibidem Deo ser-
vientibus has terras Meapeham Culinges Lenham Pecham Femleigh Muncee-
ton Ealdinton liberas ab omni seculari gravitate exceptis tribus pontium
et arcium constructione expeditione. Ego autem licentiA et consensu
illius {Edgar) testimonioque omnium episcoporum et optimatum suorum
onmes terras meas et libros terrarum (land-books or title-deeds) propria
manu me4 posui super altare Christi qiuB posita est in Dorobernia. Si
quis,'' &c. Confirmed by Ethelred, &c. \cod. Bipl. vi. 44.) "On the stair-
case leading to the library is a very ancient picture representing Queen
Edyve in her robes, with crown and sceptre. At the bottom are the fol-
lowing lines in old characters : —
'' €Ht^ i\t gooh quten anb nobit mutter
So (b\!^t\%i'mt (Bbmnitb anb €breb
j^ings of (Bnglanb, ebtrg ear^ after ol^er,
So Christ's ft^urc^ of (Kanterbarji "^Ha gibe xnbjtJtb
ISfonhion anb C^ornbeim, i\t monks i^ert iz fceb,
Ptp^am, cube, Cofolinge, ®8terlanb,
6a8tfarleg^ aitb '^txCt^^xo,, as foe beliebe
In i\t gear PI$|.
•f C^isl'B inearnalion;— (i>ttwromJ<?, Bezcr, Cant. Cathedral.)
In this inscription not only the date is wrong, but the gift of Cleve
(i.e. West Cliff, Holland and Bury Court), Osterland and Thomdenn is
wrongly attributed to Queen Edith. They were given a century earlier,
by Offia, to Christchurch, in free alms.
II.] Tenures in Kent before the Conquest. 19
thing intended with all brevity*." It would therefore ♦ speiman,
be surprising to find that two or three which have come w^ka,
down to us are grants " in puram liberam et perpetuam ^^
eleemosynam," a phrase which is an anachronism, if we
did not remember that these are Latin versions of English
originals, or rather in all except one case forgeries f ^ f KemWe,
The booklands of the Church were exempt from all^^'^^^*
services, except the Trinoda Necessitas J, (or, as it was j KemWe,
variously called, labor communis j ontcs commune^ ^^^^^^i. 11. *^'
incammodumy Sfc.^) which was not a service connected with
tenure, but the duty of every citizen.
Whether it was a county-rate, or in whatever way it
was enforced, it is certain that every Englishman in
person, or by deputy, was bound to raise and keep up
roads, bridges, and castles, and repel the invaders of the
country. In this respect the lands of the Church did not
differ from those of the lay nobles and gentry § ^. § steph.
Blackst/i.
228* Sel-
* Spelman gives one of them at length, beginning " Ego Edgar totius dg^ 'jg^^
Britanniae Basileus," &c., (Concilia, i. 443). The others are taken from ». 42;
the Chronicle of the false Ingulf, now admitted to be a forgery of a later .^^^P^^
date, though apparently Savile and Spelman admitted its genuineness
without any doubts. It has been lately described as '* a monkish forgery,
with its charters composed in the scriptorium, its general history a patch-
work of piracies, and its special anecdotes all fictitious." Sir Francis
Palgrave and Hallam (" Middle Ages," ii. 306) brought forward a great
many proofs of the forgery, which is probably of the fourteenth century.
But the Kentish writer, Somner, has not received enough acknowledg-
ment In his treatise on Gavelkind, pp. 81, 101, 102, he collected many
instances, which threw doubts on the genuineness of Ingulf. See also
Mr. Hardy's "Descriptive Catalogue of Materials for English History,"
ToL ii.
' Spelman curiously enough takes exception to any tenure being
perfectly free when the Trinoda Necessitas was due from the land,
fwgetting that it was from all alike. "The deed maketh the land to
be given in fimicalmoigne, and yet sheweth that they were tied to ex-
pedition against the foe, building of bridges, &c., yea, and calleth it
notwithstanding puram eUemosynatn^ whereas though in liberd eleemosynd
c2
20 The Tenures of Kent, [chap.
" A grant of land to the Church, saving only the three
•Seid. Tit. general duties, was ipso facto a grant in jfrancalmoigne ♦ ;
697; Kni'and the absence of such a saving clause has been con-
Edw. III. sidered by good authorities to be a mark of forgery in
25; Fitz. i „
Assize, every case \"
^^' Lands of this tenure in Kent were exceedingly common,
and they are very often denoted in "Domesday Book"
by the letters L. S. A. [Libera Sicut Adisham\ referring
to a grant of Adesham Manor to Christchurch "".
a rent in old deeds hath been sometimes reserved, yet can it not be
called pure if any rent or service at all be reserved to the donor." (Engl.
Works, b. 20.) He adopts a distinction made by Bracton, but not adopted
by later authorities, between free and pure alms. Co. litt., 97 a. We
may notice: (1.) That the deed of which he spoke was at most a Latin
translation, and in all probability a forgery ; (2.) That rent reserved
on a grant in liherd eleemosynd is void, (Bum's Eccl. Law, 232; Fitzh.
Mesne, Mic. 4 Edw. IV. 35; Hil. 13 Hen. IV., and cases cited in*
Co. litt., 97 a.) ; (3.) That the Trinoda Necessitas was not a service of
a tenure, nor reserved by the donor, but the common duty of citizens
of every tenure to the State.
* Lingard, Hist, of Anglo-Saxon Church, i. 244; Kemble, Cod^x
Diplom.y i. 10. There are some exceptions to the rule, the Trinoda
Necessitas having been occasionally remitted in the North of England,
but the abuse was soon checked. (Spelman, Concilia, i. 256 ; Bede, Eccl.
Hist., iii. 24, and JSpist. ad Eghertum, 309 ; Kemble, Codex Diplom.^
i. 161 ; Lingard, Engl. Hist., i. 243; Lcland*s Collectanea, iii. 54.)
This last writer asserted that in every part, except Kent, the three
great duties were occasionally remitted to the Church, but this was too
hasty an inference from a temporary practice of the Northumbrian and
Mercian kings. (Wilkins, Concilia, i. 100; Lingard, Hist. Engl., i. 344.)
°* King Ethelbald gave it in these words : " Manerium de Adesham ad
cibum monachorum cum campis pascuis silvis, &c. liberum ab omnibus
secularibus servitiis et fiscali tributo, exceptis istis tribus consuetudinibus,
expeditione, pontis arcisve constructione, id est, communi labore de quo
nullus excipiebatur." (Hjwted, iii. 670; Sandys, Consuet. Kancia, 102;
Battely's Somner's Antiquities of Canterbury, 26; Selden, Titles of
Honour, 697.)
The monks ventured upon an occasional forgery, e.g. a grant of Sand-
wich and Eastry, by Egbert, to the monks of Christchurch, free from
II.] Tenures in Kent before the Conquest. 2 1
While we are upon the subject we may notice that this
triple duty continued, and in some respect still continues,
to be imposed on lands in francalmoigne.
The prior of St. Oswald's proved that his land was given
free from all earthly service, yet it was held that he was
bound to repair roads and bridges "" *. * SeW.
In the same way the monks of Christchurch were Hon., 678;
bound to contribute to the repair of Eochester Bridge f, size, 445.
and when their monastery was dissolved, and their lands p^^^b"^
to a great extent given to the new cathedral of Canter- 382—390.
bury, the king's letters patent contained these words,
"that, lastly, the gifts of alms to the* poor, the repairing
of roads and bridges, and other pious offices of every kind
may increase and spread far and wide, we give and grant,
&c. to have and to hold of us and our successors for ever
in francalmoigne {in liheram puram et perpetuam eleemo-
synam **)."
In many instances, during the reign of Edward tte
Confessor, and almost universally during the reigns of
the early Norman kings i, the charters contain a full form j Kembie,
/ n . 1 1 . n 1 . ^ Cod. Dipl.
of words, confernng upon the donees m francalmoigne the i., Pref.
franchises of territorial jurisdiction, and of measuring and iml^. to*
imposing the fines appropriate to different crimes. The i. 275— ^*
standard for these fines appears to have been fixed once^^'
\he Trinoda Neceisitas, now in the library of St. John's College, Cam-
bridge, and quoted in the Monasttcon^ vol. i., Canterbury Cathedral. And
another, on which the abbey of St. Augustine's set great store, professes
to have been executed by Canute in favour of those monks ; but it is full
of anachronisms, and does not even allude to the Trinoda Necessitas.
Kembie, Cod. Dip., i. 43; Hickes' Dissert.^ 66 ; ArcJiceologia^ xviii, 49.
• Knivet, 44 Edw. III., 25 a.
• Momuticon, vol. i., Cant. Cathedral, App. ; Harleian MSS., 1197.
See also the case of the Maison-dieu at Dundee, and Lord Cranworth's
Argument, Scotch Peerage Cases; Macqueen, House of Lords, iv. 2;
Decisions in Court of Session, Second Series, xx. 849.
2 2 The Tenures of Kent [chap.
•Ling, for all by Canute*, who consolidated the codes of law,
i. 282; which before had differed in various parts of England.
Gav° w. Before the time of Edward it was not usual to express in
words the franchises, which perhaps were well known to
be inherent in the land; but it was found expedient in
the keener air of the Norman jurisprudence, which gained
ground in England for some time before the Conquest, to
fKemb. express exactly what was intended to be given f. Ac-
L44. * cordingly from this time we find in full use the well-
known form of words, sac and socn^ toll^ team^ and m-
fangtheof which the Normans were always careful to
employ even white expressing their ignorance of the
jRot. Car- exact meaning to be given to the words J. These fran-
intr. 37, chises, being fragments of the royal prerogative, could not
iii.,m*6. be given without the authority of the king, and in some
cases of the witanagemote ; and the transfer of juris-
diction over a manor from a private person to the Church,
could therefore only be effected by virtue of the royal
assent and ratification.
"The policy of the constitution was to bring justice
§stephen'B home to every man's door§," by constituting as many
UL 872.*' courts of law as there were manors in the kingdom ; and
the courts which had by far the most extensive powers
were those of the king's donees in free alms. Only the
highest nobles had privileges as wide as those of the
Church, which in the succeeding reigns retained the
powers, after in many cases losing the francalmoigne
tenure, to respect for which their privileges were in the
first instance due.
M^^'ii. Jurisdiction was usually given by the words soc^ sac^ Sgc.j
1^1^*^ quoted above, the meanings of which have been a fruit-
275; som- ful sourcc of disputc among antiquarians || ; the numerous
TlBTf A.Iltl(][.
Canterb. other uamcs of privileges, not so generally recited, re-
n.] Tenures in Kent before the Conquest. 23
ferred chiefly to the power of imposing fines on offenders
against the law within the limits of a particular manor, or
cluster of manors.
A brief explanation of the meaning of some of these
names is rendered necessary by the fact that they occur
in almost every important deed affecting our subject for
centuries after the Conquest, and such was the virtue
which they were imagined to possess, that they were
usually inserted in English by conveyancers, including
those who did not know a word of the language. Land
was expressed to be given together " with sac and socn,
on strande and stream, by wood and on field, toll by land
and water, team, infangtheof, and outfangtheof." More
are sometimes added, but this is the most usual form.
The monastery df Christchurch and the abbey of
St. Augustine enjoyed these privileges down to compa-
ratively modern times, as may be seen by the pleadings
on writs De Quo Warranto in Kent.
Soc was the right of holding a court, and deciding all
except certain royal cases, holding pleas of contracts,
covenants, and trespasses of the tenants. The liberty of
Christchurch was granted to the Dean and Chapter of
Canterbury, 33 Hen. VIII., but like that of St. Augus-
tine's, its court has been long disused ^ ♦. • Hagt. i.
• • 258
Sm is a less general word, and means the right of im-
posing fines for offences committed within the lordship \
^ 8oe was the right " aver fraunche court de ses homines." (MS. quoted
Sodxmer, Gav., 136, from the Cant. Archives; Thorn. Chron. of St. Au-
gustine's, 2030; Codex Diplom,, i. 44; Fleta, i. 47 ; Co. litt, 5 a; Book
of Evidences of St. Augustine ; Arundel MSS., 310.
^ Sae has heen rendered hy lis, soc hy investigatio. Cod. Dipl., i. 44.
But the chronicler of St. Augustine's, and the MS. Book of Evidences,
render it "the right of imposing forfeits." **The thane with sac and
we" corresponds to the later expression, " lord of a manor with court-
24 The Tenures of Kent. [chap.
Toll was the right of exacting or refusing toll on
journeys by land and water. The " customs called team
and theme^^ were of different meanings, the first being the
right of taking warranties within the lordship, the second
and more usual being the jurisdiction over the bodies,
• Book of goods, and chattels of all serfs born upon the estate "" ♦.
£vid< of
St. Aug. Infanfftheof was the right of trying a thief caught
2080. within the bounds of the lordship, as outfangtheof^ its
correlative, was the same right over one caught outside
those bounds.
These are the principal privileges exercised by the
barons, lords of manors, prelates, and monks in Kent,
which came down from the early times before the Con-
quest ; but there was a host of minor rights not so often
named in deeds, which it is not necessary now to de-
scribe minutely.
The list comprises many rights retained by lords of
manors at the present day, as well as many which are
obsolete, viz. the right of imposing and retaining fines
for various offences, as breach of contract, of recognisances,
or of the peace, for murder, homicide, burglary, robbery,
unlawful distress (witJiernam\ adultery, and sheltering
criminals; the exemption from land-tax, from the juris-
diction of the king's courts (except in royal cases), or
from the court of the lathe (in Kent) ; the power to remit
money due for watch and ward; to impose fine for the
baron and court-leet." (Co. litt., 58 a; Bracton, iv. 112 ; Ellis, Introd. to
Domesday, i. 175.)
' ** Thetne (sometimes written 'theame* corruptly) is an old Saxon
word signifying ^ poteatatem in nativis sive villanis cum eorum sequelis
bonis et catallis.' But tearne (sometimes also corruptly written ^theame^)
is of another signification ; for it is also an old Saxon word, and signifieth
'where a man cannot produce his warrant of that which he bought
according to his voucher.' '* (Co. litt., 116 a.)
n.] Tenures in Kent before the Conquest. 25
birth of an illegitimate child of a neif or female serf,
to keep all treasure-trove, to impose oaths and ordeals,
to hold fairs and markets, and the like %
One of the greatest privileges of the Kentish tenants
in francalmoigne was the jurisdiction over the lesser
thanes (also called threnges and drengs) on their estates.
These men, called in Kent Thegenes and Allodiarii^ were
turned into knights when the feudal system was esta-
blished, except, as we shall see, on the manors of the
priory of Christ Church ^
Turning now from the book-lands of the Church to
those of the laymen, we find that the thanes were divided
into three chief classes, the greater, the medial, and the
lesser thanes, of whom we have just written.
It was at one time a favourite theory, that all the lands
of each of these classes of owners was held by " the honour-
able tenure of military service*." This was supported •Ling,
among other proofs by the fact that the Norman writers ?8l2''°^'-
always rendered * thanes' by * barons' or ^ knights' (milites).
It is clear, if our copies of the Saxon laws are correct,
that some lands were held by military service ; but most
• Ellis, Introd., i. 275—286; Kemble, Cod, Dtp,, i. Pref. xliv.; Somner,
Gav., 133; Antiq. of Cant, ii. 103; Thorn's ChroDicle, 2231; Fleta, i.
47; Steph. Blackst., iii. 148; Lambarde's Perambulation, 224; Ay-
loflfe'fl Kalendar of Ancient Charters, 26, and E. E. 17; Pleas de Quo
Warranto, 6 Edw. I., 325; Madox, Excheq., i. 117; Treatise on Dane-
geld, 1756; Bracton, ii. cap. vi.
* Jurisdiction over these men is expressed to be given in most of the
early charters of St. Augustine's Abbey and Christchurch in one of the
following forms of words : " et super omnes allodiarios quos eis habeo
datos," or "etiam super tot thegns quot eis concessit pater mens;" or
in English, "over swa fela thegenar swa ic heom to geletten hebbe,"
'over so many thanes as I have allowed them,* and the like. (Somner,
Gav., App. zx. xxi. Monasticon ; Cant. Cathedral, and St. Aug. Abbey,
Appendices.)
26 The Tenures of Kent [chap.
of the tenures were entirely allodial, and unaffected by
the imperfect feudalism which preceded the organized
system of the Conqueror, and it is also probable that "-too
much stress has been laid upon the military service re-
quired from all freeholders," as subjects of the king, not
• Ellis, as vassals of a lord "^ ♦.
Domesdiy, Without discussing further the unripe feudalism of the
jk^ain, Saxons, in which almost all the elements of the perfect
5^^' *• system existed in embryo, we will distinguish between the
three classes of thanes or free holders of book-land.
1. In the first were the members of the great Council,
or Witanagemote, the earls or aldermen who with the
bishops and abbots and the officers of the royal household,
formed a nobility of office. These correspond to the barons
of later times, the king's ^ companions,' or gesith^ called also
Comites simply, representing what was afterwards the class
t Co. litt. of tenants by grand serjeanty f.
KUis, *' 2. In the second were the medial thanes (called also
in^d. Theoden^ or thaini medtocres)^ representing according to
J Rapin, some the Norman vavasours ±, or more properly the lords
1.150. +' if t J
§ Co. utt. ^* manors ^.
Domtld^l 3. In the third, comprehending the smaller gentry, were
^^^' the lesser thanes, holding like the preceding classes by
a free allodial tenure \ They owed no rent or service for
"* On the subject of military tenures before the Conquest, see the great
Case of Tenures, and the arguments of the Irish judges, printed 1720;
Selden, Titles of Honour, 513, 520; Spelman, Concilia^ i. 195; Co. litt.
64a (1), 76b, 83a; 3 Co. 25, and Preface; 6 Co. 75; 8 Co. 163, 171;
Hale, Common Law, c. v. note H; Spelman, Glossary, *Feudum;'
Hallam, M. A., ii. 296; Ze^es LkBj x. 23; Somner, Gav., 210.
* They were also called variously drenchs^ drengSf threngs, and in the
Danish counties, young-tnen. Some at least among them forfeited their
land for misconduct in war, and some were under the jurisdiction of
a superior lord, though most (as in much later times) held immediately
II.] Tenures in Kent before the Conquest. 27
their lands, and in the language of Domesday Book, in
the survey of Hawley in Kent, " could not have any lord
but the king," except where jurisdiction over them had
been granted in the charters of particular churches or
nobles. Among them we may probably include the lower
Bet of comiteSj who were the ^ companions ' of the greater
nobles^, as well as those ceorls or yeomen who acquired
the statiis of a gentleman by the possession of five hydes
of land of their own, &c., and those burgesses, who ac-
quired the same degree of nobility by three trading voyages
beyond the sea. Among them, too, were probably those
socmanni of Kent who had acquired manors of their own,
in some cases of a considerable size. These chiefly ap-
peared in records of the tenants of Eomney Marsh, for
which it was necessary that resident owners should be
found, and which yet was by no means a favourite district
with the gentry of those times. We learn from the
Domesday survey of Kent, that the king had in general
the jurisdiction over, and the fines received from these thanes
of the third degree, and also over their tenants, and also
a heriot (afterwards a relief) on the death of one of them,
except in the lands of St. Augustine, of Christchuroh, and
the canonry of St. Martin at Dover, having in these cases
alienated his " power over the thanes on their land "."
of the king, but their tenure, though in some respects restricted, was cer-
tainly allodial. {Lege* Ina, x. 23 ; Hallam, M.A.. ii. 269, 364.)
y Burhtric of Mepham, whose will is extracted in Lamb. Peramb., 495
(referred to in Launder v. Brookes, Cro. Car., 561), seems to have been
one of these *' thanes of a thane."
* " Has forisfacturas habet rex super omnes aUodiarios totius comitatus
Kimt et super homines eorum."
••In CantuL quando moritur aUodiarius Eex inde habet relevationem
ten® excepts terril S. Trinitatis et S. Augustini et S. Martini, &c."
The well-known fragment of the law, ascribed to Atbelstane, but pro-
bably of an earlier date, which shews how a yeoman might become a lesser
28 The Tenures of Kent [chap. n.
All the free lands of Kent were divided between the
Church, the king, and the great thanes or " ppers of Kent.'*
Under these last, diflferent manors were held by the medial
thanes, and holding lands in certain manors were the lowest
class of allodial tenants ; in some cases, however, a whole
manor belonged to a threng, or lesser thane.
Under them all were the soc-men or rustics of various
degrees, holding all the land not required for the lord's
own use by a free socage tenure. The gavel-men culti-
vated their own estates, and paid rent and services as
a tribute; the borderers cultivated the lord's demesne as
the service by which they held their strips of outlying
land.
What was free land then in Kent isi at the present
day descendible to the eldest son, and is held in free and
common socage.
What was tributary then, is now all held by the
ancient socage tenure of gavelkind.
thane, Ans in modem English thus : — ** It was whilome in the English
law that the people and the law were held in repute, and then were the
wisest of the people worshipful each after his degree, earl and churl,
thane and under thane. And if a churl thrived so that he had ftdl five
hydes of his own land, a church, a bell-house, a gate, a seat, and an office
in the king's hall, thenceforth was he worthy of a thane's right. And if
a thane so thrived that he served the king, and rode on his messages with
his household, and if he then had a thane that followed him who had five
hydes of land for the king's expeditions (i.e. enough land to support
a soldier for the army), and served his lord in the king's palace, and
thrice had gone with his message to the king, such a one might afterwards,
giving his oath first, play his lord's part at any great need.
" And if a thane so thrived that he became an earl, then he was after-
wards worthy of an earl's rights. And if a merchant so thrived that he
passed thrice over the wide sea of his own craft (with his own wares),
thenceforth he was worthy of a thane's rights, &c." (Laws, 71 \ Lamb.
Peramb., 500.)
CHAPTEE III.
Gavelkmd.
Tenure of the yeomen and rustics. — Gavel-land. — ^Rents and services due
to the lord. — Many varieties of Socage. — Customs of the Kentish Soc-
men. — Incidents of their Tenure. — Personal freedom. — Alienation inter
Titos, — Devise. — Bequest. — Descent. — ^Dower. — Curtesy. — Escheat.
Having now noticed the condition of the various allodial
freeholders, we can the more easily discuss the tenure of
that large body of freemen who held their lands in socage.
All who were not slaves, serfs, or thanes, were included in
one or other of the subdivisions of this body of yeomen and
rostics. In the same way all lands that were not allodium
were held in socage.
Thane-land, as we have seen, was free from rents, and
from all services, except such as were in the nature of
taxes on all subjects. The possessions of the Church
were liable to the Trinoda Necessitas^ and some free lands
were charged in addition with purveyance and various
dues; but the essential characteristic of socage was its
liability to rents and services due, not to the State, but
to the grantor, who in most cases was the lord of the
manor, holding under a charter given or confirmed by
the Crown. \
Gavel^ or gafol^ was the old name for rent, including
in that term money, labour, and provisions* ; "so that terra • Co. utt
ad gablum posita (the most usual expression) is * land let
out for rent.' In the latitude of the word it means be-
sides all ^ censuaP or tributary land, as also what we call
customary land, and so takes in all held by rent-service,
which with our Saxon ancestors was called and known
30 The Tenures of Kent. [chap.
by the name of gafol-land or the like. And gavelkind is
the land's right name, whose signification of censtial or
rented land (by rent-service) was never questioned till
• Somner, within our fathers' memories * ♦."
t Rob. 3;' In this interpretation all modern Kentish writers agree f,
Lam^e,' the name having only become peculiar to this county when
nrst^^l' socage in the rest of England had been modified to suit
introd. ^jjQ jn^g^ system. The confusion which has arisen from
using the word in other senses will be noticed afterwards
at a greater length.
It happened sometimes, no doubt, that gavel-lands were
held by thanes, spiritual or temporal, and in such cases
a rent was due, for mere ownership by a thane could not
J Kembie, change the nature of socage J ; in a like manner (as will
Sax. in be seen later in a chapter on burgage), allodial land occa-
i. 350. sionally came into the hands of simple burgesses, but it
did not thereby lose its allodial nature. These irregu-
larities in tenure were not, however,' frequent, the great
bulk of allodium being held by the thanes, as almost all
the socage-lands were held by the lower orders.
There are many subdivisions and distinctions to be
noticed in the ancient tenure of socage, some of which
at this distance of time it is hard to define with exactness.
Three chief varieties exist in our own time, viz. (1.) Gavel-
kind in Kent, which is the old Saxon socage slightly modi-
• Gavelkind land is often mentioned in Domesday Book, viz. " terra in
consuetudine, ad gablum posita, tenere ad gablum." In other places **ga-
blum rusticonim, gablum et consuetudo," and "gablatores** arc mentioned
(Kelham, Domesd. Illustr., 218). It is well described in Wilkins* Grloss.,
404. After an account of free or thaneland, gavelkind is defined to be
** censualem, tributariam, reditui annuo ceterisque prajdiorum rusticonim
obnoxiam ac Saxonum gafol-land respondentem de qua in fosdere Aluredi
et Guthruni * butan thaem ccorle the on gafol-land sit/ i.e. praiter rusticum
qui in terra cens4 manet." (Treaty of Alfred, c. 2 ; Lambarde, Archaion^
xlv., c. 2.)
m.] Gavelkind. 31
fied by the later law, (2.) Free and common socage, which
is the same tenure much modified by the feudal law, and
(3.) Burgage, or borough-socage. The rest have generally
disappeared.
It must not be supposed that the name of the villani
or yeomen implied servitude; they were carefully distin-
guished from the pr edial serfs for several reigns through- v
out England, and in Kent their freedom was never im-
paired ^.
It is impossible to understand clearly the law of real
property in Kent, or to decide upon the true reason of the
cases which from time to time arise upon the construction
of the Kentish customs, without attending particularly to
the old law respecting this large body of socage-tenants,
which has descended nearly unaltered to our time.
There was at one time great difference of opinion as
to the meaning of the word reeve-land, which in Domes-
day Book was apparently opposed to thane-land ; e. g. in
the notice of a manor in Herefordshire it was said, " this
was thaneland in the reign of King Edward, but was
afterwards turned into reeveland.^'
This passage led the judges in the case of tenures in
Ireland to maintain with Coke ♦ that reeveland meant • Oo. utt
86 a.
^ ** Villiens sont cultivers de fiefs demorants en villages uplandes, car
de vill eat dit villein," (and, " base tenants qui fesoit villein service mes
ne fait pas villein"). (Somn., Gav., 74 ; Co. litt. 116 b.) The same dis-
tinction is made in the well-known passage of Bracton, i. cap. 7: "Fuerunt
in Conqnestu liberi homines qui libere tenuerunt per libera servitia vel
per liberas consuetudines : et quum per potentiores ejecti assent, post-
modum reversi receperont eadem tenementa sua teneuda in villenagio,
faciendo inde opera servilia sed certa et nominata, &c., et nihilominus
liberi quia, licet faciunt opera servilia, cum non faciunt ea ratione perso-
namm, sed ratione tenementorum,'* &c. In Kent, however, they did not
receive their tenements back '* tenenda in villenagio," but in socage, as
free as before.
32 The Tenures of Kent. [chap.
nothing but socage; other great writers doubted whether it
could mean folkland. It is now, however, known that there
was no exhaustive division of tenements into thaneland
and reeveland, the latter meaning only the estate attached
to the sheriff's office ; this did not contribute to the land-
tax, or in any other way towards the military defence of
the kingdom, and therefore any unjust inclusion of ordinary
thaneland into this " sheriff's land" would be noticed and
set aside *^.
The distinction which has been drawn between the thane-
land of the upper classes and the gavelkind of the yeomen
is continually maintained in all the treatises on the old
law of real property. The two tenures differed essentially,
both in name and in nature; the first was free from all
but the common dues of a citizen to the state, the other
was encumbered with a multitude of customs, rents-ser-
vices, and usages which still form the basis of the law of
socage tenements.
Besides the general name of gavel-land, other names were
applied to land held by different varieties of socage.
Such are the old terms stockikind, neaUland^ out-land^ work-
land^ aver-land^ &c., a short explanation of which in detail
may serve further to explain the true nature of gavelkind.
1. Stockikind is a Kentish term of very rare occurrence,
which it is difficult to distinguish from gavelkind; it is
used in an old deed^, by which the reputed manor of
Brockley, near Greenwich, was granted by Michael Tum-
c Rotuli Cartarum, Introd. ; Wright. Tenures, 47 ; Dalrymple, Feudal
Property, 9; Hallam, M.A., ii. 294; Spelman, Posth. 38.
^ The deed by which Juliana de Maminot granted the land to be held
thenceforth in free alms, contained these words, " dedi totam terram illam
quam vendidit mihi M. T. sicut suum liberum gavilikind et stockikind
ad fundandam ibi domum religionis." (Dugd., Monast.y ii. 640 ; Hast.,
i. 356.)
III.] Gavelkind. 33
ham, with the consent of his heir, to Juliana de Maminot,
that she might found a religious house on the land.
Neat or ge-neat^ an old word meaning a labourer, gave
another name to socage. Neat-land includes all that was
held by the service of doing the lord's farm-work, carry-
iog his messages, and the like. It corresponds to the later
\j&rmsfiefde roturier^ or "ploughman's fee," used in Kent
as synonyms of gavelkind ^.
Outland and inland^ terms still used in certain parts of
the county*, require rather more explanation. They have • Hasted,
often been construed to mean merely the tenants' lands 230. '
and those retained in demesne, but this is not correct. The
former term includes all that was held by the yeomen, or
gavelkind tenants proper, the latter all that was given (in
smaller quantities) to the borderers, who aided the serfs
and cottagers to cultivate the lord's demesne. Both kinds
are now gavelkind in its fullest sense, but at one time, as
will appear later from the records of the Priory of Christ-
church, the tenants of inland had not the custom of par-
tible descents. The reguIaF^vel-men are distinguis"Eed
fix)m them not only in the records of Penshurst and
Chevening manors, but in those of Mepham f , and in the f Somn.»
"Eochester Custumal," &c.' vv-^^^
From the inland, as well as the outland, rents and
services were due, which are now represented by small
quit-rents. But from the demesne lands there could not
* • LegM Ina, c. 19 ; Kemble, "Anglo-Saxons in England,'* vol. i. 323;
Somner, Gav. 114; Lamb., Peramb., 545. RecUtudineB Bingularum per-
umarum.
' A good example of the difference between inland and demesne is
fomid in the Harleian MS8., 1708. f. 15 : *' Le in-landd in Chels in do-
mmium convertend4:" cf. ff. 155 b, 159, 219 b. Inland was sometimes
taken into cultivation with the demesnes, but in general the labourers
held it in perpetuity.
D
•
Decern
Scrip
1949.
34 The Tenures of Kent. [chap.
of course be any rents or service (see inter alia a deed
of exchange between the Prior of Christchurch and the
^^ Abbot of St. Augustine's in Thorn's Chronicle ♦).
Scrip*- The presence or absence of quit-rents in a manor forms
a useful test in determining what lands were portions of
the demesne, and therefore (in general) not of a gavelkind
nature. The test of course may not be sufficient in itself,
as certain manors were entirely gavelkind from the first ;
but where there is already a sufficiency of evidence that
the manor and its demesnes were held in francalmoigne, or
by a military tenure from the Conquest, or from earlier
times, the presence or absence of these quit-rents from
particular lands may be very useful in identifying the
boundaries of the original demesne.
The services of the tenants of inland and outland dif-
fered not only in amount, but in nature, the first being
more precarious and servile than the latter. This diflfer-
ence is expressed in the old names : hen-erth was precarious
tillage-service with horse and cart, gavel-erth was tillage-
service certain ; ben-rip is a precarious service of reaping,
gavel-rip was the same service, only certain. It was com-
muted for a rent called ' reap-silver ^.'
Both inland and outland are included in the socage
tenements or vilknagia^ as opposed to the demesnes or
dominica ^.
i Gavel-erth : Account-roll of Reculver manor, 29 E. 1 ; Somn., Gkv.,
17; Custumal of Gillingham. Benerth : Co. litt. 86 a; Glanville, viii. c. 3 ;
Register of Ch. Ch. ; Harleian MSS., 1006 ; Custumale Roffenae. Gavel-
rip: Custumal of Westwell in Somn., p. 19 ; Do. of Whitstaple, ihid,;
Spelman, Glossary, Benerth, Bid-rip,
^ Deed of Henry I., remitting the land-tax on all the demesnes and
socage lands of the Archbishop and Monks of Canterbury. (Monast.
i. 105.)
The inland is frequently called Bord-land, and in other counties ** do-
minicum viUenagium^^* or villein-demesne, because it was given out to the
in.] Gavelkind. 35
There are many names for other kinds of gavelkind
lands, which need not here be explained at length. Such
are Monday-land, Tuesday-land, &c., where the tenant
worked for the lord on particular days of the week^ : others
merely refer to the amount held by the tenants, e.g. acre-
land, rood-land, suling-land: others again refer to the
nature of the work required, as Smith-land, and the like.
As to the manner of creating a gavelkind tenure.
The socage tenures of those times, as was mentioned
before, were of too inferior a kind to require " land-books,"
or charters for their creation. "Gavelkind did not pass
by charter at all, and the tenure in general was of an in-
ferior character*." Most of the deeds which have de-«Codex
scended to us from those early times are unconditional tr(5i.\6i.
grants in fee with no consideration expressed: "Some,
however, contain a mention of what appears at first sight
to have been rent (gavel), but a closer examination leads
to the belief that these payments were portions of pur-
chase-money to be paid by instalments, or perhaps ger-
sumesj i.e. fines, or sums paid down on the execution of
the deed t ." t /b«. 62.
After the Conquest, when the use of written deeds be-
came more general, gavelkind passed by deed as well as
other tenements ^ One of the most ancient examples! oftoaveik^
^ * App. 1.
labotirersy who held portions of it at the lord's wiU. (Bract. 4, tr. 3 ;
Fleta, 5, c. 5.) But this was not the case in Kent, where the labourers
on the bord-land or inland were freeholders, even though some of their
duties were servile. «
» Somner, p. 120, and Harl. MSS., 1006, p. 61.
^ Thomas Sprott, the chronicler of St. Augustine's Abbey (who wrote
about A.D. 1274), notices a very ancient grant of gavelkind, which may
have been by deed : " Abbas tradidit terram de Dene in gavelkende Black-
maono et Ethelredo filiis Brithmari, a.d. 1043/' (Heame, Heliquia
Sprottiana.)
• d2
36 The Tenures of Kent. [chap.
this was extracted by Somner from the Archives at Can-
terbury.
By this deed Arnulf the prior and the monks of Christ-
church (with consent of Archbishop Anselm) granted nine
portions of lands in the suburbs to one Calvel and his heirs,
at a total yearly rent of 52s., exclusive of the fines to be
paid by the said Calvel and his heirs, for any murder or
theft committed by them, and any voluntary presents which
through piety they might make to the grantors ; the rent
to be paid by equal half-yearly instalments, and the relief
to be fixed at 20s. Two similar deeds follow this in the
Appendix to Somner's *' Gavelkind."
After the time of Henry II. the form of these deeds
was altered to somQ extent, and the lands were granted
with " Tenendum in Gavelikende," five examples of which
may also be seen transcribed verbatim in the Appendix to
• Bibi. Somner, init. ♦
Topogp. '
Britann.
i 231
As to the services and rents due from tenants in
gavelkind.
Before the Conquest it was not customary to pay rents
in money, but in kind ; they were trifling in amount, the
personal services of the tenants being the most valuable
part of their ^ gavel,' or tribute. In later times these
services were commuted for a money payment, but the
precise period of this change is unknown. Rents began
r to be paid in money soon after the Conquest, and the
reign of Richard II. is generally given as the date for
tco. uti. the commutations of personal service f: the process no
doubt was very gradual.
The. nature of the ancient services appears from the
custumals, rentals, and acfiompt-rolls of the various manors,
or from the registers and archives of the cathedrals and
iJi.] Gavelkind. ^y
monasteries preserved in the British Museum, the State
Paper OflSce, and some of the cathedral registries.
The services were of many kinds : am ong them we can
distinfr niBh those of plo ughing^ reaping, threshing, win-
nowing, fencing, mowing, carrying wood and provisions,
shoeing horses, mending fences, watching for game, going
on errands, &c. * The rents were also very various, and*Kembie,
distinguished by different names, according to the nature i. 323.
of the produce in which they were originally paid. At
the time of the Conquest many of them were turned into
money payments f, and were then called Penny-gavel, orfEiiw,
Introd. to
gablum denariorum ; of this kind were the rents reserved Domaday.
T . . . i. 267.
in the ancient deeds just cited. Many, however, con- '
tinned to be paid in kind, e.g. in cocks and hens, oaljs,
barley, meat, bacon, ale, honey, eels, timber, rafters,
eggs, &c., and even clothing, shoes, and gloves were \
occasionally paid as rent by the socage tenants of manors ]
in Kent *".
The preceding summary has shewn that the socage
tenants were both free and prosperous, especially in Kent.
So long as the burgess or the yeoman paid his * gavel * and
performed the service of his tenure, he was safe from ex-
pulsion at the hands of his lord. Justice was at his door
in the hall-mote or the burgh-mote, and the security of his
neighbourhood was maintained by the system of frank-
^ See the Custumals of Thanet, Adisham, Reculver, Gillingham, Mai-
ling, Chertham, West Farlcigh, Westwell, &c., cited by Somner, c. i.
The freeholders of Minster in Thanet still pay 6d. an acre for com-gaveL
(Lewis, Hist, of Thanet, Coll. xxiii.; Somner, Gav., 16.) From gavel-
rafter rent is derived by some writers the ** gable" end of buildings, for
which the tenants contributed the materials. For black-mail, or r^t
in kind, still used in Jersey, see Somner, 34 ; Wiight, Tenures, " Socage,"
2 Inst. 19, 43. Money payments were called blanch-mail or white-ferra,
or as in Scotland, * blanch-holding.' (Steph. Blackst. i. 675.)
38 The Tenures of Kent. [chap.
pledge, or mutual bail. He took a share in the election
of district officers, and in the management of the public
aflPairs of the district; it seems indeed from one record
that the gavelkind tenants of Kent were consulted in the
aflfairs of state relating to their county as early as the reign
of Athelstane ^
The customs of gavelkind consist for the most part in
following the ancient law of free socage ; the later addi-
tions to this law must be reserved for another chapter,
while we say here a few words as to the laws and usages
which the men of Kent have kept ^^ from before the Con-
quest, and at the Conquest, and ever since, until now ""."
^ And, first, as to the statement so often made " by the
whole county," that Kentishmen were all free from the
earliest times. If this were true there would be now no
copyholds in the county, their presence proving that at
any rate since the Conquest there were serfs of the de-
mesne. But it is distinctly recorded in " Domesday Book"
that there were more than eleven hundred serfs out of
a population under thirteen thousand (reckoning only
male adults). These serfs were made up of the descend-
ants of the aborigines^ of those who had been condemned
to slavery for crime or in default of paying fines for crime,
their families and descendants, and prisoners of war.
' ** The laws of Athelstane had no effect in Kent until sanctioned by
the Witan of the shire." (Thorpe's Anc. Laws, 91.)
A letter was addressed to the king with reference to the laws passed
at the Council of Greatanlea, near Andover, thanking him in the name
of the bishops and thanes and {comites) lesser thanes and {villani) yeomen
of Kent. If it is doubted whether the last class had anything to do with
th« legislature of the shire, at any rate it was important enough for its
assent to the laws to be recorded. (Hallam, M. A., ii. c. viii. n. 5.)
"* "Devaunt le Conqu3st e en le Conquest e totes houres jeskes
en 9a." — {Custumal 0/ Kent. )
III.] Gavelkind. 39
Besides these, there were s emi-servile^ classes, such as
the cottagers on many manors, who were nothing but
tenants at will, and could legally acquire nothing except
for the lord's benefit °. We shall see that some time after
the Conquest part of this semi-servile class was raised
with the labourers on the demesne {hordarii^ tenants of
small freeholds) to the status of tenants in gavelkind, but
in earlier times they could not be said to have had even
personal freedom.
The most important parts of the old law of gavelkind,
are those which dealt with alienation, descent, dower,
curtesy, and escheat, which in substance still remain im-
altered.
1. Alienation, -r ^
The feudal severity which forbade a vassal to aliene
without his lord's consent was unknown in England before
the Conquest, the military system not requiring the sup-
port of such a stringent rule.
The land of the thanes, unless settled by the first donor
in a certain course of descent, might in general be aliened,
but nothing in the nature of an entail could be barred,
except with the consent of all who might be interested;
there were also some special restrictions on the Church
in dealings with land *".
The tenants of gavelkind might also aliene the land,
■ Liber Ecelma Christi, Canterb. ; Cotton. MSS., Vitell. A. v. ; Somner,
6av., 72 ; Lamb, xiv. 528. In 30 Edw. I. it was laid down that there
was then no servile class in Kent, and this was pleaded 7 Hen. YI. 33 ;
and it was said that the fact was true, but only by reason of a particular
statute. (Fitzh., Villeinage, 46.)
• Archbishop Wilfred claimed successfully the right of free alienation
without licence. (Somner, Gav., 88.) In general, donations to the Church,
if made by the king, required the sanction of the great council ; if made
by a subject, ^t of the king or other lord.
40 The Tenures of Kent. [chap.
if the old rent and services (gavel) were properly secured
to his lord.
It may have been necessary in many places to get the
previous consent of the lord, but it was usual in Kent for
the latter to stipulate merely for a right of pre-emption if
the gavelkind land were aliened after the grant ^.
The tenant might devise his land as well as aliene it
by conveyance inter vivos^ provided it was not part of the
inheritance of his ancestors**. It must be remembered
y/ that a will was then in its nature jrecative, and therefore
required a preceding heriot-clause to secure the lord's sup-
port. If no heriot were bequeathed, it seems that in general
the lord might share with the family the real property of
the deceased, and divide his goods and chattels as he
thought fit: in Kent, however, a definite ratio for the
division of personal property among the family had been
• Laws of established by law or custom*.
Canute, pt.
ii. c. 68.
P A clause to this effect is found in a very ancient deed, extracted by
Somner from the Canterbury Archives, Append, ii. Wibert the prior, and
the monks of Christchurch granted certain land in socage in these terms :
** Tenebit praedictus G. de nobis has terras bene et in pace et honorifice
jure hereditario per supradictum censum, et licebit ei de ipsis tanquam de
propriis facere quod voluerit, salvo jure et redditu nostro. Ita tanien quod
si eas alicui dare voluerit vel vendere nobis prius hoc indicabit, et nos
ad emendum eas proximiores esse debemus." A similar clause is cited
from Leges Burgorum apvd ScotoSy c. 100.
"^ " Emptiones vel acquisitiones suas det cui magis velit. Terram
autem quam ei parentes dederunt non mittat extra cognationem suam."
(Wilkins, Zeges, Hen. I., c. 70.)
That remnant of the clan-system, once universal, and still known to
some European countries, prevented freedom of devise from extending
to any great impoverishment of the family.
Under the Norman kings a man might not even devise his purchases,
unless he left sufficient to support his heirs ; it was felt that every owner
of land was in a manner a trustee for his family. Thus Glanville: "Si
questum tantum habuerit is qui partem terrse suaj donare voluerit tunc
quidem hoc ei licet; scd non totum questum : non potest filium suum ho}-
redem exhaeredare." (lib. vii. c. i.)
III.] Gavelkind. 41
A certain portion of the chattels might be bequeathed
(after payment of debts) to pious uses, or otherwise at the
direction of the testator. This part could not exceed one
third if wife and children were left, the wife taking another
third, and the children dividing the remainder. If only
a wife survived she took half, and the rest might be freely
bequeathed *. The same proportion was observed in di- • GianT.
Tiding the goods of intestates '. M^Ch.,
A tenant in gavelkind attained his majority at fifteen 2 imt 33;
years, a year later than tenants in inferior kinds of soc- GaT^ue.
age ; in many boroughs a much earlier age was fixed by
local custom.
2. Descent. ^^
The partition of lands in descent between(aiythe sons,
and failing them between the daughters, was the universal
law of socage descents in England until comparatively late
times ; nor was it peculiar to England, being found in the
lands of the roturiers of France t, as well as in other parts t Estabi.
de St.
of Europe. There was, however, one peculiarity of the old Louig.
law of gavelkind, which was perpetuated for some time
in Kent, though long since obsolete, viz. the allotment of '
the dwelling-house to the youngest parcener as by the
custom of borough-English, discussed more fully in the
chapter on burgage. Nor was the partibility confined to
children, the doctrine of primog eniture being quite un- 1
known to th e Saxons in lands of this tenure, so that all I
the heirs of equal degree took as parceners, the males being \
preferred to the females ±. X Robint.,
Gav., c Ti.
(Wilson's
' " Seient lea chateus de gavelekendeys parties en treis apres Ic exe-
quies e les dettes rendues, si il y cit issue mulier {legitimate) en yye,
i»y que la mort {the deceased) eyt la une partie e les fitz e les filles
mulier lautre partie, e la femme en yye la tierce partie.'*
'' £t si nul issue mulier en vye ne seit, eit la mort la meitic et la femme
en vye lautre meytie.** (Kentish Custunial.)
y
II
42 The Tenures of Kent. [chap.
3. Dower.
The dower of Saxon times was not quite the same as
that of the later law ; it corresponded rather to that cus-
tomary dower or free-\ienc h which has remained in certain
boroughs and on many copyhold manors from those ancient
times. The widow had her " reasonable part" of the chat-
tels of the deceased, which no testamentary disposition
could take from her ; and it was also considered expedient
that she should have a definite share of the lands which
her husband had inherited and owned at the time of his
death, for her own maintenance, and the sustenance of her
younger children. It is probable that lands which her
husband had himself p urcha sed^ were not liable to this
dower or free-bench ; in these the widow's part was already
fixed at one-third if there were children, one-half if there
were not, as in the case of personal property. The pro-
portion of the inherited lands taken by the widow varied
in different places; in some boroughs she took all; in
others (as in London), while the house went to the youngest
heir, th^chief room was reserved as ^^ the widow's cham-
ber;" /but in gavelkind lands she kept one full moiety
duringEer life, chastity, and widowhoo^ Thus it is said in
the Kentish Custumal, " if such tenanx in gavelkind (i.e.
one taking by descent) die, and leave a wife surviving him,
let her straightway be endowed by the heirs of one-half of
the tenements of which her husband died seised, if the heirs
be of agQ (or by the lords if the heirs be not of age), so
that she may have the half of those lands and tenements
to hold so long as she keepeth a widow, or until she shall
be attainted of childbirth after the ancient usage, &c." ■
■ ** Et si nul tiel tenant en gavylekend meurt e eit femme que survive,
seit cele feriinie meintenant douwe dc la meitie des tenementz dont son
baroun morust seisi per les heirs si il seicnt de age ou per les seigneurs si
les heirs ne seicnt pas de age, issi que ele eit la meitie de ccles terres
III.] Gavelkind. 43
4. Curtesy.
The estate of the husband in the lands which had de-
scended to his wife differed also in several particulars from
the ordinary curtesy of England {per la lei D* EngUterre)
in socage tenements, being much more like the customary
free-bench which is now used in copyhold; the curtesy
of the tenant in gavelkind is constantly called free-bench
{francuS'hancus) in old cases *.
The old law of socage, still retained in Kent, gave to
tiie husband surviving one-half, not the whole, of the wife's
inherited land, and the birth of inheritable issue was not
necessary to perfect the husband's inchoate right, as is
usual elsewhere, nor could he keep the land after another
marriage. In lands which the wife had purchased the
husband would in those times need no curtesy, having
already his "reasonable part" of these, as well as of her
chattels. This may be gathered from the words of the
Custumal setting out the traditional law, " And they claim
also that if a man takes a wife, who has inherited gavel-
kind land, and his wife die before him, the husband shall
have the half of those lands and tenements, of which she
died siesed, so long as he remains a widower, without doing
any (strip or) waste or suffering exile, whether there were
any issue between them or not ; and if he takes another
wife, he shall lose it all''."
5. Escheat.
Although the severity of the feudal law respecting es-
e tenementz a tener tant come cle se tyent veuve ou de enfanter seit
atteint per Ic aancienne usage," &c.
* De Bending v. Prior of Christchurch, infra.
■ " E clament auxi que homme que prend femme, que eit heritage de
gavjlekend, e la femme murge avant luy, eit le baroun le meite de celes
terres et tenementz tant comme il se tient veufver dont ele morust seisei
saunz estrepement ou wast ou exile fere, le quel kil y eit heir entre eux
oa noun, et si il prent femme trestout perde.*'
44 The Tenures of Kent [chap. in.
cheat for felony and attaint of blood was unknown in
England before the Conquest, there were several occasions
upon which the tenant's socage land escheated to his lord.
In the case of those who owed military service , cowardice
in battle was followed by forfeiture of their allodial land
to the king ; and by an analogous process, the land of the
tenant of gavelkind who neglected the payment of his
rents, &c., escheated to the lord. There were three ways
in which gavelkind tenements might escheat, viz. intes-
tacy and want of heirs, cesser of services, and felony for
which the culprit avoided a legal judgment.
Of these, the first is merely the escheat propter defectum
sanguinis^ known to the common law. The second and
third bear a great resemblance to the later " escheat per
delictum tenentis^^^ but were unaccompanied by corruption
of blood, the fiction of a later age.
The Kentish Custumal speaks of escheats by failure of
heirs and devisees, by gavelet, and by felony.
/ Escheat by gqj^t, which resembles the result of pro-
ceedings on a writ of cessavit^ now obsolete, was when the
lord recovered the land of a tenant neglecting his rent
and service.
At each three-weeks' court successively the lord sought
yj for a distress upon the land; if none were found after
thrqe searches, he kept the land as a distress or pledge
for the rent for a year and a day ; if the tenant still made
default, the lord, after solemn notice in the county court,
might take the land with the consent of the freeholders of
the manor, and treat it thenceforth as part of his demesnes,
free from all nature or tenure of gavelkind.
This process, long since rendered unnecessary by simpler
modes of recovering rent, is said to have been obsolete in
Kent for at least three hundred years.
CHAPTEE IV.
Gavelkind.
The word ' Gavelkind' used in difTerent senses. — Great confusion has re-
sulted from this. — Socage before the Conquest. — ^The ancient Socage of
Kent. — The customs of Gavelkind. — The custom of partible descent in
Kent. — Similar customs in other parts of England.
A CONFUSION has arisen in many arguments upon the
nature of gavelkind, from the fact that the word has been
constantly used in several different senses.
It is often forgotten that, properly speaking, gavelkind is
i^ tenur^ Mf socage a ccording to the customs of Kent^ and not
merely a peculiar mode of descent known upon freehold and
copyhold alike in several counties.
When it is once clearly shewn to be a tenure, and not
merely a custom, it will be seen how impossible it is for
land and tenements to have been from the Conquest till now
held in two tenures simultaneously; in other words, for
the custom now to attach itself to lands proved to have
been held from the beginning to the end of the feudal
system by ancient military or spiritual services, in chivalry
or in francalmoigne. Only an ancient and original socage
tenure is imbued with the qualities of gavelkind.
There are five different significations which have from
time to time been used as synonyms of gavelkind, and
a brief discussion of them in order may help to remove
the confusion mentioned above.
This word has been used in the following different
senses, of which the first and second are alofte strictly
correct.
ii
46 The Tenures of Kent [chap.
1. Socage tenure before the Conquest.
2. Immemorial socage tenure in Kent.
3. The body of customs allowed on ancient socage lands
in Kent.
4. The customs of partible descents in Kent.
5. Any custom of partition in any place.
I I. Before the Conquest the lands of England were
jeither allodial or tributary (gavelkind), either free or
iencumbered with services and rents. In the same way
the only broad division of society known at that time
was that of earls and churls (eorlish and ceorlish\ or
nobles and rustics; the possession of free allodial land
was the only title to nobility, and even the rent-paying
• Aiftped'8 rustic, " the churl who on gavel-land lived *," on gaining
withOnth-an cstatc of his own, sufficiently large to maintain one
w Anc. soldier for the state, became noble, and had all the rights
Sax. Uwfc ^£ ^ well-bom gentleman. Ownership of land, as in the
later times of feudalism, was held to ennoble the blood.
The tenants in burgage, a species of town socage, could
seldom hope to acquire so much land of their own, and
to them therefore this special favour was granted, that
a burgess who served the State by making three trading
voyages beyond the sea, became ipso facto a thane or
gentleman.
It was usual for the lord of a manor to retain for his
own use a portion, afterwards called the demesnes, and to
let the rest out to his rustics as gavelkind, or, as it was
often called, tew-fe7w?(lent-land), i.e. lent for rent in money
or services *.
• A good description of these rents and services was extracted by
Kemble (Anglo-Sax. in Eng., i. 323), from the valuable document
called Itectitudtnes Singidarum Fersanarum, It tells us that the services
of the gavelman, or socage tenant, varied according to the custom of dif-
IV.] Gavelkind. 47
It was however common (at least under the later kings),
for a ceorl or yeoman to acquire a whole manor of his
own, and this appears from numerous entries in Domesday
Book ; in such a case, before the Conquest, the land would
naturally cease to be gavelkind, and be after the Conquest
transferred with other lands of the thanes to military
tenants, or to the Church to hold in barony or in free
alms. Such manors seldom had anything in demesne at
the Conquest, and therefore at the present time the land
in such manors is gavelkind, though the manors them-
selves are free, for not having been in demesne at the Con-
quest it must have lain in socage. Though in general the
lands of the Church and the nobles were essentially free
from rents or service of any kind (except the Trinoda Ne-
cessitas\ yet it was competent for everyone to hold parti-
cular lands by the inferior tenure. Accordingly we find
instances of lands held by rents of money, grain, honey,
and the like, by the prelates and nobles ; but as a general
rule, the higher classes kept to the higher tenure, and the
rustics to the lower.
n. The second sense in which the word gavelkind can
be used, with propriety, is the ancient tenure of socage as
preserved in Kent. This really diflters very little from
the rustic tenure just described. The services have been
commuted, and some new incidents introduced from time
to time, but in the main it is the same as in the reign of
the Confessor. It is important to remember that gavel-
kind is a tenure, not a custom; it is socage on which
ferent parts : ** In some places he must pay a yearly money-rent (land-
gavel), &c. ; he must ride, carry, and lead the horse, and load the cart,
work for his lord, and gain him food, reap and mow, cut the park pa.
IbgB, watch for deer, build and enclose the manor-house, make the roads,
pay Chnrch-dues and alms-fees, and e;o on errands far and near."
48 The Tenures of Kent. [chap.
have been preserved the laws and customs of the Saxon
yeomen, *'so that the partibility and other customary
qualities are rather extrinsic and accidental to it, than
• Eob. necessarily comprehended under its name *."
QftTty 5.
It will be probably worth while to look at a few of the
best authorities for saying that gavelkind is a Kentish
tenure, and not a custom, or a body of customs.
1. It is said to be only a species of socage modified hy
the custom of the country^ the lands being held by suit of
t Wright's court and fealty, which is a service in its nature certain f.
^enureB, g^ Littleton X distingjiishes between the tenure and its
X §• 265. incidents in these words : ^^ The custom of partition in lands
or tenements, which are of the tenure of gavelkind in the
county of Kent;" and in the disgavelling Act, 31 Hen.
VIII. c. 3, the lands, manors, and tenements of the per-
sons therein named, are directed for the future to be de-
scendible like other (knight-service) lands ^^ which were
never holden by service of socage J^
3. Again, the ancient charters, (quoted in Somner's
Appendix, and Biblioth. Topogr. Britannica^ i. 236,) by
which lands were granted to Herbaldown Hospital, being
of gavelkind nature before, tenendum in perpetuam elee-^
mosynam^ are illustrations of the same rule, " the tenendum
being the proper place in all deeds for creating a new, or
specifying the old tenure, and originally intended for no
§ Somn., other purpose § ;" the distinction between the tenure and
38; Rob., the custom is preserved in the record of a case Ass. in
dj8, Cong. Com. Eanc.^ 12 Eich. II., where the tenant of the lands
*°^* * pleaded in bar, that they were " De tenura de gavelkind,
et dicit quod habetur ibidem talis consuetude," &c.—
(Spicer v. Marshall^ Ass. in Com. Kanc.^ 2 Eich. II.)
4. There are also many cases extant where gavelkind
lands in Kent are merely described in the pleadings as
IV.] Gavelkind. 49
being freehold and socage^ instead of the usual form, i.e.
"of the tenure and nature of gavelkind," Thus in the
case of Alged v. Rilce^ the gavelkind customs of guardian- •Rob.243.
ship were allowed, though the land was only pleaded to
be UberuM tenementum et in socagio. Socage and gavelkind
are often used as synonyms in reference to Kentish lands,
e.g. " Terras quse tenentur in socagio vel gavelikende t ;" ]^^rj
and Bracton, speaking of Isabel de GraveneVs case in the Hen. ui.
reign of Henry II., declares that the custom of Kent is
for the widows to have free-bench in socage lands {in
terris sockmannorum) during their lives and chastity, and
after a few sentences speaks of this free-bench " in socage"
as Dos de Gavelkind t^ Besides these instances, which t Lib. ir.
* , ' tract. 6,
might be indefinitely multiplied, we find a constant uni- c. 13, is.
formity in all records prior to the reign of Henry VIII. in
confining the name gavelkind to ancient socage in Kent ;
and in the pleadings of all cases affecting such lands before
that time, it is observable that they are described as gavel-
kind, whereas concerning lands in other counties in which
a custom of partible descents prevailed, it was only pleaded
that they were " partible, and had been parted." " Which
universal conformity of the books and records in applying
the name to Kentish lands, but never to make use of it as
to any others, could hardly have arisen by chance, were
the name equally proper to both §." § Somn.58.
III. The third manner in which the word has been
used, constantly, and in some cases very anciently, makes
it mean " the whole body of customs common on gavel-
Idnd land." These have been so often pleaded and al-
lowed as the customs of gavelkind, that it has become
common to speak as if gavelkind itself were but a set of •
customs, instead of the tenure on which the existence of
such a body is allowed. This is a confusion between the
£
50 The Tenures of Kent [chap.
tenure and its incidents, which is not warranted by the
Custumal of Kent, which ends with these words : " These
are the usages, &c. which the Commonalty of Kent (i.e.
not the thanes and prelates, or the barons, knights, and
tenants in free alms of a later time, but the small free-
holders of the county, the yeomen farmers and labourers)
claims to have in the tenements and in the men of gavel-
kind ^"
IV. The great prominence which has naturally been
given to the custom of partible descents in lands of this
tenure has led many to use the word as a mere equi-
valent of " the Kentish custom of partibility." We find
no such exclusiveness in the language of the Custumal
itself, nor is this manner of partition even mentioned in
it till nine other peculiar usages of the county have been
recorded. In the case of Wiseman v. Cotton^ 1 Sid. 138,
it was expressly said that the custom of devise, not that
of partible descents, is "the mother-custom in gavel-
kind."
Eemembering that until the time of Henry 11. all socage
estates descended equally among all the sons, which is
•c.i.§.3; said in the Mirror* to be part of our ancient constitu-
Co. litt.
14 a; tion, we see that there would have been no need to notice
BUckiu specially this partibility of the land in Kent, except on
Piowii. two grounds, viz. (1.) The Kentish usage was not a mere
229^™* partition, as it has come to be in our time, but it was
T^n.^142; curiously mingled with a custom of borough-English, (see
L.*'257i* jt?05^, Chapter on Burgage,) and (2.) In the reign of Ed-
vU^Ts' ^^^^ ^-J ^ whose twenty-first year the body of Kentish
usages, as we now possess them^ was formally allowed, the
partition of ordinary socage lands had ah'eady become ob-
^ " Ces sount les usages . . . les ques le communaute de Kent cleiment
aver en tenementz de gauylekende e en gentz gauilekendeys."
IV.] Gavelkind. 5 1
solete, and given way before the feudal doctrine of pri-
mogeniture, so that it was really necessary to place it
upon record in Kent as part of that old common law,
which the men of that county are privileged to retain "".
Thus when partition of socage had become singular,
instead of the general usage, it came easily to be regarded
as the essence and prime quality of gavelkind, and a prac-
tice grew up of trying the nature of lands in this tenure,
not by the rents and services, which are and always have
been really essential, but by "the touch of some former
partition."
Moreover it is probable that the majority of cases arising
upon lands of this kind were, as in our own time, con-
cerned chiefly with the partible descent.
Again, the disgavelling acts, being construed by the
judges (in Brown v. Brookes^ 2 Sid. 153, and Wiseman v.
OottaUy 1 Sid. 138) to aflfect the descent only of the lands
disgavelled, contributed still more to exalt unduly this
custom above the rest.
For these reasons, and because the custom of partible
descent, so to speak, " thwarted the course of the common
law" as established in later times, the confusion became
jpossible as to whether indeed gavelkind were a Kentish
tenure or a local custom of partibility ^. It is also not
* A dear explanation of this point is given by Wright : " The partible
quality of mast of the lands in Kent was not a particular or proper effect
^^ S^velkind tenure; and how particular soever the continuance of this
^«»r8e of descent may appear to us at this day, yet if we consider gavel-
™d as a species of socage tenure, and that all tenures by socage, or of the
'**t:^iie of socage, were anciently in point of succession divisible, it will
'PP^ar much more extraordinary that all other counties should depart
^•*>i this the most ancient and natural course, than that this particular
^^^Uity should retain iV ^Tenures, 214.)
Somner has some quaint reasoning on this: "That very improper
^^ incongruous question was occasioned by the want of a distinction be-
e2
\
646.
52 The Tenured of Kent. [chap.
unlikely that this mistake was helped by a habit of sepa-
rating in thought the tenure and its customs, which pre-
vailed among those who had received a false notion that
they were of diflferent dates. Many, who would at once
acknowledge that the tenure was well known before the
Conquest, were perplexed by a vague tradition, that its
customs were introduced afterwards; in contradiction to
the final sentence of the Custumal, ^^ These be the usages
of gavelkind . . . which were before the Conquest and at
the Conquest, and ever since until now :" (" Ces sount les
usages . . . que furent devaunt le conquest e en le conquest
e totes houres jeskes en ca").
• Pertmb. * Thus Lambardc* thought that these customs were im-
ported by Odo of Bayeux from the Grand Cousiumier of
Normandy, a compilation now assigned by all to the period
of Eichard I., and he and many others have repeated that
*^ still more fabulous story of the Kentish men's composi-
tion with the Conqueror by means of the surprise of the
moving wood of Swanscombe," a well-known anecdote,
which rests on the sole authority of Thomas Sprott, or
Spot, the chronicler of St. Augustine's Abbey in Canter-
bury : he lived in the reign of Edward I., and wrote circa
A.D. 1274 ; and his narrative, besides being late, is full of
evident falsities and improbabilities ® ; whereas the customs
tween the ^enus and the species^ which through inadyertency are here con-
founded, gavelkind being the genus and partition the species. So that, if
we shall but reddere singula singulis^ the doubt will quickly have an end ;
gavelkind generally spoken of and in gross is the tenure; particularly
and with reference to this partition it is a custom accompanying the land
of that tenure. Or, if you will, gavelkind is the tenure, partition and
the other properties the nature," (referring to the mode of pleading, that
the said land is "of the tenure and the nature of gavelkind.") — Somn,^
Gov,, 146.
* See the remains of his chronicle, Reliquia Sprottiana in Heame's
collection, and a discussion of their merits in Somn., Gav., 63 — 82.
IV.] Gavelkind. 53
of gavelkind are as old as the tenure, both being (in the
words of Littleton, §. 210) *' a use out of mind of man."
V. The last, and perhaps the commonest misuse of the
WOTd, is to make it a mere equivalent to any custom of
" partibility " wherever found, in Kent or in any other
county in England or elsewhere, and on copyhold and
freehold lands alike. This was unknown, as has been
said, before the reign of Henry VIII., when it was de-
cided according to the report which we have received of
the case of Wiseman v. Cotton^ 1 Sid. 138, 1 Lev. 80, that
"the custom of gavelkind is in other countries and towns
as in Ireland, Wales, many towns in Sussex, &c." This
case was founded entirely on the Disgavelling Act of
31 Hen. VIII., c. 3, in which it must be remembered,
that although the custom of gavelkind is mentioned, yet so
also is the tenure of gavelkind. But the judges, having
considered the effect of this act, decided that partibility
must be the essential part of gavelkind, because though it
existed in other places, yet partibility was the only common
point in which all these species of the tenure outside the
county of Kent agreed. They seem not to have taken
much notice of the important fact that the name of gavel-
Idnd in the early pleadings is restricted to the ancient
socage lands of Kent.
There are many partible lands in different parts of Eng-
land, to which the name of gavelkind was not in early
times applied, although no doubt their customs were de-
rived from the same source as those of Kent. Such cus-
toms do not form part of " the common law of the county,"
like the usages of gavelkind : they are traversable, and are
not noticed by the law unless specially proved. In some
parts the custom of partition did not even come from the
old Saxon law, but is a remnant of ancient Celtic usages.
54 The Tenures of Kent. [chap.
which have merely a slight resemblance to the Kentish
law, which has now lent them its name. Such is the
gavelkind of Chester, IJsk, Trelleg (in Monmouthshire),
and IJrchenfield (in Herefordshire), which is evidently bor-
rowed from the ancient " custom of Wales." IJrchenfield
was a Welsh principality at one time, and its gavelkind is
• Paach. 9, spokeu of as Consuetudo Wattensium ♦.
B 1
Heref. 32; Kouud the bordcrs of Kent the tradition of ancient
gIv.^h. tenures has remained in many copyholds, where the lands
^ ^^^' in descent are divided among all the sons, " as in gavel-
kind." Such a custom exists in Rye and other places in
Sussex, at Mile-end, and in several other manors round
London. It is said that such a custom gave its name to
Kentish Town.
The custom is common in Norfolk, especially in the
lands once belonging to the fee of the Marshal of England,
in several parts of Suffolk, in the district round Oswald-
beck in Nottinghamshire, and at Rothelay in Leicestershire.
In the Custumals of Stepney and Hackney, drawn up
late in the seventeenth century, it is expressly termed
" the custom of gavelkind."
It is also common in the west of England, being known
at Taunton Dean and other places in Somerset, in Glouces-
ter, in Exeter until its abolition (23 Eliz., c. 12), at Ware-
t Taylor, ham iu Dorset f, and over all the Isle of Portland, the
* home of many other ancient customs.
As to the Irish '^custom of gavelkind," mentioned in
Wiseman v. Cotton^ it must be always remembered that
there is the merest accidental coincidence of name between
it and the Kentish tenure. The Irish had originally no
tenure of socage, but shifted the land on the death of an
owner, not among all his sons alone, but among all the
males of his clan ; and not equally, but according to the
IV.] Gavelkind. 55
discretion of the head of the clan. There was no certain
possession of land, but the death of any one clansman
might alter the estates of all the rest. Moreover, we
learn from Sir J. Davis ' that there were other differences,
besides this great one of the principle of division, between
Irish and Kentish gavelkind.
1. Bastards inherited, or rather took their shares ac-
cording to the chief's discretion, with the legitimate rela-
tions of the deceased.
2. Females had no claim to take by descent in any
case, and by a parity of reasoning wives were excluded
from dower ^.
For all which reasons the judges, in the Case of Tanistry,
5 Jac. I., declared that this Irish custom was void, not
only for the reasons already stated, but because it was
a mere personal custom, not running with the land as in
gavelkind proper, and therefore not strong enough to alter
the descent of the inheritance ♦. •Rob. 20.
By one of the penal statutes against Eoman Catholics
in Ireland the usage was revived, 2 Anne, c. vi. §.10, to
this extent : it was enacted that the lands of Eoman
Catholics should be divided among all the sons as in
' Beport on Irisli Gavelkind, fol. 49.
K Although this exclusion of females firom taking by descent and in
dower were held to be contrary to law, and void as against the nature
of fee-sLmple, it is curious to remark that a similar exclusion of females
was aUowed] to be a good custom in an English copyhold, {Newton and
Shafto, Rob. 19 ; 1 Sid. 167, and Simpson and Quinley^ Rob. 19 ; 1 Vent.
88 ; 2 Keb. 672,) " for the estate being created by the custom, it may be
modified by the custom ; but in lands held in fee at common law, such
a claim would have been held void and unreasonable, it being against the
nature of a fee to escheat, as it might in such a case, while heirs female
were in existence." — (I Sid, 167.)
And in the Custumal of Stepney and Hackney, an exclusion of wives
from dower or free-bench was allowed.
56 The Tenures of Kent. [chap.
gavelkind^ unless the heir should be a Protestant. But
this was happily repealed by the Irish statute, 17 and
•Cciitt. 18 Geo. III. 0. xlix. 8. 1 ♦.
17fi ft •
Harg.' The name of gavelkind was also used merely to signify
note.
partibility in the statute, 34 and 35 Hen. VIII. c. xxvi.
§§. 91, 128, respecting Wales. But it is clear that as to
this Welsh custom, the name was used in a way unknown
before, the Statutum Wallice^ 12 Edw. I., using the more
exact expressions of terra partibilis^ and Consuetudo WaU
tCo.iitt. lensica ante tmtatal^. (This statute abolished the Welsh
customs of descent to bastards, and exclusion of wives
from dower, as in the Case of Tanistry ; but the partible
descent was allowed until 34 and 35 Hen. VIII. c. xxvi.)
From these instances we may establish the rule that
gavelkind is proper to Kent alone, and that those places
where a custom of partible descent prevails, are not gavel-
kind, in any strict legal sense. Several other cases were
collected by Eobinson in support of this plain distinction.
As Ralph de Colhyh Case^ concerning certain lands in
Norfolk, where it was said, " that in gavelkind it is not
necessary to shew an actual partition, because in Kent
the tenements are partible by usage of the country ;" but
in this case the custom was alleged only in certain towns,
&c., and therefore it was necessary to shew that the lands
had actually been parted.
And in a similar question respecting lands at Gelfy, it
was ruled that "it is not of these tenements as of tene-
ments in gavelkind, for there of common right they are
partible." And in 8 Edw. III., as to an estate in Saxham
(Suffolk), it was said, " You cannot draw them out of the
common course of law, if you cannot shew between whom
the custom was so used, unless you can allege the usage
of the whole country as in gavelkind.^^
IV.] Gavelkind. 57
In the same way Bracton iii. 374, and Eleta vi. c. xvii.,
draw a distinction between gavelkind and mere partibility :
*' Sicut in gavelkind, vel alibi ubi terra est partibilis ra-
tione terrsB." And Somner says, speaking of the same
distinction : —
" In the vocabulary of the Welsh we seek the word in vain,
as also in the Statutum TFalluB, where though mention may be
found of a custom like gavelkind, yet without one word of gavel-
kind. It was first transmitted thither by our lawyers, who bor-
rowed the term to make use of it for illustration's sake, like as
of late ... in 34 Hen. VIII. c. 36, where the term is but bor-
rowed, to help describe and illustrate that partible quality there
mentioned, which I am the more induced to conceive, because in
a former statute (27 Hen. VIII. c. 26) making mention of this
partition, gavelkind is not at all remembered *.'' • Somner,
So that we may conclude that this confusion of gavel-
kind with partibility, and with tenures of land beyond
Kent, is a loose and untechnical habit, helping to divert
the attention from the true meaning of the word, and
causing some even to maintain the possibility of the cus-
toms of gavelkind existing on lands not presumed to have
been originally of that tenure ^.
Here we may consider the value of a remark commonly
made that " all lands were gavelkind before the Conquest."
In the now current use of the word as a sjmonym of ^ par-
tible,' there is of course much truth in it, for primogeniture
was certainly not established in those times, and we know
that the lands and other property (real and personal) of an
intestate were divided among the heirs male, though we
have not all the details of their principle of division. In
the laws of Canute (145) it was enacted, ^'If a man fall
in presence of his lord in battle, let the heriot be forgiven,
»• Lamb. Peramb., 535; Rob. 63.
/'
58 The Tenures of Kent. [chap. iv.
and let his heirs take the land and chattels and shift them
most according to right," i.e. by the light of the laws and
usages of that portion of England to which the deceased
belonged. It was usual to make a will, bequeathing
a heriot to the lord "that it might stand," and marking
out the shares of the relations; but where an owner of
allodial land died intestate, it is probable that his sons
would take in equal shares, as we know to have been the
case with gavelkind or socage land.
There are frequent instances in "Domesday" of males
holding in coparcenary, or as it is there expressed, in
paragio^. We may grant for the sake of the argument,
that all lands before the Conquest descended as in gavel-
kind at the present day, yet that does not make it correct
to say that all their lands were gavelkind.
We cannot construe the saying in any other way,
without confusing the spiritual tenure of the Church and
the half-military tenure of the thanes, with that of the
husbandman bound down^to certain rents and, ser vices.
It would be more correct, and would have saved some
confusion, if greater accuracy had been used. " Before the
Conquest all the lands in Kent were divided equally
among the males ;" excepting, of course, the francalmoigne
lands of the Church, which were given in perpetuity,
" free from all earthly services."
' D. B. i. 63 b, "Tres allodiarii tenuerunt in paragio de rege/' and
similar notices, i. 7, 45, 46, 96, 111 b, 168, 375, &c.
CHAPTEK V.
The Nonnan Conquest.
Introdaction of the Feudal System into Kent. — Retention of Tenures in
Francalmoigne, Drengage, Burgage, and Socage. — Changes in the three
latter Tenures. — Drengage. — Its importance to an enquiry into Gkivel-
kind. — Letter of the monks of Christchurch to Henry II. — Changes in
the law of Gavelkind. — Escheat. — Forfeiture. — Alienation. — Devise. —
Descent. — Dower. — Curtesy. — Presumption that lands in Kent are
Gavelkind. — Instances of its application. — Cases where it is not
allowed.
It is most important in all enquiries as to the nature
and extent of gavelkind tenure, to start with a clear
view of the state of Kent immediately after the Norman
Conquest.
The tenure of the Churoh-lands, with a few exceptions,
became military; the lesser thanes became knights, and
the socage tenures of the yeomen and rustics were altered
to suit the new system, though to a much less extent in
this county than in the rest of England.
In the next place, the limits of gavelkind were substan-
tially fixed at that time, a long train of decisions having
established the rule so often quoted in these chapters, ,
that what was socage at the first is gavelkind now, and
wEaTSTproved to liave been ihen in a tenure superior to
socage is not gavelkind.
There is no need here to give a minute account of the
system followed by the Conqueror in consolidating the
feudal system, which had only existed here in an imper-
fect form before his reign. It is enough for the present
to say, that the higher tenures of Kent were made liable
('
6o The Tenures of Kent. [chap.
to military services, &c., throughout the county, with this
exception, viz. for special reasons one or two corporations
were permitted to hold on their estates in free alms or
francalmoigne, and the lesser thanes on those estates [drengs)
seem for some time to have retained their free allodial
tenure.
/ Socage holdings were in a great measure feudalized*,
without however losing their distinguishing characteristic,
certai nty of service . The ancient demesne of the Crown
was taken over by the Conqueror, and held by him in the
same manner as by his immediate predecessors. Thus,
after all the changes introduced immediately after the
Conquest, the land continued to be held by the same
classes as before, and in the same proportions, though
not by the same persons. The old crown-land, of which
very little was given to the new barons, constituted the
royal demesne; the thane-lands of the bishops, monas-
teries, and the three classes of lay nobles, were all alike
held by service of chivalry, except those few which certain
monasteries by special favour retained in francalmoigne,
and those small estates which for a few reigns continued
to be held directly of the Crown " in drengage," as the
lesser thanes had held them before the invasion. The
socage lands of husbandmen continued, at least for some
' The boundaries, however, of the lands held in socage, and the lands
in a tenure above socage, were not disturbed ; the former might still be
described in the same terms as before the Conquest : " Terram censualem,
tributariam, reditui annuo ceterisque plebeiorum praediorum obnoxiam, ac
Saxonum Gafol-land respondentem de qu4 in foedere Aluredi et Guth-
runi, c. 2, &c." And the lands of the nobles and gentry, though no
longer called thane-land, yet answered to its old description : ** Terra
hereditaria, colonorum servituti non obuoxia." (.Wilkins* Anglo-Sax.
Laws.) The Conqueror did not increase or diminish the amount of the
lands which were not gavelkind.
v.] The Norman Conquest 6i
time, to be held by the same class, now called villani^ and
the condition of the serfs (a small part of the population)
was hardly altered until some time before the reign of
Richard I. A good many of the smaller sort of * villeins'
had degenerated into the class of serfs, a circumstance
which no doubt must have bettered the position of the
latter class.
Before considering the tenants in free alms and by
military service, we must say a few words respecting the
drengs, or lesser thanes, who continued for some time to
be of importance in Kent, and a discussion of whose
tenure will serve to illustrate the true distinction be-
tween the free lands and the gavelkind of the county.
Spelman in his "Glossary" describes these men as a
class of small freeholders, who did not hold in socage,
and whose tenure was undisturbed by the Conquest,
"those who neither by word or deed impeded the suc-
cess of the invaders ;" on proof of this, he says that the
king allowed them to hold their lands as freely as in the
Saxon times, and that they retained the title as well as
the immunities of drengs or lesser thanes, without being
iiable for feudal services and duties.
Though the genuineness of the particular record, a his-
tory of the Saxon family of Sharnbome, on which Spel-
man, Dugdale, and other antiquaries relied, has been
much disputed, and indeed is now disbelieved by very
eminent authorities, the truth of the theory asserted by
Spelman is admitted on all hands \
* The chief authorities for it are Spehnan, Gloss., (title *Dreng*), and
Perth. Treatises; "Wright, Tenures, 62; Somncr, Gav., 125; Hale, C. L.,
c. V. Against it, Hume, Hist., i. 114 ; a tract by Dr. Brady asserting it
to be forged; Tyrrel, Hist. Engl., ii. 51 ; Sir H. Ellis, Introd. to Domes-
^y, i. xviii.
62 The Tenures of Kent. [chap.
Much of the country was left in the hands of the old
Vitu^ nobility and their dependents, and the Norman writers*
^^^^J^^ complained that the English had kept the best part. In
i.cio. fact, the Conqueror appears to have found that without
any great hardship to the mass of landowners, enough land
was legally forfeited by what was_cdled^Jiifi_treason ^
opposing inar ms the claim of William, to satisfy the new
order of nobility. In course of timeTresh rebellions pro-
duced fresh forfeitures, and a strict construction of the
general oath of fealty, imposed when the English system
of feudalism was finally settled, warranted the lawyers in
approving the confiscation of all the property of Harold's
adherents. In general, the order of society was not prac-
tically altered ; one set of nobles was replaced by another
set of nobles, in many instances the old owner becoming
the principal tenant of the Norman baron ^
The record is as follows: (it may be found in Hale's Common Law,
c. v., as well as in Spelman) : — " Edwinus de Sharbome, et quidam alii
qui ejecti fuerunt et terns suis, abierunt ad conquestorem et dixerunt ei,
quod nunquam ante conquestum, nee in conquestum, nee post, fuerunt
contra regem ipsum in concilio aut in auxilio, sed tenuerunt se in pace ;
et hoc parati sunt probare qualiter rex vellet ordinare; per quod idem
rex facit inqutri per totam Angliam si ita fuit, quod quidem probatum
fuit. Propter quod idem rex pneccpit, ut omnes ille qui sic tenuerunt se
in pace in forma praedicta quod ipsi rehaberent omnes terras et domina-
tiones suas adeo integre et in pace ut unquam habuerunt vel tenuerunt
ante conquestum suum, et quod ipsi in postcrum vocarentur Drenges."
*^ Sir M. Hale collected several instances where Saxon title-deeds were
allowed after the Conquest, "and titles made and created by them to
lands, &c., were affirmed and adjudged under William I. Many re-
coveries were had shortly afterwards, as well by heirs as successors, of
the seisin of their ancestors and predecessors." Many English names
occur in Domesday Book, e.g. in Kent, Sussex, Hampshire, Wiltshire, &c.
(7 Edw. III., Fines, in Seld. Eadmer.)
Mr. Pearson quotes the dictum of Judge Shardelowe, in the reign of
Edw. III., as affording a good account of the general effects of the Con-
quest, from Mumford's '* Domesday of Norfolk," 62 : —
v.] The Norman Conquest 63
The Church, except where special oflfence had been
given, retained its old possessions: had it not been so,
the monks and prelates would have complained. But no
such complaints are extant. On the other hand, the monks,
as will shortly be seen, appealed to charters of the Saxon
kings in proof of their title, the Conquest having made no
such sudden change in the law, that the force of ancient
evidences could be in any way impaired. As late as
7 Edw. I., in proceedings on a Quo Warranto^ the Abbot
of St. Augustine's at Canterbury was permitted to rely
on a charter of Canute.
In the case of De Bendings v. Prior of Christchurch^
given in another chapter at length, the jury found that
the manor of Westwell had been given in free alms to
the priory by the King's predecessors, scil. Queen Ediva,
wife of Edward the Elder (961), and (confirmed by) Ed-
ward the Confessor.
And in the well-known trial called the Pinenden Plea,
before the Sheriff of Kent and the whole county, the Arch-
bishop recovered the manors and lands, of which his see,
and that of the Bishop of Kochester, and their respective
monasteries of Christchurch and St. Andrew's, had been
forcibly deprived by the Conqueror's half-brother Odo,
then Earl of Kent *\ • La^i,.,
The necessity for this action (the Pinenden Plea) shews 22™"^!-
that though the law was in theory unaltered, in practice ^ ^'
"Le Conqueror ne vient pas pour ouster eux qui avoient droiturell
possession, mes de ouster eux que de leur tort avoient occupie ascun terre
en disheritance del Roy et son cozonne." — {Early and Middle Ayes of
England, c. 22 : ef. Male, C. Z., c. 5, passim.)
* A very full account of the Pinenden Plea was compiled by Philipot,
the Kentish antiquary. It may be seen in the British Museum, Lansd.
KSS. 269, a valuable record " of great use for the county of Kent." (MS.
note on margin.)
64 The Tenures of Kent [chap.
acts of robbery against the Church were common. But
before the end of this reign the King restored to the abbey
of St. Augustine's " the borough of Fordwich, which the
sheriff holds, and all the lands which the late abbot from
goodnature or fear or greedy motives, had given away to
• Extract- others, or allowed them to take*." ''Breve Eegis Wil-
So^. lielmi pro terris monasterii St. Augustini Cant, alienatis
^^•^^^- recuperandis."
And at some time or other before his death he restored
at once all the lands held by the Church in Saxon times,
by a charter directing the sheriffs of counties to be sum-
moned, and ordered to restore the possessions of the abbeys
and bishoprics, and all the demesne lands which have in
any way been separated from the domain of the Church ®.
Of course, though the law remained unchanged, it was
often broken through by the foreign nobles, who had
stepped into the place of the thanes, " It must have been
easy to find reasons, which a Norman court would consider
good enough for the ejectment of an Englishman." But
• ** Charta "Willielmi .Regis I°" de restitutione ablatorum in Episcopa-
tibus et Abbatiis totius Angliae.
** W. Dei Gratia Rex Anglorum Lanfranco Archiepiscopo Cantuar. &c.
Suisque aliis proceribus regni Anglia) salutcm.
" Smnmonetc Vicecomitcs meos ex meo proecepto, et ex parte mea eis
dicite, ut reddant Episcopatibus meis, et Abbatiis totuni Dominium, om-
nesque dominicas terras quas de Dominio Episcopatuum meorum et Abba-
tiarum, Episcopi mei et Abbates eis vel lenitate, vel timore, vel cupiditate
dederunt, vel habere consensenint, vel ipsi violentia sua inde abstraxerunt,
et quod hactenus injust^ possederunt de Dominio ecclesiarum mearum.
Et nisi reddiderint, sicut eos ex parte mea summonebitis, vos ipsos velint
nolint constringite reddere. Quod si quilibet alius, vel aliquis vestrum
quibus banc justitiam imposui, ejusdem querelae fuerit, reddat similiter
quod de Dominio Episcopatuum vel Abbatiarum mearum habuit, ne prop-
ter illud quod inde aliquis vestrum habebit minus exerceat super meos
Vicecomites vel alios quicimque teneant dominium ecclesiarum mearum
quod praBcipio." — (Somnery Gav., App. 191 ; Rymer, Feed,, i. 3.)
T.] lie Sormam Qmqmest 65
after all tiie rebeOioiis and confiscation, and all the law-
soitB and appeals to foroe in order to get a title to land
be£D9« the Domesday commissioners airived, it seems that
fir the largo- part of the second class of owners, the gentry,
bdcmged to the old English fiunilies.
It WB8 aaid that the lesser thanes were called Drengs.
Their tenure was allodial, the land free and in the power
of the owner to dispose of by gift or sale, but subject to
the constant and common land-tax (hidage), and in Kent
subject also to relief, and to fines for certain offences,
payable to the king ^. « sui^
It has been said by some writers that ^^drengage" did DooMid.
not exist in the south of England at all. What is meant ^
by this is, that a peculiar tenure, by free services of pro-
viding couriers and horses, was not known in the south,
though common in the northern and eastern counties, and
known by the same name as the free tenure t- fiudBook
But the entries in Domesday Book shew that it wasKxdi*;
Nidioltoii
common in Kent. In the Survey of Canterbury several and
mentions are made o{ Allodiarii B,ud burgesses holding lands uist.
in attodioj which even now pay no socage quit-rentsy and have mwdMnd,
not ever been treated as gavelkind.
When the lands of the Church were feudalized, some of
the Kentish ecclesiastics gained by petition the right to hold
in francalmoigne as before. The question then naturally
arose, what was to be the tenure of the drengs on their es-
tate. The prior holding in francalmoigne owed no military
service, and wanted no military followers. It was there-
fore granted (as will be seen from the record following in
the text) that the drengs might retain their old tenure on
the estates of the monastery of Christchurch in Kent ^
' As comparatiyely little has been written about the tenure, it may bo
worth while to collect a few notices of it into one place. It continued,
F
66 The Tenures of Kent, [chap.
This was the case for several reigns; nor did the tenure
by drengage cease to be of importance till late in the reign
of Edward III.
The priors of Christchurch had long been independent
of the Archbishop of Canterbury, and had as much au-
thority on their own manors as could be held by any
subject. By a charter of Edward the Confessor they had
full power over the thanes, soil, the drengs, of whom we
have been speaking ; and this was confirmed to them by
William I., and afterwards by Henry I., in two charters
for the most part, in the north, but charters of Henry I. to the Abbot of
St. Augustine's mention it in Kent.
The Great Roll, 18 Hen. II., mentions aids paid by the drengs of
Northumberland. In the Close Roll 7 John 2, occurs a precept to
seize all the "drcngages and thcinages and serjanties,'' alienated by the
Crown since the coronation (in Lancashire). Henry III. granted to Hil-.
dred of Carlisle the drengs' lands held of the Crown in Cumberland.
(Pasch. 11 Joh. 9.) It was declared to be a tenure in eapite in the
reign of Henry III., {Ahlrev, Rot. Orig,, 11 Joh.) A notice of a trial
concerning lands of this tenure is given in Madox, Exch., 333, 487, 659,
and notes of tallages, aids, and scutages paid by the tenants to John and
Richard I., (ibid., 714).
In 6 Edw. I., North. 7, (Ahhrev. Hot, Orig.,) the king declared that
the service was certain and in eapite^ and different from knight-service.
It existed in Tyndale a.d. 1292, in Cumberland till a.d. 1305, and is
mentioned in the Roll of Parliament, Trin. 21 Edw. III.; Ebor. 191 ;
Co. litt., 5 b. ; Madox, Exch., pass. ; Ellis' Introd. to Domesday.
One or two more notices must suffice. From Dugdale we leam that
tbe drengs must have been very like the tenants in petty serjeanty of
later times, e.g. " In Cukney manebat quidam homo qui vocabatur
' Gamilbere * et fuit verus Dreng ante Conquestum. Tenuit ii. carucatas
terne de domino rege in eapite, pro tali servicio, de ferrando palfridum
domini regis, &c., quotiescunquo ad mancrium suum de Mansfield ve-
ncrit." — {Baron, AngL, 118 a. ; Mona^t, Angl., ii. 598.)
**In Newton tempore Regis Edwardi fuerunt v. hidae. Modo sunt
ibi vi. Drengs J^ — {Domesday Book, Derhy ; GaU, Consuetudines, 773.)
In Co. litt. 5 b. they are called " Dreuchs, free tenants of a manor,"
but Coke afterwards, in 4 Inst., returned to the more common form of
the word. (See Blount's Glossary.)
v.] The Norman Conquest. 67
in Latin and English still extant: *^And authority over
all the thanes, as I to them have granted ♦." • Dngd.
When the division of the revenues was confirmed by «cSSiter-**
Archbishop Lanfranc, it was complained by the monks s^ner,
that he took all the barons and knights, and left them ^^' ^^^'
only rustics and yeomen f . t Tanner,
But the monks also retained these thanes or drengs as MonaSica,
tenants, besides their yeomen and cottagers. Oe^Le of
As the monks were to retain their old tenure of franc- ^]J^^
almoigne, it was unnecessary for them under the iiew^^'^^'g^
regime to have any military, tenants.
A record of all the proceedings in the case has been
preserved at Canterbury in the archives, from which
Somner and Spelman took their copies, and as it is full
of instruction as to the old Kentish tenures, parts of it
are extracted here. It is a letter from the monks to
Henry II. After enlarging upon the antiquity and the
venerable character of the monastery of Christchurch,
the sub-prior and monks complained to the Kiug that the
Archbishop had recently attempted to usurp seignorial
rights over their lands, which as appears from this docu-
ment, as well as from a multitude of other records, were
held immediately in frtmcalmoigne of the Crown.
"To their most excellent lord, Henry, by the grace of God
King of the EngUsh, G. the sub-prior and the monastery of
Christ's Church in Canterbury ^. . . .
* "Exdell. D^. Henrico D. G. Anglomm regi G. subprior et conventus
Bed" Christi Cantuar. . . .
''Flebilis et ultra modum afflictus, &c., &c.
**Qai banc novitatem non admiretur, quod dominus Arcbiepiscopus
"icit noe debere de eo terras et possessiones nostras tenere ? cum jam per
quingentos annos et eo amplius, k tempore scilicet magni Tbeodori, qui
^^'las partitus est, et utrique parti suam portionem assignavit, Conventus
f2
68 The Tenures of Kent. [cha
" Who would not marvel at the lord Archbishop's claim that we
ought to hold our lands and possessions of him ? Since it is now
five hundred years and more {sciL from the time of the great
Theodorus, who divided the lands and assigned to either party
its share), that the monastery has possessed its portion in peace,
and administered it freely, which is also fully attested by the
charters of kings and pontic, from the tenor of which it is clear
that until this unhappy time the archbishop had no more right or
lordship in the lands of the monks, than they in the land of the
archbishop. And that no one may doubt this, a charter of the
king St. Edward, and one of Anselm the archbishop, and many
others from kings and pontiiflfs are produced by us. And as to
the assertion that it was Lanfranc who divided the lands, the
truth is, that when the Normans after the Conquest had occupied
the lands of all the churches. King William at the instance of
Lanfranc gave them up, and Lanfranc restored to each church
what it had possessed before, keeping for himself what had be-
longed to his predecessors. But that the division was not first
made in his time is witnessed by deeds of indenture made before
the time of St. Dimstan between the archbishops and the monks
concerning exchanges of many different lands ; moreover this is
attested by some most ancient records, which in the English
tongue they call 'land-books,' or title-deeds of land. And be-
in pace possederit portionem suam, et libere administravcrit, quod et
chartse Regum et Pontificum plenius attestantur, ex quarum tenors per-
spicuum videre est, quod usque ad haec infaelicitatis tempera Archiepis-
copus nihil juris vel dominationis plus habebat in terris Monachorum,
quam Monachi in terra Archiepiscopi. Et ne super hoc quisquam dubitet
proferantur in medium charta S. -^dwardi Regis et Sancti Anselmi Ar-
chiepiscopi, et aliae multa) Regum et Pontificum. Quod autem dicitur
Lanfrancum dividisse terras, id est, quod cum N'ormanni capta AngliA
omnium ecclesiarum terras occup^ssent, Rex Willielmus ad instantiam
Lanfranci, eas resignavit. Lanfrancum vero singulis ecclesiis reddidit
quod antea possederant, sibi autera quod antecessorum fuerat suonim
retinuit. Quod autem tempore Ltmfranci non sit facta terree divisio,
testantur chirographa ante tempera beati Dunstani facta inter Archiepis-
copos et monachos de concambiis terrarum multarum ; sed et hoc attes-
tantur scripta vetustissima quaa lingua Anglorum Zand-bokes, id est,
V. The Norman Conqmst. 69
cause in the time of King William there were not yet any knights
in England, but only ' throngs/ the king ordered that they should
be turned into knights, for the defence of the realm.
" So Lanfranc turned his threngs into knights ; but the monks
did not, but out of their portion gave to the archbishop two hun-
dred pounds' worth of land, that he might defend their land with
his knights, and also manage all their business at the Court of
Rome at his expense. Wherefore up to this time on all the lands
of the monks there is not a single knight, but only on those of the
archbishop. For all which causes we marvel greatly both that he
says such things, and that you give countenance to him in in-
vading our property and lands by your authority and by your
servants in your name, when the lands are nothing to him, but
our tenure after God is of you in chief, even as his; which is
manifest^ because when an archbishop dies his lands are forthwith
taken by the Crown, but it has never in all ages been heard that
our lands were so taken at any time. Wherefore,*' &c.
The monks won their cause, and were acknowledged by
the archbishops in future to be independent tenants of the
king; and the record just cited was preserved by them
with the utmost care. We are told that in the first page
of the MS. is written in Latin in an old handwriting,
terramm libros vocant. Quia vero non erant adhuc tempore Regis
WUlielmi milites in Anglic sed Thren^es, prsBcepit Rex ut de eis milites
fierent ad terram defendendam. Fecit autem Lanfrancus Threngos sues
milites : Monachi vero non fecerunt, sed de portione suA ducentas libratas
terrae dederunt Archiepiscopo, ut per milites sues terras eorum defenderet,
et at omnia negotia eorum apud Curiam Romanam sois expensis expe-
diret. XJnde adhuc in tot& terr^' Monachorum nuUus miles est, sed in
terrA Archiepiscopi. Terram autem duccntarum librarum adhuc habent
Archipiescopi : pro quibus omnibus valdd miramur quod vel talia dicit,
Tel quod assensum ei praebetis, quod vestr^ auctoritate et nomine vestro
per ministros vestros res et possessiones nostras invadit, cum nihil ad eiun
Bpectent, sed nos teneamus post Deum in capite de vobis, sicut et ipse ;
quod manifestum est, decedentibus Archiepiscopis, quia teme eorum sta-
tim confiscantur, a seculo autem inauditum est, quod possessiones nostne
confiscatae fuerint aliquo tempore. Quapropter," &c. — {Somner, Gav.f
App, xxi. ; and Spehnan, Gloss., tit. * I>reng.*)
70 The Tenures of Kent. [chap.
"This book must be preserved with great care, for though
it seem of little worth, yet it is worth much, and is an
• Sornn. exceedingly precious book to the monks of Christchurch*.''
By this record we learn that the monks of Christchurch
were immediate tenants of the Crown from very early
times. Lanfranc renewed the arrangement, which was
often confirmed in later reigns. This may be seen in
the pleadings on Quo Warranto concerning the Christ-
church estates ^.
The charter of Edward the Confessor on which the
monks placed so much reliance is extant still: it is a
formal confirmation of all the gifts in francalmoigne made
before the Conquest to the monks of Canterbury. The
names of the manors are set out in a schedule ^
Perhaps the most important part of the whole record is
the paragraph about the drengs, or throngs. When the
Archbishop, the Bishop of Eochester, and the Abbot of
St. Augustine's became spiritual barons by military ser-
vice after the year 1070, the monks wished to keep their
francalmoigne, and therefore gained leave to keep their
"lesser thanes" for tenants, without their being turned
^ Placita de Quo Warranto, Edw. I. and Edw. II., pp. 325, 367.
* It is copied in Dugd. Monast. i. 109, and the Codex Diplomaticus,
The original is in the British Museum, Cotton MSS. Claud. A. 3, fol. 5.
The names of the estates mentioned in the schedule, or particulars to
the grant and confirmation, are for the most part legible. Some blanks
have been made by decay of the MS. *
The estates (which will be described in another chapter at greater
length) were the manors of Sandwich, Eastry, Thanet, Adisham,
Chertham, Godmersham, Welles (Wcstwell), East Chart, Chart,
Berwick, Werehome, Apledore, Mepham, Cooling, Freningham, Holing-
bourne, (East) Farleigh, (East) Peckham (in Kent).
One of the other charters referred to in the text as having been granted
In ancient times to the monks of Christchurch is ** The Privilege of King
Ethelred," dated a.d. 1006, extracted in the Monasticon, title * Canterbury
Cathedral,* vol. i. p. 97.
v.] The Norman Conquest 71
into knights, which would have been unnecessary and
inconsistent with a purely spiritual tenure.
We see that the monks paid a very high price for their
privilege, soil. " 200 librates or pounds'-worth of land, in
lieu of all military services."
Opinions have been somewhat divided as to the extent
of a librate of land.
Blount thought that it might be a measure of 240 acres,
arguing from the assumption that a pennyworth or de-
nariata was an acre*^. There are, however, good reasons •Qicw.
for supposing that the librate varied according to the
quality of the land from twenty to forty acres. We cannot
attempt to define its extent with precision f- tco. utt..
It is probable that the tenure of drengage on the estates
of the priory of Christchurch, was not retained nearly as
late as in the North of England.
At any rate in the " Book of Christchurch," in Lam-
barde's collection of Kentish records, cited more fully
below, no such tenants are mentioned. In their place ap-
pear milites or knights holding of the priory by fealty and
military service ; and this is also the case in the Testa de
Nevilj or roll of knights'-fees compiled about the beginning
of the reign of Edward II., and in the " Book of Aid,"
20 Edw. III., or record of all the ancient military lands in
Kent. But whether the lands of the drengs were counted
m later times among the purely military fees, or among
* Heame, "Black Book of the Exchequer/' 31. ''In the thirteenth
cenluiy sixpence per acre seems to have been about the average value for
arable land, though meadow was at double or treble that sum. We are
lost in amazement at the constant recurrence (in Domesday Book) of two
or three carucates in demesne, with other lands occupied by ten or
a dozen riUani, valued altogether at 40s. as the return of a manor which
would now yield a competent income to a gentleman." — {Hallam, Middle
Ages, vol. iii p. 363.)
/
72 The Tenures of Kent. [chap.
those held in petty serjeanty, or any other variety of
socage, it is clear that they have never been included in
the gavelkind land of the county. That this was always
known to be a true distinction is shewn, inter alia^ by the
fact, cited above from Somner, that the houses in Canter-
bury of this tenure always remained free of any socage
quit-rents.
It may be useful here to give a brief summary of the
law relating to gavelkind proper, as it has descended to
our own time.
Tenure by socage was changed in almost all its incidents
throughout England except in the county of Kent.
The severity of the feudal system pressed in some
respects as hard on tenants in socage as on those who
held in chivalry. They became liable to escheat, for-
feiture, attaint, aids, reliefs, and fines on alienation, and
\ the ancient liberty of testamentary disposition was taken
I away.
But the men of those parts which had first peaceably
■ submitted to the Conqueror, had been confirmed in all their
ancient laws and liberties. London kept its customs, as
afterwards did most of the ancient boroughs \ Kent was
firmly attached to the Conqueror by the treaty, which he
never broke, that the law of Kent should not be changed.
" Thus," says a recent writer, " the old tradition of
a separate nationality and little differences of dialect and
customs were still stronger in the very neighbourhood of
the capital, than the remembrance of ancient union ™.''
* See the Domesday Survey of Hereford : ** Rex habet Hereford in
dominio, et Anglici Manentes ibi habent suas priores consuetudines." In
the same way the men of the ** English borough of Nottingham" retained
their custom of descent to the youngest son.
" Pearson, c. 22.
v.] The Norman Conquest. 73
We will now examine somewhat more minutely the
incidents of gavelkind in Kent after the Conquest. It was
the highest species of ancient s ocage, mid th e - H )ost im-
portant.
As to escheat and forfeiture.
" Gavelkind lands," says Blackstone, " which seems to
be the old Saxon tenure, were liable to forfeiture for
tre ason, 17 Edw. IV., st. i. c. 16, but in no case to escheat
This is going farther than is claimed by • steph.
. BL i. 440.
the Customs of Kent, which are only the remains of the
old common law; that law, as we have seen already,
recognised escheat for felony in several different cases t if
the gavelkind tenant when indicted for felony took sanc-
tuary, were outlawed, or fled abroad, his lord took the
escheat; if the felon suffered the judgment of the law,
the heir took by descent with no escheat or corruption of
blood. This is not only the old, but the modem Kentish
lawt°- t Robins.
As to the Kentish custom to devise. Dyer.sioi
Although the power to devise land by custom is now 276. ' *^'
of no value, it was long a most important question in
Kent, whether all tenants of gavelkind might devise such
land by force of a general custom.
It seems that this custom was claimed to extend to
parol devises, and therefore the importance of the question
^as not quite taken away by 32 and 34 35 Hen. VIII.,
or by 12 Car. II. c. 24 ; it ceased when the Statute of
I*rauds enacted, ^^that all devises or bequests of any lands
or tenements deviseable either by force of the statute of
^lls, or by this statute, or by force of the Ctistom of Kent ^
&c., shall be in writing, and signed °," &c., &c.
' Chapman*8 Case, Eo. Bep., 368.
• For the arguments for and against the custom, see Somner on Gav.,
74 The Tenures of Kent [chap.
On a consideration of the whole question, it appears that
such a custom did not properly exist, as far as we can now
judge. It was, however, allowed at last in the much
litigated case of Launder v. Brooks^ Cro. Car., 561, and
was therefore noticed to be at that time law in the Statute
of Frauds just cited.
The words of the Kentish Custumal, on which reliance
was placed by those who asserted the existence of the
custom, are merely these: "And that they may their
lands and tenements give and sell (^give or sell,' varia
lectio) without license asked of their lords, saving to the
lords their rents and services due out of the same tene-
ments P."
The custom is taken strictly, and it is hard to establish
by these words a custom to devise. One of the greatest
privileges enjoyed by the gavelkind tenants was free
alienation inter vivos without licence, which was denied to
the inferior husbandmen, as is shewn by the Liber EcclesuB
Christi quoted below. The mention of the rents and ser-
vices in this passage, and in that relating to alienation by
an infant (where the same phrases are employed) go far
to shew that nothing but alienation inter vivos was in-
tended.
pp. 151 — 172, and a tract on the subject there reprinted by him. These
arguments are also set out in Robins, on Gav., bk. ii. c. 5. There are,
however, one or two points not quite cleared up in either of these
places.
p *' Et quilz pusent lour terras et tenementz doner et vender (doner ou
vender) sanz conge demander a lour seignerages : sauves a seignerages
les rentz e les services dues des mesmes le tenementz."
It should be remembered that the licence to infants to aliene by feoff-
ment is expressed in the same way : ** Doner et vendre (doner ou vendre)
a lour volunte sauves les services au lour seignerages com il est devant
dit ;" yet it was never contended that infants in gavelkind might devise
at fifteen by the custom.
v.] The Norman Conquest 75
Before the Conquest there was free liberty of devising
lands, if the right heriot were bequeathed to the lord, who
otherwise, it seems, might upset the will. It was argued
from this that the liberty must have remained on gavel-
kind land, where all the ancient privileges were allowed
by the Conqueror to remain. On the other hand, we
know that several alterations were made in the tenure
of gavelkind, as well as in other socage tenures, by the
Norman kings, and that there is no proof that the power
of devise, if it existed, was not taken from the tenants.
At any rate they never claimed it afterwards, even in the
solemn enumeration of their privileges known to us as the
"Kentish Custumal," nor is it mentioned in any of the
chartularies which profess to record the privileges of all
classes of tenants in Kent respectively.
It must not however be forgotten that, if the Custumal
omits any mention of devise, yet it does not specially
provide that all gavelldnd land shall in every case be
divided inter masculos; on the contrary, the rules of the cus-
tomary partition are expressly made for cases where land
of this nature had come down by inheritance to the father,
and do not mention his own acquisitions or purchases*^.
Over the jEamily estate (hereditas aviatica) he could not
by the old common law have any power of free devise.
There were special customs in Canterbury, Minster
manor in Thanet, "the Monks' borough" in Seasalter,
4c., to devise lands according to the custom of the
* " Si ascun tenant en gavylekendc murt et seit inherite de tcrres e de
tenementz, que touz sea fils partent eel heritage per ouele porcioun.'* —
[KnUUh Custumal.)
The custom of the ancient borough of Bristol illustrates this ; it was
iK>t lawful to devise any lands or tenements which had descended to the
WgesB by inheritance. (Lidiard's Case ; Calend, Genealog, ; Esch. Roll,
«Pidir. I. 80.)
76 The Tenures of Kent. [chap.
borough, or of the manor, which would not have been
needed if there were a general custom throughout the
county ^ This, however," is not a conclusive argument,
though generally put forward as such, because there
might possibly have been an ancient custom of devis-
ing gavelkind not aflfecting a special custom of devising
military lands, or some inferior lands of husbandmen, or
copyholds.
Eobinson notices "that most of the ancient wills of
gavelkind lands in Kent (collected by Somner, 152, 153),
mention feoflfees to uses, particularly the will of Fineux,
chief justice of C. B., and Butler, who had there been any
custom to devise could not have been ignorant of it."
Among them was the will of Thomas Bourne, of Tenter-
den, May 3, 1538, expressly noticing the "Act to avoid
Uses of Wills," and bequeathing money to his sons that
they might consent to carry out the provisions of his will
respecting gavelkind lands in Hawkhurst, and a house and
shop in Tenterden, of the same tenure.
But the most important case was that of Sanders, who
in 9 James I. devised his lands at Maidstone to another,
' In Canterbury both the citizens and their wives, notwithstanding
coverture, have a customary power to devise freeholds. (Hast. xii. 612.)
** Consuetudo civitatis Cantuar. talis est quod quilibet de civitate prae-
dictfit potest legare messuagia sua quae habet in eadcm civitate adeo bene
eicut et alia bona et catalla sua.^' — {Itin. Kane. 55 Hen, III., v. 85.)
There is no special restriction of this liberty to tenants of gavelkind
any more than in the following instances : " In 55 Hen. III., Itin. Kane.
18, it is pleaded that the tenements within the borough of Minster (in
Thanet) were deviseable according to the custom of the manor.'* — {Roh.
ii. c. 5, Wilson's note,) In Assis. in Com. Kane. 4 Ric. II., in an assize
brought against one Bolle and his wife by one Croke and* his wife, it was
pleaded that all lands and tenements in the Monks' Borough in Seasalter
belonging to the Prior of Christchurch, had been from time whereof, &c.,
deviseable by the tenants and their wives, notwithstanding coverture.
v.] The Norman Conquest TJ
" and afterwards the will was avoided for a third part by
reason of a tenure in capite of a small part of the land
(ancient knight -service), and the third part of all the
residue of the lands, being gavelkind, did escheat to the
king for want of heirs. Whereby it is evident that gavel-
kind lands in Kent were never deviseable by custom ; and
so it was determined by the court, Pasch. 37 Eliz. C. B. in
Halton V. Starthop^ upon evidence to a jury of Kent, and
it was then said that it had been so resolved before ♦ "." • Somn.
164.
Besides this no trace has been found "in the early >
records of Kentish iters of any one title made under a d
devise by the general cu«tom of the county, or indeed
any footsteps of such a custom \"
Notwithstanding all this, it came to be at length ad-
mitted for law that such a custom existed. The chief
reasons given for it were as follows.
The customs of Kent are part of the old common law,
"and lands during the Saxon times were deviseable."
The wills of Athelstane 'Athelingt^ a..d. 1015, and of t Somn.
198.
a thane named Burhtric of Mepham % were cited at length, j i]amb.
but it is diflBcult to see what they could have to do with ^f™^*
gavelkind.
The court produced Lambarde's copy of the latter will
as a precedent for the custom in Launder v. Brooks^ Cro.
Car. 561, and its production appears to have materially
assisted the verdict, which after several trials on the will
of Mr. Brooks, was given in favour of the custom. The
contents of this ancient will are briefly these : after a be-
quest to the lord of jewels, liorses, hawks, hounds, &c., as
a heriot to the lord and lady " that this will may stand,"
and an enumeration of witnesses, Burhtric and his wife de-
vised to the monks of Eochester two sulings at Denton,
• 3 Rep. 35 a ; 2 Sid. 154. * Wilson, note to Rob. ii. c. 5.
78 The Tenures of Kent. [chap.
and two in Langfield, with the manors of Falkham, Water-
ingbury, Snodland, &c. ; and to the monks of Christchurch,
Canterbury, the manor of Mepham. He left also certain
rent-charges in Wateringbury, Haselholt, Birling, &c., to
the monks of Eochester, with certain other legacies and
bequests ; and he devised ^ Hartsham' to two of his kins-
men, the inland to one and the outland to the other, i.e. the
socage tenements.
Most of these lands are still held in francabnoigne by
the deans and chapters of Eochester and Canterbury.
This curious will ° c an hardly J^ftrgli'fiH npnn ^ prf^yinpr
that gavelkind tenants had a cust omary pow er of devise.
• Lamb. AThlOSt it sBbws tnat a tnane or noble, as Burntnc was ♦,
499
might leave his manors and demesnes, and apparently the
seignory of the lands in the possession of his socage tenants,
by his will, after observing certain rules and ceremonies.
No distinction was drawn by the judges between the
free ^booklands' of a noble, and the inferior holding of
a rustic; neither did they notice the old distinction in
the Kentish Custuraal between inherited and purchased
lands of the nature of gavelkind. The decision, however,
t Somn. overset the judgment in Halton v. Startlwp -j", and esta-
blished the custom for the future. It was afterwards
several times confirmed ^.
° For more minute particulars concerning this will, see the whole ex-
tracted and translated, Lamb., Peramb., 492, 499 ; Reguirum Roffensey
26, 110; Hickcs' Thesaurus; MS. Report of Brown and Brooks and
Launder and Brooks, cited by Robinson; Hasted, iii. 358, 472; ii. 369,
425, 445; v. 106; cf. Somner, Gav., 85, 198.
' Arthur v. Bockenham, Fitz-Gib. 233 ; Bunker v. Coke, Salk. 237.
A doubt arose whether this custom allowed a devise of lands which
the devisor did not hold at the time of making his will, and it was
decided that the custom applied only to tenementa su^, i.e. '* before he
can dispose of them, they must be sua, and if not sua at the time of the
devise they are out of the custom." (Holt, Ch. J., cited by Robinson in
v.] The Norman Conquest 79
And in another way this decision in Launder v. Brooks
was very important, as recognising that the proper period
for determining the incidents of gavelkind, or ancient socage
in Kent, is that of the Norman Conquest, or earlier ^.
As to guardianship in gavelkind.
This guardianship was very similar to that of ordinary
socage tenants, though there are some peculiarities con-
cerning it which seem to require a separate notice.
The general rules of guardianship in gavelkind were
thus briefly summed up by Lambarde : —
" If the child be under the age of fifteen years, the next cousin
to whom the inheritance cannot descend shall (by appointment of
the lord, if divers be in equal degree of kindred) have the educa-
tion and order of his body and lands until such time as he shall
attain unto that age ; even as the guardian in socage at the com-
mon law shall keep his until the ward come tq fourteen.
" And in all other things also this customary guardian is to be
charged and to have allowance in such sort and no other than as
the guardian in socage at the common law ; save only that he is
chargeable to the heir in accoimt for his receipts, and subject also
to the distress of the lord for the same cause ; yet do I not hear
that the lords take upon them at this day to commit the custody
of these infants, but that they leave it altogether to the order of
the common law *." • Peramb.
'* So that upon the whole matter the odds consist only in this,
that guardian in socage at common law shall keep the land till the
infant be fourteen years of age, and guardian by the custom till
he be fully fifteen f.'* t IWd.
564.
(a.) " The next cousin?^
In gavelkind, as in other species of socage, no military
Mhur V. Bochnham.) For the present law, sec 7 Will. IV. and 1 Vict,
c. xxvi. § 24.
y Wiseman v. Cotton, 1 Sid. 77. 135; Lushington v. Llandaffy 2 New
Rep., 491.
8o The Tenures of Kent [chap.
services being properly due from the tenant, the lord of
the fee had no claim to take the profits in order to provide
a substitute to perform personal services of chivalry.
It was, however, claimed on behalf of the Archbishop
• Rot. 7, of Canterbury in 6 Edw. II. *, that " after the death of a
gavelkind tenant leaving an infant heir, there is a custom
to deliver his lands and tenements into the hands of the
then archbishop, who is entitled to the guardianship, and
may assign it at his pleasure to another by the custom of
t Vide Kentf." It was found both in this case and in another,
c6. '"* 21 Edw. I.J, that by the custom of gavelkind "the arch-
iidw' bishop might commit to whom he would the custody of
u^ Kani *^^ ^^^y ^^^ lands of his tenant, being an infant." But
§ Rot. 72. an entry in the same roll § shews that no such custom
rightly existed, though the archbishops had usurped by
force the guarditoship of certain gavelkind lands, " and
the jury expressly found that no such wardship ought
to- go to any but the next relations (proximis parentibus)
to whom the land cannot descend."
The priors of Christchurch appear to have claimed the
same right in some at least of their manors, for we find
an entry on the Quo Warranto rolls denying such a claim
in the manor of Orpington ''.
* ** In Orpinton non habet Prior wardam neque maritagium de gavel-
kjnde^—^Fleas of Quo TFarr., 7 Edw. I., p. 367. See the Hundred
Rolls for Kent, 3 Edw. I., 201, 202, 204, 207, 208, &c.)
The Chistnmal is clear upon the point :
" Et si le heir ou les heirs seyt ou seyent dedeins le age de xv. ans,
seit la nouriture de eux bailie per le seigneur al plus procheyn del sank
a gui heritage ne pent descendre, issi que le seigneur pur le bail rien ne
prend. Et qu'il ne seit marie per le seigneur mes per sa volunte demeine
et per le conseil de scs amys s^il veut."
Compare the message of Henry III. to the sheriff of Kent in the
Close RoUs :
" Certum est quod terrarum quae tenentur in socagio vel gavelkind
T.] The Norman Conquest. 8 1
The claim that such guardianships were assignable,
is of course contrary to the modem doctrine that the
guardian exercises only " a personal trust for the infant's
benefit."
The only customary power given to the lord was that
of selecting a guardian among the kinsmen of equal degree J
but even this was rarely exercised, the lord being account-
able for the default of any guardian appointed by him.
(h.) '' Of his lands/'
The title to guardianship cannot arise, unless the infant
is seised of lands or hereditaments lying in tenure of
socage ♦. The guardian cannot present to a benefice in ♦ Co. litt.
the right of the gavelkind heir, " because he cannot be note.
accountable therefor, for he can make no benefit thereof f." t Co.Ktt.
It has been said that he may present in the name of the
infant, but it is now settled that an infant of any age
may legally present \
This guardianship is confined to lands, &c., where the
infant is in by descent; though a contrary opinion has
been supported J. J Co. ntt.
(c.) " Chargeable to tlie heir in accounts ssbin.;
The action of account would not lie during the nonage ise.^ *°*
of the infant, but in equity § the infant, by his next friend, § Wiiion's
n. to Rob.
ii. c 3.
nulla pertinet ad dominos custodia, sed solummodo ad parentes propin-
qniores ex ilia parte qui ad successionem hereditalis aspirare non pos-
ront."— (i2()f. CUm., 37 Hen. III., 19.)
** If the inheritance may descend to the relations of both the paternal
and maternal lines with a preference only to the former, it seems there
<*mot be a customary guardian unless the next of blood be a lineal
•Dcestor or of the half-blood." — {Wilsons Note to Boh. Compare now
^' litt., 88 b and note, and the New Inheritance Act, 3 and 4 Will. IV.,
«• 106.)
* Bargrave's note to Co. litt., 89 a. He mentions a presentation of
*^ infant one year old being legally allowed. As to whether it would
^ allowed in equity, 2 Eq. Cas. Abr. Infant., and the same note.
82 The Tenures of Kent. [chap.
might sue for an account before the expiration of that
• 2 Vern. period *.
342.
{d.) " Subject to the distress of the lord.^^
t Fitz. It was found in 18 Edw. II. f that the usage and custom
220. * of Kent was for the lord, on the heir attaining fifteen years,
to cause the land to be delivered to him, and to distrain
the guardian for an account ^.
As to alienation by an infant in gavelkind.
Lambarde named three things requisite, in his opinion,
for an alienation of this kind: "(«.) That he be an heir
and not a purchaser of the land ; {b.) That he have recom-
pense for it ; ,{c.) That he do it with livery of seisin by his
own hand and not by warrant of attorney, nor by any
: Peramb., othcr manner of assurance J."
{a.) As to the first point, Lambarde's opinion is sup-
ported by several ancient authorities, by the language of
the Kentish Custumal, and by the modem authority of
Mr. Wilson, editor of Robinson's "Gavelkind" (third
edit.), who considers the point at least doubtful, the
guardianship of the infants being confined to those in
by descent, and the custom being that such heirs at fifteen
may aliene by feoffment. Serjeant Hales, "who was a
Kentish man," was of the same opinion.
On the other hand, Robinson himself took a wider view,
extending the privilege to purchased as well as inherited
lands. In support of this he cited several very general
expressions from records of the reigns of Henry III.,
Edward I., Edward III., and Richard II. ; to which it
is objected that in most of these either we know, or we
may justly infer, that the infants mentioned in them took
by descent.
It is, however, suggested as a possible solution of the
*• The case is given at greater length by Eobinson, bk. ii. c. 3.
v.] The Norman Conquest. 83
difficulty, that before the passing of Quia Emptore^y j.
Jl% Ed v . I., there was no alienation permitted of land t
inherited, though "purchases and acquisitions'' might be
freely aliened, if enough were retained for the necessities
of the family *. In the course of time alienation of one- • Laws of
fourth was allowed f , and it seems of a moiety by Magna toTgw
Charta (i-e. sufficient had to be retained to satisfy the dues Ti^f' ^' .
^ •' T Mirror, i.
of the chief lord). There would be no special privilege §• ^'
required in Kent for the alienation of purchased lands
on attaining full age (fifteen years in all gavelkind lands) ;
but a liberty for heirs to aliene their inherited lands at
that age would be, before 18 Edw. I., an important and
peculiar privilege, which would naturally be recorded in
any enumeration of the ancient rights of gavelkind men.
The Custumal of Kent, found in the old collections of
statutes, e.g. TottePs edition of Magna Charta, &c., appears
to be a record of such things as had been found by the
whole county in ancient times ; these are noticed to have
been allowed in eyre, 21 Edw. I., in Lambarde's copy.
But it is not said anywhere that they were not drawn up
long before Quia Emptores. Nor is that copy supposed to
be the oldest extant; for SomnerJ supplies a clause t p. 170.
omitted in it, respecting the immediate entry by the heir
on the lands of B,felo de se^ from an older copy "registered
in a quondam book of St. Augustine's Abbey at Canter-
bury," (then in the library of Sir Eoger Twisden ""). This
' "The Book of Evidences of St. Augustine's Abbey, containing Con-
t^udines Kancioi,'' (Brit. Mus.,) Arundel MSS. 310.
There are many copies of the Custumal extent, sail. Lambardc*8 copy,
printed in the "Perambulation of Kent," which has been received as
j^gal evidence, Launder v. Brooks, Cro. Car., 562 ; Tottel's copy, printed
^ " the old Magna Charta," and other collections of statutes ; an im-
portant MS. copy in the library of Lincoln's Inn ; one made by Philipot
02
//
84 The Tenures of Kent. [chap.
clause was omitted in the later copies, " because no other
than the common law ;" and for much the same reason we
may suppose that alienation of purchased land «^ ^^]] f[{y^
was not discussed in the Custumal ; though, as we have
said, it was highly necessary to record the special privilege
before 18 Edw. I., of free alienation by heirs.
{h.) " That he have recompense for tt.^^ It was supposed
by Robinson that the .custom permitted alienation of this
kind without valuable consideration, though this was not
allowed by any of the older writers. He relied on the
various reading ^^ doner ou vender ^^^ but the other and
more usual reading, '^ doner et vender^^ (dare^ vendere) is
believed to be correct.
** And,'' says Lambarde, ^Uhese words in the copulative,
for so they be in deed, though the printed book (Tottel's
edition) have them disjunctively, do of necessity imply
• PeramK, a recompense *." And in the second place Eobinson no-
ticed as evidence of the correctness of his inference, that
the consideration of such feoffments " is never set out, as
probably it would be, were it necessary." But his later
editors have shewn that the inference was wrong, and as
to the last argument, that the consideration would probably
not be set out, if the question were not trav erse d by the
plaintiff, Mr. Wilson added that the usual practice is to
add to the memorandum of livery of seisin an attestation
that the consideration money was paid to the infant, in-
stead of endorsing a receipt for it.
And the weight of modern decisions is decidedly op-
in the LansdowD library, Lansd. MSS.,.311; **one in MS. is in the
King's Remembrancer's office, and several in the Cotton library, and
among the Harleian MSS. in the British Museum." — Hasted^ i. 317.
See also the short summary of the incidents of gavelkind in the Stat, de
Prarogativd Regis, 1 7 Edw. II.
v.] The Norman Conquest. 85
posed to the idea that the custom permits the infant to
aliene without recompense.
(^.) " With livery of seisin hy his own hand.'^^ This is still
required, feoffments by infants under a custom being
excepted from the Act of 8 and 9 Vict., c. 106, and other
statutes affecting conveyances of real property. It is
laid down that the custom shall be taken strictly, partly
perhaps to preserve the traditional ceremony and notoriety
required for a sale of land in Kent before the Conquest,
partly to ensure that the youth of the vendor shall not be
abused in a secret bargain.
The custom therefore does not extend to feoffments by
attorney, to warranties, or grant of a reversion expectant
on an estate for life ; it was conjectured by Hankford, J.
in 11 Hen. IV. 33. that a lease and release, "being
tantamount to a feoffment, might haply be good by the
custom," but his opinion has not been adopted by other
interpreters of the law. Coke expressly lays down that
the infant in gavelkind " cannot by the custom make
a will at fifteen to pass away his land, to make a lease
and release, which amounteth to a feoffment ^ *. •si Edw.
. . IV. 24.
It is a more difficult question whether the infant out
of the possession and seisin of the land may release his
right at fifteen.
The opinion of Hankford, J. was against such a power,
l)ut the case does not support his opinion clearly -j", and fn Hen.
Hobinson produced a great many early instances in sup-
I)ort of its existence {, and considered that "an infant oft Bk. ii.
fifteen may certainly release the fee to his guardian hold-
ing over, or to tenant for life, or a mere right to one
' Complete Copyh., 33, §. 3. As to the supposed power of devise at
fifteen, see Year-book, 3 Hen. VI. 5, and contrcty 21 Edw. IV. 24, and
the section on derise of gavelkind lands in this chapter.
86 The Tenures of Kent [chap.
having a defeasible estate and seisin already of the land ;
yet it is a question of a very diflterent consideration
whether he may grant a present estate in the land by
any other means than that of livery; none of the in-
stances amount to this."
The custom does not extend to any conveyances founded
upon the statute of Uses, " for what things soever have
their beginning since the memory of man custom main-
• Co. Copy. tains not*," and equity has not sought to extend the
hold, 33. ' . . . .
somewhat dangerous privilege of alienation before at-
taining years of discretion.
Though the custom is taken strictly, it does not follow
that it must be construed literally; and therefore the
greater right of the infant to aliene by feoffment in fee
simple includes the lesser right of creating by feoffment
an estate tail, a lease for life, or lives, or to one for life,
tCo.utt. remainder to another in tailt, "Omne mains continet in
62 b. . „
se mmus ®."
As to Dower.
Both dower and curtesy in gavelkind retain the ancient
qualities of these estates, differing from those known to
ordinary socage tenants since the Conquest. The name
of free-bench {francos bancus)^ now applied almost entirely
to copyholds, is proper to both these estates. In the old
books dower in gavelkind is called indifferently francus
bancus socmannorum^ and dos de gavelkind ^
* Thus in copyholds where there is a custom of granting the land for
life, a grant to a widow durante viduitate is within the custom, but not
e converso ; Co. Copj'h., §. 33.
' ** Isabel de Graveney petit dotem. Et consuetudo est in partibus
illis quod uxores maritorum defunctorum habeant francum bancum de
terns socmannorum et teneant nomine dutis ad ^dtam suam, sed si," &c. —
Is. de Graveney* 8 Case, Bract., lib. iv. t. 6, c. 13.
In 0. 15 this free-bench is mentioned again as ** dos de gavelkind,^'
v.] The Norman Conquest. 87
The widow has a moiety of all the gavelkind lands and \
tenements (inclnding common, rents, profits of fairs, &c.)
of which her husband was seised at any time during the
marriage, either in law or in deed, for her life; but her
estate is, ipso facto^ divested by a second marriage or un-
chastity. It is indeed declared by high authorities that
unchastity, not followed by the birth of a child, is not
enough to work a forfeit *. But Eobinson produced seve- • Lamb,
ral old authorities for the wider position f, and especially ntt. 33 b!
Margaret Godfrey^ s case^ where the widow claimed that + ^^' "•
not only must the birth of a child be proved, but that the
mother must be attainted of it, according to the imme-
morial custom of Kent, by the hue and cry. But the
verdict found that the dower in gavelkind was forfeited
merely by the unchastity, and this is fully borne out
by the wording of the Stat. De Prcerogativd Eegis^ 17
Edw. II., 16.
Eobinson also held that if the widow leases the land and
marries, the lessee would not have the embl emen ts ± : but t 6 Rep.
this was not waiTanted by the case adduced, and the con-
trary opinion has long been established § ^. § Co. litt.
Anciently it was held that the widow had no dower of
a moiety of rents-charge newly created, arising out of
gavelkind land; but it is now the law that all rents
arising either out of gavelkind or borough-English lands
s hall follow the nature of the land, unless they are rents-
service appendent to the demesnes of a manor descendible
In the Book of Christchurch, cited below, we find " Gavelkendi debent
dotare de medio."
"In gavelkind mulier habebit medietatem pro dote 8U&.*' — {Stat, de
Prasr. Regis, 17 Edw. II., §. 16.)
» And as to the tenants at a rack-rent holding under lease of tenant
for life on other uncertain interest, see 14, 15 Vic, 25, §. 1.
The Tenures of Kent. [chap.
at coramoa law. Tithes i mpropriate , however, are not
gavelkind, though they arise from land of that tenure ^.
There was an ancient usage, now practically obsolete,
that the widow of a convicted and executed felon did not
forfeit her customary dower of a moiety. This might be
important if any new felony were created by statute, if
the wife's dower were not expressly saved by the wording
of the Act K
The widow takes a moiety of her husband's socage lands
in several other parts of England besides Kent. For in-
• Taylor, staucc, in Urchenfield *, Herefordshire, where " Welsh
kind, 44. gavelkind" prevails; in Norwich, where much land was
held '^ as in gavelkind" throughout the fee of the Marshal
of England, and in the honour of Eichmond; and *^in
the town of Salop is a custom that the wife shall have
a moiety of socage, but if the husband had socage and
t Co. utt. (land held in) chivalry, the wife took only a third part t,"
^ot^'7. (15 Hen. III.)
By the custom of some counties she takes half,
and by the custom of some towns or boroughs she shall
J Litt. §. : take the whole % ; and in the Forest of Pember (South-
B.i5o.' 'ampton), the usage was that the widow of a tenant
in capite dying without issue should take the whole
land for her life, but should forfeit two- thirds upon
a second marriage ^. The same custom prevailed at Hat-
wood, Essex ^
II Co. litt. In some other places dower was reduced to one-fourth || ;
83 b.
** Liishington v. Lhndaff, 2 New Rep. 491.
^ '* Dos post feloniara mariti peti non potest a muliere, &c., nisi in casu
speciali sicut in Kanci&.*' — {Bracton, iv, 311; Co. litt, 41a; and see
Wilson's note on Robinson (2), bk. ii. c. 4.)
^ Inquis. p. Mort., 44 Hen. III., 27 ; Cal. Geneal., i. 33.
' Ejectm., 35 Hen. III., 17.
v.] The Norman Conquest 89
and in the honour of Hawarden, Cheshire, the custom was
to give no dower at all ".
It is a common custom in burgage tenements held
in borough-English, for the widow to take the whole
in dower °.
In copyholds there are many curious varieties of free-
bench, which there is no room here to discuss. But we
may notice the custom of the manor of Cheltenham for the
widow to take all the lands of which the husband was
seised during the marriage; and another said to exist in
the manor of Taunton Dean, Somerset, where "notwith-
standing there are many children the wife shall take
the fee; if she dies it goes to the children of her first
husband, divided equally as in gavelkind, excluding any
children by a second marriage ''." It is believed that
the reasonableness of this custom has not been judicially
affirmed.
The custom of gavelkind being "precisely that the
widow shall have a moiety p," the dowress cannot waive
the moiety durante viduitate. and take a third for life *. • Co. utt.
. . . 33 b
The strictness of the law on this point gives great value
ix) those inquisitions post mortem and assignments of dower
dn Kent, where we find that the widow took ong-thiiid— iii^
^ower^ a proof that the land is not of thp nafy rft a? gavpl-
Ttindt*^ For instance, in 49 Edw. III. one-third of the ^ Arch»oi.
imanor of Buckland (Feversham hundred) was assigned ^•'^^
in dower, as appears by the Escheat Eolls of that year.
3fow we know, independently of this, that the manor was
■ Inquis. p. Mort., 4 Edw. I., 88 ; Cal. Geneal. i.
• Co. Utt. 37 b, and 111 a; F. N. B. 150; Bac. Abr. i. 531 ; Robins.
Appendix, Wilson's note (1).
• Newton v. Shafloe, 2 Keb., 158.
^ Ikmet y. Selhy, Cro. Ells. 825, and vide 1 Leon. 61.
i
I
90 The Tenures of Kent [chap.
never gavelkind, but the assignment of dower is additional
evidence. The history of the manor is briefly this : —
The name Buckland [quasi Book- land) shews that it was
allodium before the Conquest, granted to a noble by charter
(land-book). At the Conquest it was given by William I.
to his half-brother Odo of Bayeux, and of Tiim a sub-
tenant, Osbiom, held it by military service.
Domesday Book tells us that in this manor were two
ploughlands, scil. one in demesne, half a ploughland held
by the tenants (paying land-tax for three yokes, or three-
quarters of a ploughland), and one yoke (a quarter of
a ploughland) held by the lord of the manor with his
demesnes. Besides this, one yoke (a quarter of a plough-
land) was held of the superior lord, Odo, by a Norman
tenant. On the Bishop's disgrace the manor was granted
• Hast, to the family of Crevequer * in knight's service as before ;
and in 33 Edw. III. William de Apper field died, holding
the manor of Buckland and its demesnes, advowson, ap-
pendant, &c., of the king as of his castle of Leeds, as part
of the honour or barony of Crevequer by knight-service.
In the twentieth year of the same reign, according to
the Book of Aid levied in that year on the military lands
of Kent, Buckland manor paid aid as one-fourth of a
knight's fee. There are many other notices of the tenure
of this manor by knight's service until 12 Car. 2, c. 24,
and afterwards in socage in capite.
t vi. 399. But Hasted f gives an account of its subsequent descent,
which seems to be mistaken, or, if true, to have been very
irregular. He states that the manor and advowson, as well
as the gavelkind lands held of the manor, descended in
equal thirds among the three sons of an owner who died
intestate in the last century.
But even if he had not seen the assignment of dower
vi. 397.
v.] The Norman Conquest. 91
of one-third, or the entry in the "Book of Aid," mentioned
above, he should have known from the records cited by
him that the manor, demesnes, and advowson were not
gavelkind.
As to tenancy by the curtesy.
The estate of the tenant by the curtesy of England in
gavelkind lands and tenements, was called in ancient
times "the man's free-bench," [francus or liber bancus)"^.
Tenant by the curtesy is entitled by the custom of Kent /
to one moiety an d no mo re of all the lands and tenements
of gavelkind nature of which Els wiFeTwas" actualiy seised ; ^
but his estate is forfeited by a second marriage.
It differs from the estate given to a husband by the
curtesy of England chiefly in this, that the birth or
failure of issue capable of inheriting the land, &c., make
no difference to the widower ; in either case he will take
a moiety until death or another marriage.
The law as to curtesy in rents, commons, profits of fairs,
tithes impropriate, &c., is similar to that of dower ac-
cording to the custom of Kent '.
< Mom y. Pelteheam : " Clamat terrain tanquam liberum'bancum suum
per legem et consuetudinem Kanciffi/' — {Itin, Kane, 39 Hen. III. 14.)
De Bendings v. Prior of Christchurch : " R. de Valoignes habuit no-
mine franci banci medietatem illius manerii." — {Itin. Kane, 2b Hen, III.,
extracted infra,)
' The Cuatumal of Kent defines the rights of the dowress in the fol-
lowing clause : —
" Et si nul tiel tenant in gavelkind meurt, e eit femme que survive,
seit cele femme meintenant dowe de la meitie des tenementz dont son
baroun morust (I.) (vestu e) seisi, per les heirs s'il seient de age ou per
les seigneurs s'il ne seient pas de age: issi que ele eyt la meitie de
celes terres e tenementz a tener tant com ele se tyent veuve, ou de en-
fanter (2.) seit atteint per le auncient usage, ceo est a scavoir, que quant
ele enfante e Tenfaot seit oi crier c que le Hu e lo Cry seit lue, e le pais
ensemble, e eyent veue de I'enfant ensi enfaunte, e de la mere, adonks
92 The Tenures of Kent. [chap.
The inquisitions post mortem contain many details about
tenancies by the curtesy of different manors and lands in
the county, which afford enquirers very good evidence as
to the tenure in each case. The manor and demesnes are
often found to have been held entire (by the common law),
but only a moiety of the socage lands appurtenant to these
demesnes by the same tenant.
In enquiries of this kind it is not safe to neglect any
details of the old custom; a slight clue may lead to full
knowledge as to the tenure: for example, we have seen
that in gavelkind lands the birth of issue was immaterial
to the tenant by the curtesy, but absolutely necessary for
the tenant of the same estate at common law. When
therefore a jury was summoned to decide whether issue
perde son dowere enterement, et autrement nyent, tant come ele se tient
veuve ; dont il est dist en Kenteis,
" He that her wende (turn)
He her lend."
On this we may remark, (1.) that the customary dower is said here to
baof the lands, &c. of which her husband died seised; but the expression
is construed to mean "died, having been seised during the coverture."
(Lamb., Peramb., 555.) Also, that in the most ancient copies the words
are "vestu e seisi," as if the seisin must have vested in the husband to
enable the widow to claim dower; but this would be against the prin-
ciples of the common law, " for it lieth not with the wife to bring it to
an actual seisin, as the husband may of his wife's land, which is worthy
of observation." (Co. litt. 31 a.) (2.) Lambarde maintains that the
birth of a child, with all the ancient formalities of hue and cry, gather-
ing the neighbours, and convicting the mother, was necessary in order that
the customary dower should be forfeited, so that the widow was safe,
who lived si nan caste tanien caute. (Lamb., 555.) But this has been
shewn above to be obsolete, if it ever was the law.
As to curtesy, the Custumal provides thus: **E clament auxi, que homme
que prent femme que eit heritage de gavelkind, e la femme murge avant
luy, eit le baroun la meitie de celes terres e tenementz (tant come il se
tient veuvers) dont ele morust seisei sans estrepement ou waste ou exile
faire, le quel qu'il y eit heir entre eux ou noun; et s'il prent femme,
trestout perde.'*
v.] The Norman Conquest. 93
was bom (and heard to cry, as evidence of having been
alive) before the tenant was allowed to succeed his wife,
we know that the land was not gavelkind. A case of this
kind will be discussed at greater length in the chapter on
knight-service (manor of Bought on Aluph).
As to commons and waste lands.
It was once held that there could be no common in
gavelkind land *, though this has long ceased to the law, • Lam-
and the Stat. 4 Hen. VIII., c. 6, recognises the existence 568; Pitz! y^
at that time of common coppice woods in the Weald of tion, 62."
Kent. ^ ^ If. ^"^
This old opinion had probably some foundation in fact,
perhaps in this manner. The county was at the time of
the Conquest parcelled out into manors, as we have seen.
In these manors a portion was always reserved as '4he
lord's waste,'^ which served for roads and for common of
pasture to the beasts of the lord and the tenants in socage
of arable lands in the manor.
This waste was of the same tenure necessarily as the
lord's own demesne lands, and therefore the wastes of all
the manors mentioned in Domesday Book and other re-
cords of authority to have been held by a military or
francalmoigne tenure, have never been gavelkind.
Although the socage tenants had a right to use the
herbage of the soil, yet the soil itself belonged to the
lord, and was, in nine cases out of ten, held in " ancient
knight-service." This may have been the origin of the
sayiug, that there was no common in gavelkind lands, or
it may be merely an inference from the fact that all gavel-
kind, ex vi termmiy must have been originally granted in
socage and therefore would not have lain waste and com-
monable. But in course of time gavelkind manors or
reputed manors were created in different parts of the
94 The Tenures of Kent. [chap.
county, and in them the waste, if any, would of course
be held by the same tenure as the manors themselves and
the demesne lands; in these cases there certainly might
be common in gavelkind land.
The question as to the tenure of the wastes of manors
held by services is of high importance in Kent. In almost
every parish in the county, cottages and gardens, rows of
dwelling-houses, &c., are fouiid upon the land which was
the waste or common, whether the title of the first occu-
piers was that of mere intruders and encroachers, or de-
rived from the lord of the manor enclosing portions of it.
In every case where the demesnes are not gavelkind,
these tenements situated on the waste are equally free.
As an example of the great size of some of these wastes
we may refer to the waste or minnis of Swingfield, a manor
held by military service from the earliest times. It is de-
scribed as "a common about two miles and a half long,
and not quite half a mile broad, consisting of about 550
acres of land. The property of this minnis was always
supposed to belong to the Crown, and after the death of
Charles I. * it was returned " that the minnis contained 540
acres, of the annual improved rent of £216, which the
commissioners, finding to lie in common, imagined to be-
• Hunted, long to the Crown*." It was proved, however, to be
common land belonging, subject to the rights of the com-
moners, to the barony of Folkestone.
Among the most important of all the tracts of land
which were wastes and heaths for many ages after the
Conquest are Blackheath and Penenden Heath; but in
every parish there are lands to which the foregoing re-
marks will apply.
' Pari. Surveys, 1649, 1650, in the Augmentation Office.
v.] The Norman Conquest. 95
It is well known also that most of the town of Tunbridge
Wells is built upon the waste land of the manor of Eust-
hall, in the parish of Speldhurst, the rights of the com-
moners having been commuted for a term of years at
a yearly rent in 1670. '^ The building lease granted by
the lord of the manor expiring in 1726, the tenants
claimed compensation for the loss of the herbage which
was covered by his houses. This occasioned a long and
expensive suit, determined in favour of the tenants, who
were adjudged to have a right to a third part of the
buildings then erected on the estate, in lieu of herbage *." •Hasted,
A partition was made and articles of agreement drawn up
between the lord of the manor and his tenants, which were
confirmed by a private act in 1740.
It was, however, an ancient usage respecting common
in gavelkind lands, that the lord could approve or enclose
at his discretion, and hold the land himself without the
consent of the tenants *.
This had no reference to the case of a manor held by /
knight-service or in free alms from the first, where, though ,4*
the tenants might hold in gavelkind, yet the soil of the /
waste was in the same tenure as the demesnes of the /
manor.
There is no need to discuss here the obsolete custom of
gavelet, the liberties of bequeathing chattels, or the rules
for distributing "the reasonable portion" to the widow
and children of an intestate; there are, however, two
ancient matters, of small interest now, on which a word
or two may be written, especially as the first is not men-
tioned, and the second seems to be somewhat wrongly
treated, in Eobinson's work.
' Thomas of Feversham's Case, 17 Edw. II., Mayn. 502.
96 The Tenures of Kent [chap.
— — — — — — — — — ^ t
The first is merely a point of antiquarian interest, soil.
that a leper could not inherit gavelkind land. This seems
to have been the law all over England until the reign of
♦ Grand Henry III. It was probably introduced from Normandy *.
roier, c Though uot mentioned by Coke, who merely states the
t Co. utt. general rule that leprosy was no impediment to descent f ,
there is no doubt that it was such an impediment in the
reign of John. Hale cites the case of Fulch, a judge of
t c. L. that time, as one instance i, and in Pasch. 4 John, rot. 6
123, Ab- .
brev. pia- dorso, Ruff V. Wariu^ a leprous brother claimed certain
citomm, , ^
p. 39. gavelkind land, but was not allowed to inherit on account
of his disease, and the land was adjudged to his sister
Mabilla, viz. half a carucate in Sutton.
The next point has been more discussed, viz. the claim
by the men of gavelkind of two privileges in trying a writ
of right, (1.) that the grand assise should not be chosen as
was usual by four knights, but by four " men of gavel-
kind," who should choose out twelve other gavelkind ten-
ants to try the cause, and (2.) that trial by battle should
not be used in a writ of right of such lands.
Now that so many of the old trials respecting lands in
Kent in early reigns are published, or rendered easy of
access to the public, these privileges, now in themselves
unimportant, may gain a new value in shewing whether
particular lands were considered to be gavelkind or mili-
tary, which we learn by ascertaining the mode in which
trials concerning them were conducted. That the privi-
lege was strictly restrained to gavelkind is seen by a case
• rk. ii. extracted by Eobinson *, being a writ of right for four
acres of meadow in Davington". The demandants made
title to the whole as gavelkind, and offered to prove it
" Everard v. Chafnpagne ; Itin, Kane., 21 Edw. I. 40.
v.] The Norman Conquest. 97
according to the mode usual in trials concerning lands of
that nature ; but the tenant pleaded that half the land was
"ancient knight-service," and claimed trial by battle or
the Grand Assise summoned in the usual way. The jury
found that one acre was not gavelkind, and rejected the
demandant's claim.
The privilege as to summoning the Grand Assise by four
gavelkind tenants is not disputed ; the charter is enrolled
which gave it *, and is recited in the copy of the customs
allowed in eyre 21 Edw. I. ^
The abolition of real actions ' has taken away the im-
portance of the old Kentish mode of proceeding on a writ
of right. Nevertheless the records of such proceedings
are important as evidences of tenure. When the lands
in dispute were descendible at common law, the Grand
Assise consisted of four knights of Kent, who chose out
twelve • other gentlemen in the county to declare upon
their oath whether the right of the demandant to the land
^was greater than that of the tenant, or not. But if the
^ aose KoUb, 16 Hen. III.
7 An extract horn a record of the " Pleas of the Crown in divers Coun-
"fties," Trin. 25 Hen. III., No. 49, mem. 2, will shew the form of these
'C;rial8.
"Twyfield P. Eic. de Swanton, Ric. Plogh de Peckam, Roger de Mara
^2t Godefridos de Hamsted iiij. Gavelikindays sumimtnr ad eligendum xij.
^^arelikindays de visneto dc Mereworth ad faciendam juratam loco magnse
mkMmny &c. inter Elenam filiam Will. Pet. et Will, filium Ricardi, &c. de
"▼Tij.acriB terwB, &c. in Mereworth." The names of the twelve "gavel-
Itind men" foUow.
■ 8 and 4 WiU. lY. c. xxvii. §. 36.
' Twelve was the number mentioned in the writ, and also in the oath
^ the four knights. But fourteen have been returned, and in King v.
^den, Cro. Car. 511, twenty were returned, and it was said that the
wirplnsage made the whole return bad. The court, however, held it good,
■^ cited several precedents for the decision. (Co. litt. 129 a ; Harg. n.
2; Booth on Real Actions, 96 ; 2 Ro. Abr. 674.)
H
gS The Tenures of Kent. [CH
lands were gavelkind, we have seen that four tenants of
gavelkind chose twelve others to be jurors in place of the
Grand Assise. Thus by the mode of trial we gain an in-
dication of the tenure.
•Vol. iiL There is a detailed account in Hasted's History*, of
a trial of this kind concerning the estates of the Earl of
Leicester, in 1782, which illustrates this.
In 1738 Joceline, Earl of Leicester, suffered a common
recovery of the manors of Penshurst, Cepham, Havenden
Court, Hepsbroke or Ford Place, West Lyghe or Leigh,
East and West Ewehurst, Ensfield, and Eendsley, Pens-
hurst Place, Penshurst Park, the advowsons of Penshurst
and Cowden, the rectories of Lyghe and Ensfield, divers
woods in Penshurst, Lyghe, Bidborough, Tunbridge, Chid-*
ingstone, and Speldhurst, Ford Place farm, being the de-
mesne lands of Hepsbrook Manor, Eedleaf House, with
other lands, tenements, and hereditaments, to the use of
himself, his heirs and assigns.
But his nieces, daughters of his elder brother, who had
died before he succeeded to the title, insisted that by
suffering this recovery he had forfeited his estate for life,
and claimed the above-mentioned estates by virtue of
a settlement made by the Earl's father in 1700, as heirs
of the body and heirs general to Eobert, Earl of Leicester-
They began proceedings in Chancery in 1739; the Earl
died in 1743, and devised the property in dispute to bis
natural daughter.
After much litigation, a compromise was effected, the
said Kentish estates being divided between the two nieces
and their husbands, in consideration of a rent-charge paid
to the late Earl's daughter, &c. This was confirmed by
a private Act of Parliament, 20 Geo. II.
In 1770 the whole of those estates had come, partly by
The Norman Conqmst. 99
purchase and partly by that Act, into the ownership of
Elisabeth Perry, one of the claimants under the settle-
ment of 1700.
But a son of the Earl of Leicester, John Sidney, Esq.,
in 1782 set up a claim to the whole of them, as his legiti-
mate son and heir, and the cause was tried in the Common
Pleas on a writ of right, by a Grand Assise consisting of
four knights of the county of Kent, with twelve others,
to determine the rights of the parties.
Mrs. Perry being in possession, and the late Earl having
devised his interest in the lands to his daughter, it was
decided that the tenant had more right to them than the
demandant, and the Grand Assise gave a verdict in favour
of Mrs. Perry for the whole.
Had the lands been of gavelkind nature there could
have been no Grand Assise of this kind, but only a jury
of twelve gavelkind tenants summoned by four others
" according to the law and custom of Kent.'^
It is true that the free tenure of most of these lands can
be proved in other ways, e.g. to take the most usual course
of proof, they paid aid to make the Black Prince a knight
in 20 Edw. III., as is recorded in the " Book of Aid," and
"Were therefore held by ancient knight-service ^. But the
:iecord of the trial by the Grand Assise is also a useful
liece of evidence in this and a great many other cases.
But Eobinson expressed great doubts as to the second
privilege, and gives several reasons for disbelieving that
trial by battle was disallowed on lands of gavelkind
tenure.
^ Aid pur f aire Jils chevalier or pur fille marier were not due from lands
kcld in francalmoigne in Kent. See Prior of Thurgartoii's Case, 1 Edw.
^ ; Prior of Boxgrave's Case, 9 Edward II. ; Sunninghull's Case,
I Edw. II. : and Walter Cockfield's Case, 9 Edw. IL, cited in Madox,
Bxcheq. 416.
h2
icx> The Tenures of Kent. [chap.
First he notices that the word * battle' is omitted in
TottePs printed edition of the Custumal, and in the Lincohi's
Inn MS. Moreover it is not mentioned in the charters of
Henry III. quoted by him, and several MS. copies of the
Eegister of Writs are worded as if battle were allowed in
gavelkind.
Against this we can shew Lambarde's opinion : " Battle
it admitted not at all, and altereth the other (the Grand
• Peramb. Assisc)*." He also cxprcssly wams readers against Tottcl's
edition of the Kentish Customs, and refers us to his own
copy, "with much more faith and diligence long since
(21 Edw. I.) exemplified;" this copy has been received
as good evidence of the law of gavelkind in the higher
courts (^Launder v. Brooks)^ and in it we find these words,
"que de tenementz que sent tonus in gavelkind ne seit
prise battaille."
Besides this there is a case, which Bobinson had not
seen, which of itself would settle the question. It is
recorded in the Winton Boll, 40 Hen. III. rot. 5, Pettes
V. John son of Bernard^ and it is there expressly allowed
that there could be no trial by battle for gavelkind land.
John de Pettes and his brother Maurice ° claimed against
John son of Bernard thirteen acres and a half of land in
*» " Johannes de Pettes et M. frater ejus petunt versus J. filium Bemardi
tresdecim acras terraB et dimidiam cum pertinentiis, &c., in Bakethald.
. . . Et J. fil B. offert hoc probare per corpus suum. Et J. et M. dicunt
quod duellum non debet inde inter eos fieri, quia dicunt quod Eobertus
antecessor eonun tenuit terram praedictam in gavelkind, et similiter J. fil.
B. illam tenet in gavelkind. Unde dicunt quod non debet duellum inde
fieri nee magna assisa nee de aliquo tenemcnto quod teneatur in gavelkind
nisi tantum jurata xii tenentium in gavelkind, &c. Et ponunt se in
juratam xii. tenentium in gavelkind loco magna) assisa). Dies datus est
eis a die Pasch. apud Wilton et tunc veniunt iv. gavelkendi, &c."
40 Hen, IIL, Abbreviatio Flacttorum.
v.] The Norman Conquest loi
* Bakethald/ and John son of Bernard asserted his right
to retain the land, and offered to prove it by his body, &c.,
aeoording to the nsual form of trial by battle. But the
demandants shewed that the land was gavelkind, and said
that therefore there could be no trial by battle nor Grand
Assise, either of this or any other gavelki;id tenement, but
only a jury of twelve gavelkind tenants, according to the
law and custom of Kent. To this the tenant agreed, and
four " gavelkind men'^ were called, who summoned twelve
others in the manner described in the Custumal.
In the next place Eobinson remarks *' that one of the
last instances in our books of battle joined in a writ of
right was between Lowe and Kyme demandants and Para-
mour tenant for lands in the Isle of Harty^ which were
gavelkind^ for the title depended upon the alienation of an
infant \''
This would be an important authority for his opinion if
these were all the facts, but in reality the lands were not
gavelkind at all, nor could they have been at that time
supposed to be so held ; for the court was ^ very anxious
to prevent the barbarous mode of trial by battle, as we
learn from Coke, and would have strained any precedent
to prevent it. Had the land been gavelkind this might
have been done either on the wording of the Custumal as
allowed in Eyre, or on the authority of the case just cited,
Pettes' Case. We find, however, that the Justices of Com-
mon Pleas were compelled to allow the duel between the
champions of the parties, who met at Tothill Fields, West-
minster, "where after much formal solemnity, and pro-
clamation being made, the non-appearance of the demand-
ants Kyme and Lowe was recorded, and a non-suit prayed,
which was made, and the land was adjudged to Paramour
* Lm9 V. Paramour, Co. Ent. 182, Dyer, 301 (13 Eliz.).
I02 The Tenures of Kent [chap.
with costs of suit ; for the Queen had so ordered, that they
were not to fight. But every part of this form was ad-
judged necessary to ascertain the defendant's right, and
the judges themselves would no doubt have been well
pleased to have ousted the parties of this barbarous method
of trial had the custom warranted them to do so, and it
shews how much the example of it was disliked, since
the Queen thought fit to interpose and accommodate
the matter; and this is one of the last instances of
• Hast, battle joined in a writ of right*," (abolished 59 Geo. III.
c. 46).
The lands in dispute were called the Moat, land were
part of the manor of Harty, which was held anciently
by knight - Service. The Moat was part of the de-
mesnes, which had been separated in the reign of Ed-
ward III., after which time it was reputed to be a sepa-
rate manor.
The manor of Harty was held by knight-service in
the reign of Henry III., Kobert de Campania, or de
Champagne, holding it of the superior lord, John de St.
John, as half a knight's fee, as is recorded in the Testa
de NeviL
In 1 Edw. III. the King's writ was directed to Kobert
de Kendal *^ to restore to the lady of Harty Island (sister
of Thomas Koscelin) her lands in Kent, forfeited in his
father's reign." She left three daughters, co-heiresses,
among whom the manor and lands were divided, the third
part, called the Moat, descending to Thomasina, wife of
Thomas Chevin.
When the Black Prince was made a knight, in 20 Edw.
III., all these portions of the manor paid aid as ancient
military lands, at the rate of 40s. for one knight's fee:
this may be seen by the Book of Aid compiled in that
v.] ' The Norman Conquest. 103
year, where the owner of the Moat is set down for one-
fourth of a knight's fee, and the Feodary of Kent, com-
piled by Cyriac Petit for the Exchequer in 35 Hen. VIII.,
records the fact that the land was continuously treated as
military, and paid aid in each reign accordingly.-
The Moat continued in the ownership of the Chevin
family xmtil " John Chevin, in 3 Eliz., by conveyance and
fine sold it to Thomas Paramour, by the description of
a manor and lands, &c., in St. Thomas in the Isle of
Harty, of the fee of William, Marquis of ' Winchester,
capital lord of it.
" But it being alleged by John Chevin, that he was under
age at the time of the alienation^ the fine was reversed, and
he having in the meantime passed it away to Kyne
and Lowe, they in 13 Eliz. brought the writ of right for
the recovery of it*," which has been described. • Hast.vi.
It is clear from this brief account of the land in dispute
that it was not gavelkind, but "ancient knight-service"
land, recorded in the Exchequer from the earliest times
to be of that tenure. Nor is there any mention of a cus-
tomary feoflPment made by Chevin as an infant in gavel-
kind; nor if any one had thought that it might be
gavelkind would the duel ever have been awarded in the
fiice of the Custumal, the charter of Henry III., and the
early cases. Kobinson, however, not having examined the
Book of Aid, or the other records of the military lands of
Kent, and seemingly not having read the first record
of this case, and certainly not having met with the decision
in Pettes' Case, assumed that it was gavelkind *, and that
• The property claimed by Lowe and Kyme against Paramour is de-
scribed in Coke's Entries, tit. Droit. BattaiU,^ as one principal messuage,
&c., with sixty acres of pasture, twenty acres of meadow, and fifty acres
of marsh-land.
I04 The Tenures of Kent [chap.
the received words of the Kentish Custumal were not
a correct statement of the law.
It is more strange perhaps that Hasted, who had access
to many of the records mentioned, should have also
assumed on the authority of Eobinson that the land was
gavelkind ; but his work is unfortunately very full of mis-
takes on the points of tenure, pedigree, and the like, which
demanded the greatest care and accuracy in using the
valuable materials collected by him.
Having. now shortly discussed the chief points in the
law of gavelkind since the Conquest, it is time to say a few
words about those inferior tenures in Kent which were for
a long time separate from and inferior to gavelkind. It
must not be thought that all lands, which were not held in
francalmoigne or by knight-service, were gavelkind in the
early times immediately following the Norman Conquest.
The system of tenures was very intricate in Kent, pos-
sibly owing to the belief that ^^all Kentish men were bom
free." This caused the inferior tenures, which in other
parts of the country would have been equally servile, to be
distinguished in Kent by fine gradations of freedom, the
lowest being a little above the condition of an ordinary
villein.
Besides those inferior at first to gavelkind, there was the
superior tenure of the Drengs (Throngs), or lesser thanes,
already noticed. After a time this became obsolete and
unknown on. the estates of the Church, or rather was
assimilated in almost every incident to ordinary knight-
service. The same change took place in the rest of the
county, probably at an earlier date, but this can hardly be
affirmed with certainty.
There is an old book, once belonging to the Priors of
Canterbury, which tells us all the incidents of the various
The Norman Conquest. 105
tenures allowed upon the manors, of which the seigniory
and the demesnes were held in francalmoigne by them '.
It appears from this Liber Ecclesice Christi^ that the
tenants were divided into four classes, viz. free tenants by
knight-service, " men of gavelkind," free socagers, and
cottiers also holding in socage.
The first class probably includes the successors of the
Drengs, or Throngs, of the twelfth century. The incidents
of their tenure were homage and fealty, wardship till
twenty-one, payment of reliefs, dower of a third, and in-
heritance by the rule of primogeniture ; the record adds,
that it was the duty of these free tenants " socagium prse-
stare," which means to pay a rent as in socage, military
services being absolutely useless to a superior lord holding
in francalmoigne. Besides, as we have seen, the Priors
had given two hundred pounds' worth of land to the Arch-
bishop, to do all military duties for them through his
twenty-seven knights. It seems as if these free tenants
most have been the lesser thanes or drengs, now called
MiliteSj because their land was not socage or gavelkind,
and because their duties were so like those of ordinary
knights, and more rightly only called "Free tenants" be-
cause they paid a rent instead of doing service in arms.
The persons next mentioned are the tenants in gavel-
' Lther EccUsia Christu Collectanea Histortca, Gul. Lambarde, Cotton
M88., Vespasian, A. v. 885.
f Esse in custodi^ usque ad unum ac vice-
simum annum.
Homagium faccre.
'Uilitessive liberi tenentes Kelevare.
debent Maritaro.
Dotarc do tertio.
P rimogenitum succedere in to turn.
Socagium proestaro."
io6
The Tenures of Kent.
[chap.
kind*, whose duties and privileges are sufficiently well
known. The next are a more difficult class to understand.
Those who have not seen the old Kentish records, espe-
cially the MSS. from the libraries of Christ Church and
the Abbey of St. Augustine's, have before now insisted
that no such persons existed as free socmen of a class
inferior to gavelkind tenants, whose land descended to the
eldest son. Yet here are tenants of ^^free socmanries"
described ^, who did certain services, and whose eldest son
succeeded to all the inheritance, and yet whose condition
in many respects was hardly different from the serfs, or in
later times the copyholders, in other counties. They might
not give or sell their land without license from the
superior lord, though all tenants of gavelkind might
aliene without any such license, provided the rents and
• Kentish serviccs wcrc not diminished *. They miffht not sell
dutumal. . '' ^
a male beast of any sort from their homestead, nor marry
their daughters without paying a fine to the lord of 7s.
for every daughter married. This fine was called mer-
s From the same MS. : —
" Gavclkendi debent
^ From the same MS. : —
*' Liberi Sokmanni possunt
Feoditatem facere.
Esse in nutritura propinquioris.
Consanguinei usque ad xv"' annum.
Recognitioncm domino pro tcrrd facerc.
Dotare dc medio.
Omnes participabunt."
f Dare, vendere libera sokmanria sed ad
voluntatem domini.
Non alicnare.
Facere certa servitia.
Antenatus suecedct in totum.
Averium masculinum non vendere.
Non filiam maritare nisi det vii. solidos.
v^ Filium omnino clcricum facere.*'
v.] The Norman Conquest 107
chetum : it was usual only upon servile tenements, as will
be seen in the chapter on Burgage.
Their sons might be admitted to orders, with leave from
the lord, or not, a regulation probably introduced because
the lord in this case was an Ecclesiastical Corporation. In
a free tenure no mention of such a liberty would have
been required.
These men appear to have been the Bordarii^ or culti-
vators of the lord's demesne, so often mentioned in the
Domesday Survey of Kent. They were free, and had
strips of land, but clearly did not hold in gavelkind.
The next, and the lowest class, were the Cottiers or cot-
tagers, who were in reality villeins or predial serfs. The
lord might tax them high or low at his pleasure; there
was nothing they could call their own, and whatever they
acquired belonged in strict law to the lord. They differed
only from the serfs in other counties in their personal free-
dom: they differed from tenants in gavelkind in almost
every incident of their tenure '.
The true estimate of their position is given in the Pleas* • Abbrev.
of the Crown, Pasch. 14 Edw. II. 19, when it was said torum.
"the services of these borderers, or cultivators of the
demesne, are most servile," though they were just within
the limits of free socage tenure. ("Servicia bordariorum
(Bord-men) sunt multum servilia.")
There was one more class of rustic tenants, most com-
mon on the manors of the Bishop and Prior of Kochester,
' From the same MS. : —
'' Sokmanria sua qu8B dicuntur coteria tal-
liare ad voluntatem domini.
,,^ , .. , , , J Facere servitia incerta.
Utaru debent 1 xri j j • v 1-
TSil dare nee vendere nee propnum habere.
Nil acquirere nisi ad promotionem domini
. sui."
ao8 The Tenures of Kent [chap.
and of the Archbishop, soil, neats {nativi\ or neat-men^
^^who were a little more free than the cottagers, having
each of them a rood, or at least half a rood of land, of
their own^.'^ They were not however as free as the
tenants in gavelkind, as may be seen by comparing the
description of the two tenures in the Custumal of Koches-
ter, and the general Custumal of Kent. For one day
in the year the lord might put them to the most servile
labour as a badge of their inferior position ; for the rest
of the year he could not exact more than the fixed ser-
vice without their consent.
In some of the manors held by the monks of Eochester
there was very little gavelkind, and a great deal of land
held by these base tenures. For instance, the Kochester
Custumal tells us that in Frindsbury there were only
twenty-one Vyokes,' and in Stoke only nine * yokes' of
gavel-land, almost all, except the demesnes, being in
a tenure hardly above villeinage.
About the time of Edward III. another change began
to be felt in the system of Kentish tenures. The bondmen
separated from the freemen, the latter coming all alike to
enjoy the privileges of gavelkind, the former gradually
winning freedom in the same way as ordinary copy-
holders ^
^ " Dominus potest ponere ad opera quemcunque Toluerit de Netis suis
in die St. Martini. Et sciendum est quod Xeti iidem sunt quod Neat -men,
qui aliquantum liberiores fuerunt quam Cot-men, qui omnes habent vir-
gatas teirae, vel dimidias virgatas ad minus. In crastino non ponit eos
ad opera sine consensu eorundem." — {Cmtumal Roffense.)
* Some of the cottagers obtained it more expeditiously by grant from
the Archbishop, or other lord of the manor. Thus in a Custumal of
Eastry manor, it is noted : "In eodem manerio mutati sunt octo cotarii
pro gavelkcnde;" and ** Midle-ferm tenet unum mcssuagium et tres acras,
quae solent esse cotariorum, modo reddit xP. de gablo." And from an
Account-roll of Charing manor, a.d. 1230, the bailiff acknowledged the
v.] The Norman Conquest 109
There are not many copyholds in Kent, owing to this
inclusion of all the borderers into the class of gavelkind
tenants, their customs in all probability having before been
in most respects the same.
The bondmen also seem to have followed the same cus-
toms, as far as their tenure permitted, e.g. to have divided
the lands held by them at the will of the lord among all
the sons, as in gavelkind. Somner cites a deed in which
a division is made of land held in villeinage (answering
to the bond-land of the Kochester Custumal, p. 10) " sicut
de gavelkind."
Most of these serfs were found upon the lands of the
Church, and, as the bishops always favoured enfranchise-
ment, this class, as a whole, gained freedom quicker in
Kent than elsewhere. The copyholders now pay different
fines, heriots, and quit-rents from those of the freeholders,
e.g. in Northfleet the heriot of the copyholders is one-half
their annual quit-rent, that of the freeholders one-third ;
and, to take another instance, in the manor of Otford Weald
the freeholders pay a heriot of their best living thing, or
38, 4d. in money, and the copyholders pay a fine equal to
their rent for one year instead of a heriot.
That individuals remained in servitude as late as the
fifteenth century is proved by the will of Sir William
Septvans, of Milton, near Canterbury, who bequeathed
liberty to certain of his villeins bom on his land "".
receipt of a fine from certain cottagers that their tenements might be
changed to gavelkind. — (Somner, Gav. 59.)
■» This wiU is said by Somner, 74, to have been registered in the proper
manner at Canterbury. It was dated 1407, and ran in these words: —
**Item lego Standerd, Hamonde, Chirche, et Richesforde servis et nativis
nieis, pro bono servitio mihi ab eisdem facto, plenam libertatem, et volo
quod qoilibet eorundem habeat cartam manumissionis sigillo meo signa-
tam, in testimonium hujusmodi meae ultimoe voluntatis."
no The Tenures of Kent [chap.
In speaking of any period after the reign of Edward III.
we may for the future include among the gavelkind tenants
not only the tenants of gavel-land proper, but the borderers
or cultivators of the demesnes, and those cottagers who
were raised by special favour to the same degree of free-
dom. A distinction in name seems to have been kept up,
but the same law for the future applied, to them all. (See
a deed concerning the tenants of gavel-land and the
tenants of in-land at Mepham, given at length by Somner,
App., 288.)
Since this change it has been a correct statement of the
law to say that all ancient socage lands in Kent are gavel-
kind. In the earlier times this could not have been said
with truth, for, as we have seen, th e borderers, who tille d
the in-lands, were socage tenants of an inferior sort, and
not included in the privileges of gavelEndT" Even now,
in some manors, we can discern the old limits of these two
ancient tenures, now united.
For instance, in the Archbishop's manors of Shoreham
and Chevening there are two sorts of free socage land,
Yoke-land^ or the ancient gavel-land, and in-land^ or those
parts of the old demesnes, which had been given to the
*' borderers ; " both descriptions are gavelkind now, but
the tenants pay different dues, the former owing a fine and
a heriot of the best living thing on death or alienation, the
latter being accustomed to pay instead of a heriot one full
year's quit-rent, like the copyholders on other manors of
the Archbishop °. But a difficulty still remains as to those
free socmen mentioned above, whose land descended to the
eldest son.
Lambarde held that all ancieut socage was not gavelkind,
and taking the distinction made by Glauville and Bracton
•^ Pari. Surveys, 1649, cited Hast. 3, 107.
v.] The Norman Conquest, 1 1 1
between free and base socage, he maintained that the free
species was not gavelkind. To support this an extract from
the *' Escheat KoUs " was produced by him, viz. inquisit.
post mortem Walter Colpepper, 1 Edw. III., which shewed
that the liberum feodum at Shirboume descended to the
eldest son, and was carefully distinguished from " tene-
ments in gavelkind *." 54^®™™^'
But, in the opinion of later authorities, Lambarde was
wrong; first, because this liberum feodum^ or frank- fee, means
land held by knight-service, as opposed to gavelkind °.
"This appears," said Eobinson, " by numberless instances
in the Kentish iters ^ ; " and secondly, because he assumes t Lib. i. c.
that gavelkind is an inferior tenure to this free socage with civ. 56.
descent to the eldest son.
The truth appears to be this. The distinction between
free and base socage did in some measure exist in Kent.
Gavelkind answered to the free socage, and the lands of
* Lay-fee Qaicum feodum) is used in the same way to mean anything
not gavelkind in records of the time of Richard I. The common expres-
sion for disga veiling land was '*de tonementis qiioc sunt in tenura de
gavelkind facere liberum feodum ^"^^ e.g., in the Charter given by King John
to the Archbishop of Canterbury. Sec also the case of Gatewyh v. Gate-
wyh, extracted at length by Robinson, book i. c. 5.
In a trial concerning lands at Chistley, in the reign of Richard I., the
jury found that the gavelkind lands in that manor had been divided among
the heirs male, but not those in dispute, because they were ' lay-fee, ' pur-
chased by one of the brothers. " Hugh Coffin seisitus de un^ carucata in
feodo apud Chistelei/, Et juratores dicunt quod H.C. habct Iratres pri-
mogenitos qui partiti fuerunt cum eodem de gavilicunde quam habuerunt,
sed non de istA terra, quia est laicum feodum ot purcacium, ipsius H.C* —
(Rotuli Curia Regis, Palgrave, i. 442.)
In the case of De Valoignes v. De Valoignes, Pasch. 9 Joh. v. 7, the
jury found that Warretius de Valoignes had died seised of certain land,
'*as land which has never been divided, '* ('^sicut de ilia quoe nunquam
partita fuit.") The lands thus decided to bo descendible to the eldest son
formed the estate of the Valoignes or Valence family in Eggarton, in the
parish of Godmersham, and Tremworth, in the parish of Crundal.
1 1 2 The Tenures of Kent. [chap.
the liheri socmanni and the borderers were held by inferior
tenures.
The MS. lately quoted shews this very plainly. The
liberi spctmnni might not alienate their land except at the
will of their lord ; they might not even sell a male beast, or
give a daughter in marriage without paying a fine, paid
only by serfs in other counties. It would therefore be im-
possible to consider them a higher class than the tenants
in gavelkind, merely because their land descended to the
eldest son.
This kind of free socage was gradually absorbedjjy; the
doinmant tenure of gavelkind," the rule of primogeniture
being abandoned in order to «hare the extensive privileges
allowed to the higher class. Thus the tenure of gavelkind
gradually spread through the county, over all lands which
had been even of the least free species of socage, and, as
we have seen, over some of the cottagers' land, enfran-
chised by special favour and included very early among
e tenements of gavelkind.
By the end of the reign of Eichard II. the limits of
• 2 Edw. gavelkind (as we now understand the word) were fixed *.
Edw. III. It has been since then the tenure of the county, '* the
IV. 19. * common law of Kent f," extending throughout the whole
t 5 Edw. /county over all sorts of ancient socage land, including all
Hen.iv.8.;the tcnurcs inferior to knight-service, except mere copy-
I holds, which have similar customs, but differ in their
/ nature from freeholds of gavelkind.
But this general tenure does not extend to any of those
tenements, which before the Conquest were called Allodium
and Thane-land^ and in the feudal times were held by
a superior tenure to socage, scil. by barony, francalmoigne,
castleguard, serjeanty, ancient demesne, and simple
knight-service. .
T
CHAPTER VI.
The Domesday Survey.
Domesday Book.— Its importance in all questions affecting lands in Kent.
—Ancient dimensions of land. — Sulings.— Ploughlands or carucates. —
Dimensions of the Kentish ploughland. — Sulings. — ^Yokes. — Oxgangs.
— ^Varieties of Gavelkind. — Copyholds in Kent. — ^Villeinage. — Military
and Spiritual Tenures.
Some knowledge of the contents of Domesday Book is
required in an examination of the tenures of any county,
but in a history of Kent it is indispensable.
We know that all land in Kent is presumed to have
been ancient socage of the date of the Conquest, until the
contrary is shewn, and nothing which can be thus proved
not to have been ancient socage is now gavelkind. The
date from which land in Kent has been held in a tenure
superior to socage must, in general, be that of Domesday
Book ; and in the same way no custom of partition will
be held good unless it is, or is presumed to be, of equal
antiquity. If it arose within the time of legal memory,
or even a little before the reign of Eichard I., it is bad
in law *. • Lmkhff^
This book records the exact amount of land in esLoh uamiu^.
manor which was held in demesne or in socage by the
tenants, the owner of the manor and the services by which
it was held.
It is the first authority as to tenures in Kent, though
by no means the only one. By supplementing what we
learn from it with the information contained in other
records, as the Escheat EoUs, the Books of Aids levied
on military lands, the Pleadings De Quo Warranto, the
Feodaries of Kent, Fine Eolls, and other ofiicial docu-
1 14 The Tenures of Kent. [cjhap.
ments preserved in Chancery, the Exchequer, and else-
where, evidence the most minute will be afforded con-
cerning the tenure of each manor of importance in the
county.
But all the subsequent decisions were grounded upon
the report of the Domesday Commissioners. For this
record is in the eye of the law the unfailing authority
on all points in the history of the Conquest of England,
as was said in the great Case of Tanistry : "Notre record
de Domesday est de melieur credit que toutes les forein
• Davii, discourses ou chronicles du monde *.''
28.
" This incomparable record/' says Hallara, " contains the names
of every tenant^ and the conditions of his tenure, under the Con-
fessor as well as at the time of its compilation, and seems to give
little countenance to the notion that a radical change in the
system of our laws had been effected during the interval. In
almost every page we meet with tenants either of the crown or of
other lords, denominated thanes, freeholders, or socagers. Some
of tljese, it is stated, might sell their lands to whom they pleased,
(1.) others were restricted from alienation. (2.) Some might go
with their lands whither they would, (3.) by which I understand
the right of commending themselves to any patron of their choice.
Others (4) could not depart from the lord whom they served : not,
certainly, that they were bound to the soil, but that, so long
as they retained it, the seignory of the superior lord could not be
t Middle defeated f.''
Ages, iL
299.
We find all these four classes in Kent, viz. the villani,
or gavelkind men, who might always alienate their land
freely, so that the lord's rights w^re unimpaired; the
bordarii and cottagers, who might never alienate without
obtaining a license and paying a fine ; the third class in-
cludes all the tenants in socage alike; and in the fourth
are the lesser thanes or drengs, who became knights every-
VI.] TJie Domesday Survey. 115
where throughout Kent except on the manors of the priories
of Christchurch and Eochester, when once the feudal system
had been perfected *.
An entry in the Escheat Eolls in the thirty-sixth year
of Henry III. respecting the manor of Tringston, or Trian-
stone, in Burmarsh parish, will shew the care with which
juries carried the history of particular lands back to the
time of the Conqueror : —
"The jurors declared upon their oath that the said land of
Trj'eneston, immediately after the Conquest of England was given
to a certain knight named Tryan^ who held it as long as he lived ;
after whose death Hugo Tryan his son and heir held it, and after
Hago his son Eobert Tryan. So that the said Tryan, Hugo, and
Bobert, held the said land without adverse claim upon them from
the time of King William the Bastard unto the time of King
John, who took it into his hands as an escheat together with the
other 'lands of the Normans' (i.e. on the separation of Normandy
from England, when the lands of all the tenants who chose to
remain in Normandy were forfeited to the Crown), and banished
the said Bobert, the last-mentioned tenant, from the realm of
England ^"
■ On the practical usefolness of Domesday Book, Mr. Taylor re-
marks: — "Among the most important of these inquisitions may be
mentioned Domesday Book, a work of which every one has heard, though
few persons are aware of its contents It is not often available as
practical evidence, owing to the frequent changes of name, which the
btmdreds and other places described in it have undergone since the
eleventh century ; though it is only just to our antiquaries to state, that
thiB defect had to a certain extent been remedied by their learned labours."
—{Toy/, on Evidence, 1484; ElliSy Introd. to Domesday ^ i. 34.)
Owing to the great abundance of early records concerning Kent, the
mconvenience here mentioned of alterations in the names of hundreds and
otlier places is very rarely felt in enquiries relating to this county.
k This verdict is published in the Calendarium Qenealogicum^ p. 47,
S6 Hen. III. 82. In that year the manor belonged to the Hospital or
i2
T 1 6 The Tenures of Kent. [chap.
The office of these commissioners was to ascertain with
precision "what and which the demesnes of the crown
were at that time and in the time of King Edward the
Confessor, and it hath ever since been counted the great
index to distinguish the king's demesnes from his escheats
• Madox, and other lands, and from the lands of other men *." Each
" '' 'manor in Kent was surveyed, the name of the tenant in
capite and of his sub-tenant being given, with a summary,
in many cases, of the previous history of the land, and of
its fluctuations in value. The demesne lands were carefully
distinguished from the socage tenements of the villani^
iordariij and cotarii^ the services of the different classes
being sometimes distinguished. The number of slaves,
if any, was noted, and a short account given of all the
arable and wood and pasture within the bounds of the
manor, of churches, mills, customs, amount of land-tax
in the late reign and at the date of the Survey, and other
important particulars.
The old Kentish measurements of the land were given,
as well as the new measurements, which the Normans were
endeavouring to introduce simultaneously into different
counties which had before no common standard of men-
suration.
Since the compilation of the Survey their report has
been the test used to resolve doubtful questions of tenure,
of the imposition in earlier times of aids and tallages, and
all disputes concerning ancient demesne, ancient mills,
and prescriptions against tithes. In future it will be
Maison Dieu of Ospringe, being held in capite as of the honour of Peverel.
The manor was held of this barony by the service of castle-guard of Dover
Castle. It was always of military, as opposed to gavelkind tenure, as ap-
pears from the Book of Aid, 20 Edw. III., the 'Testa de Nevil^ &c. For
its subsequent history see Hasted, viii. 2G1.
VI.] The Do7n€sday Survey. 1 1 7
used probably much more extensively in determining
questions of gavelkind *".
One or two examples will be sufficient to shew the form
of description used.
1. East Peckham (Lands of the monks of the Arch-
bishops).
"The Archbishop himself holds Pechehara. In the time of
King Edward it paid tax for six suUngs, and now for six sulings
and a yoke (6^). There are ten carucates of arable. Two in
demesne; sixteen socage tenants {villani) and fourteen husband-
men {bordarii) hold four and a half. There is a church, six slaves,
one mill, six acres of meadow. Enough wood (in the Weald) to
feed ten hogs. Of the land of this manor one of the Archbishop's
tenants holds half a suling; it was taxed with the other six
sulings in the time of King Edward, but it could not belong to
* Domesday Book was appealed to as legal evidence in very early times.
In Grale's Vet. Script. y i. 124, Peter of Blois records that the monks of
Croyland appealed to its authority tenip. Hen. I. Other cases occur in
the Ahhreviatio Flacitorum, e.g. "Abbas Sampson protulit cartas diver-
somm regmn, et praeterea pomit se inde super Rotulum Wintonia)
(Domesday Book).''— {Ahbr. Flac, 1 John Suff., rot. 7, 22.) In 2 John
the same evidence was admitted in a case of ancient demesne. Many
other cases are noted in the Index to the Ahhrev, Placit, It was ad-
mitted to decide a question whether certain lands were ancient demesne
OT frankfee (2 Edw. III. 15); whether certain boroughs were ancient
demesne (Madox, Fir ma Burgi, 5) ; whether lands were held of the
crown ut de honore^ or ut de corond (Kelham, Domesday Illustr., 245).
London was declared not to be ancient demesne by reference to it in
37 Hen. VII. 27. (See Index to Domesday, cv. ; Hale, Common Law,
4th edit. 105; Dyer, 150; Lev., 106; Sid., 147; Burr. 1048; 2 Leon.,
101 ; 3 Lev., 105.)
In 9 Edw. II. it was enacted that prohibition should not lie upon
« demand of tithes for a new mill, since which time Domesday Book has
l)een received as evidence of what mills are ancient.
Since the fourth Lateran Council, a.d. 1215, it has also been used to
determine what lands were held by the Church free from payment of
tithes by the exemption of Pope Paschal II. (Index to Domesday cv.'
1 18 The Tenures of Kent. [chap.
-
this manor except in paying the tax, because it was free land
(Le. the tenant was a dreng or lesser thane).
** Richard of Tonbridge holds of this manor two snlings and
a yoke (2^) ; there he has twenty-seven socage tenants {riUani)^
who hold seven camcates, and wood enough to feed ten hogs ; the
whole value being £4. In the time of King Edward the whole
manor was worth £12; when the Archbishop received it, £8;
now what he holds is worth £8 */'
2. Lewisham (Lands of the Abbot of Ghent).
''In the hundred of Greenwich the Abbot of Ghent holds
Lewisham of the King, and held it of King Edward the Confessor.
** It paid then, as now, land-tax for two sulings.
'' There are fourteen ploughlands of arable. In demesne there
are two; and there are fifty socage-tenants {piUani) and nine
husbandmen {bordaru), who hold seventeen ploughlands.
"There are three slaves. Eleven mills, worth with the rent
{gablum) of the socage-tenants, £8 12s. The profits of the port
are 40s.
** Of meadow there are thirty acres, and enough woodland for
the feeding of fifty hogs.
"The whole manor was worth £16 in the time of King Ed-
ward, afterwards £12, and now £30.*'
3. Part of Monk's Horton (Lands of Hugh de Montfort).
"In Stowting hundred, Ralph holds of Hugh (de Montfort),
Horton. Two soc-men held it of King Edward. It paid tax for
one yoke and a half. The arable land is one carucate and a half.
One carucate in demesne. There are four socage tenants. One
* "The Saxon pound, as likewise that which was coined for some
centuries after the Conquest, was near three times the weight of our
present money. There were forty-eight shillings in the pound, and five-
pence in a shilling ; consequently a shilling was near a fifth heavier than
ours, and a Saxon penny nearly three times as heaN-y. Soon after the
Conquest the pound sterling was divided into twenty shillings." — {ffum^^
nut, i. 103.)
VI.] The Domesday Survey. 1 19
mill worth thirty pence. Ten acres of meadow. Wood sufficient
for six hogs.^'
4. Otford (Lands of the Archbishop).
"The Archbishop himself holds Otford in demesne. It paid
land tax for eight sulings. The arable land is forty-two carucates.
In demesne there are six, &c., &c.
" Of this manor three thanes hold one suHng and a half, and
have there in demesne three carucates : sixteen socage-tenants
{viilani) with eleven husbandmen hold four. . . . The demesne of
the Archbishop is rated at £60, of the thanes at £12, and what
Richard of Tunbridge holds* in his Lowy at £10."
It may here be noticed that the possessions of the class
of villaniy i.e. men of gavelkind, and of the borderers or
husbandmen, who were a very inferior class of free tenants,
are recorded indiscriminately. In later records the lands
of these two classes are always kept distinct.
The examples here selected shew the truth of the
statement that the English were often permitted to hold
lands under the great Norman barons, undisturbed by the
Conquest.
Before saying more about the contents of Domesday
Book, it will be well t9 repeat in a few words the theory
which we have adopted concerning the Kentish tenures
before the invasion.
At a very early period the county was divided into
(1.) Crown-land ; (2.) Folk-land, the freehold of which be-
longed to the freemen of the district, " possession" being
granted, for limited periods, at the court of such a dis-
trict; (3.) Thane-land, which was commonly called Boc-
land, or Book-land, from the practice of transferring it by
charter (land-book); and, (4.) Gavel-land, tributary or
socage tenements, granted by the King, the Church, or
1 20 The Tenures of Kent [chap.
the thanes to the free tenants who farmed such lands in
their manors as were not required for the " board" or table
of the lord.
Below this free socage land ranked the holdings of the
husbandmen who cultivated the lord's portion of the
manor; they were free, but for many generations did
not share the privileges of the gavel-men. They have in
Kent long been confounded with the class immediately
above them, owing to their admission to these superior
privileges. Here and there, however, traces of the dis-
tinction between the " borderers'' and the higher socage-
tenants still exist; for instance, in Fulham and other
manors belonging to the Archbishop of Canterbury in
Middlesex, the tenants have paid in our own time a small
quit-rent of sixpence per acre as " bord-service," in lieu
of finding provisions for his table ®.
In the period extending from the reign of Alfred to that
• " We find a very numerous class, above 82,000, styled bordarii^ a
word unknown, I apprehend, to any other public document, certainly
not used in the laws anterior to the Conquest. They must, however,
have been also ceorls, distinguished by some legal difference, some pecu-
liarity of service or tenure, well understood at the time. A small number
are denominated cosceti, a word which does in fact appear in one Anglo-
Saxon document. There are also several minor denominations in Domes-
day, all of which, as they do not denote slaves, and certainly not thanes,
must have been varieties of the ceorl kind. The most frequent of these
appellations is cotariiy — {Hallamy Middle Ages, ii. 367.)
We have seen that these borderers are so called fix)m the Board-land
which they cultivated, in return for the free tenure of their parcels of
land and cottages, which gained in course of time the title "Jortfo."
** Dominicum dicitur quod quis habet ad mensam suam, et idcirco Anglic^
dicitur Bord-land."— (^ro^^., 4, tr. 3, c. 9 ; Co, Copt/k., 9 ; Co, litt, 5 b.)
None but the cottagers {cotarii) and the slaves were in Kent as badly
off as the vUhni in other parts, ** liable to be expelled on the least occa-
sion, sometimes without any colour of reason, sometimes on some sudden
fantastic humour, — * villenagium quod tempestive et intempestive pro vo-
luntate domini potent revocaii,' " — (Fkta, 5, c. 5 ; Co. Copt/k., 6, 9.)
VI.] The Domesday Survey, 1 2 1
of Edward the Confessor, the folk-land was gradually ab-
sorbed into the demesne of the crown as a more monarch-
ical spirit spread through the constitution *. c<^*"^^*''
About the reign of Edward the Confessor a system of i>»p-»-104;
,..,.,. . . Thorpe's
dividing the country into manors was introduced, having Glossary
been in all probability borrowed from the Normans. land;'
Since that time the manors of Kent have been divided Royal Pre-
into demesne lands and tenants' lands. 1^ hSl.
The former were retained by the lord of the manor, and J^^|^'^'
were held by spiritual or military services since the Con-
quest, before which period they were free for the most part
of any services except such as were due to the State from
all allodial tenants ; the demesne lands of the Church were
the most free, being subject only to the Trinoda Necessitas.
In some of the charters of Battle Abbey the Conqueror
defined this freedom to be " an exemption from all taxes
that the mind of man can imagine;" from which phrase
two of the principal title-deeds of that abbey were com-
monly called *^ Humana Mens."
Small portions of the demesnes were allotted to the cot-
tagers {cotarii\ a semi-servile class, and to the slaves, as
tenants at will. In later times these men gained their
freedom either by direct enfranchisement, most of the cot-
tagers being early included among the ^' men of gavel-
lind," or by a slowly advancing custom of liberty, like the
copyholders in other parts of England. The villani in Kent
"were tenants in fee of their lands, owing service of money
or labour to the lord of the manor '.
The limits of the demesnes and the tenants' land may
T)e said to have corresponded with the earlier division of
' " A perfect manor could never exist without a perfect tenure between
▼erylord and very tenant in fee." — {Co. Copyh,y 31 ; Att.-Oen, v. Far-
•«M, 2 Tyrwh., 223 ; Glover v. La7ie, 3 T. 11. 447.)
122 The Tenures of Kent. [chap.
thane-land (allodial) and gavel-land (tributary land). At
the Conquest there was no sudden shifting of the land-
marks ; the thane-land, i.e. the manors and demesnes, were
held by superior tenures, and owed spiritual or military
services, and the tenants^ land continued to be held in
socage, i.e. in gavelkind. In course of time the inferior
tenures of the husbandmen, cottiers, and serfs became
either gavelkind or copyhold.
There was no change of thane-land into gavelkind, but
military and francalmoigne lands were still distinguished
in Kent by the name of " Jfrank tenement," or " frank fee
{liberum feodumy^
Nor has there since been any change which could pos-
sibly convert lands into gavelkind, which were not held as
socage at the beginning. Of course, in some cases, evi-
dences of boundaries and of identity of lands and the like
have been lost for a time, so that the temporary presump-
tion has arisen, that the lands being in Kent are of the
nature and tenure of gavelkind : but such a presumption
can always be rebutted by production of the proper evi-
dences of ancient freedom.
It is evident that the record in Domesday Book of the
exact proportions of land in each manor which were held
in demesne, and distributed among tenants in socage, must
be of great importance to students of the tenures of Kent.
By means of it we know what proportion of each manor
was free from the nature of gavelkind, and if we can settle
the value of the measures employed by the Commissioners
we shall be able to express the amount of this free land
or *' frank- fee" in acres.
In most cases it has happened that the boundaries of the
free and the tributary tenure have been so well preserved
that we can identify the old divisions, and shew that the
VI.] The Domesday Survey. 123
same amount of land in each parish is free from the
common tenure of the county, as was known to be free at
the time of the Norman invasion. But this cannot be done
by using Domesday Book alone, chiefly because our know-
ledge of the ancient measures of land in Kent is at present
80 defective. We therefore supplement the information
gained from the great survey by means of later records,
which have been numerous and well preserved, as will be
seen by our references to them from time to time in later
chapters.
In all arguments respecting the ancient English measures
of land, we are forced at the outset to consider this diffi-
culty, viz. that inasmuch as many of them were from the first
essentially variable, it is hardly possible to reduce them to
any of our modem standards. Some of them have nothing
to do with the length and breadth of a superficies^ but were
fixed by political or economical standards, of which we
have now in several cases forgotten both the principle and
the use. Moreover in the early times before the petty
kingdoms of England were consolidated into one state,
each part of the country acquired its own system of mea-
surement ; one name was afterwards for the sake of uni-
formity applied to many different things, and it is now
of course impossible to find any common ratio between
them^
f In this waj Hallam ezplams the curious variations in the size of the
hundreds in various counties. *' It is impossible to reconcile this to any
angle hypothesis. No difference of population, though the south of Eng-
land was undoubtedly far the best peopled, can be conceived to account
for 80 prodigious a disparity. I know of no better solution than that the
divisions of the north, properly called Wapentakes, were planned upon
a different system, and obtained the denomination of Hundreds incorrectly
after the union of all England under a single sovereign," Sir H. Ellis
calculates the hundred at a hundred hides of land in all cases. (Introd.
124 The Tenures of Kent [chap.
Confining now our attention to Kent, we find that we
have some means of estimating the measures peculiar to
the county. It is however a question upon which high
authorities have disagreed, and therefore the following
calculations are only intended as an attempt to find an
answer to a problem, which may be solved in a dijflferent
manner by those who possess superior information upon
the subject.
Opinions have been much divided on this point, viz.
whether the Kentish suling corresponded in size to the
Norman carucate.
• Raman Somner*^and others maintained that they were the same
* measure, and supported the statement by an argument on
the similarity of their derivations.
Suling no doubt is derived from sul^ ^ a plough,' in the
same way as carucate is formed from caruca. Moreover
we know from an ancient record at Canterbury that *^ the
land of three ploughs was called in Kentish three swol-
ings,'' ("terram trium aratrorum quam Cantiani dicunt
t Speiman, three swolings \ ") ; but an examination of Domesday Book
•SuuSg/ certainly leads us to the belief that the suling was a differ-
ent measure from the carucate ^.
Occasionally the number of sulings and of carucates in
to Domesday, i. 185.) But there was no equality of size. *' A passage
from the Dialogue de Scaccan'o, 31, is conclusive : ' Hundredus est ex hy-
darum aliquot centeoariis sed non determinatis : quidam cnim ex pluribus,
quidam ex paucioribus hydis constat.' " — {Midd. Ages^ ii. 280.)
^ " SuUerye (said Coke) also means a ploughland. Unum solinum or
solinus terra?, containeth two plow-lnnds and somewhat less than a half,
for there (in Domesday) it is said, septem solini, or solina terra) sunt 1 7
carucataD.'' — {Co. litt.^ 5. a.) See also Archaologta Cantiana^ i. 234, and
V. 284.
The word sull or zull is said not to be obsolete in Dorsetshire even now.
Sul-paddle is a provincial word meaning ploughshare, and sul-t/ard, suliard,
and sidUsow are similar forms known at any rate until recently in the west
of England.
VI.] The Domesday Survey. 125
a manor is the same, e.g. " Hugo de Port holds Norton (in
Faversham hundred). It was taxed at four sulings. The
arable land is four carucates." The total acreage of the
parish is 900 acres. Generally, however, the measure-
ments disagree. For example, at Mepham or Meopham
there were " in the time of King Edward ten sulings pay-
ing land-tax, now seven. The arable land is thirty caru-
cates. There are four in demesne, and twenty-five villani,
&c. have twenty-five." Now by the deed of composition,
relating to the tenants of land in Mepham, A.n. 1306
(extracted in Somner's Appendix), it appears that these
twenty-five carucates were in reality twenty-five yokes
or quarter-sulings.
Again, Cuxton or Cookstone manor "paid tax in the
reign of King Edward for two and a half sulings, now for
two. The arable land is six carucates. In demesne there
are two ploughs," &c.
In Trosley (Trottescliffe) the sulimg and the carucate are
mentioned as if they were the same measure. " Once this
manor paid for three sulings, now for one. There are
three carucates of arable. One suling is in demesne, and
there is one plough, and ten villani have two carucates."
Such, however, is the diversity of the entries that it
seems to be almost impossible to ascertain any fixed ratio
l)etween the suling and the carucate, the Kentish and the
Gorman ploughland.
We know from Domesday Book that there were over
3,100 sulings in Kent, and from the valuable manuscript
in the Cottonian Library, De Suylingis Cantice^ that after the
Conquest there were 1,081 sulings in the county, excluding
the land in the King's demesne. But in the Survey we find
that by the Norman measurement there were over 3,000
carucates or lands tilled by one plough in the year.
126 ^ The Tenures of Kent [chap.
Any system of measurement by ploughlands must allow
for the difference in the soil, so that a ploughland in one
part would be larger than in another part of the same
parish '.
Two separate scales of measurement were used in Kent,
besides the carucate, which varied as we have seen : viz.
measurement by the suling with its subdivision into yokes
{juga\ and measurement by hides and virgates.
For instance, in an old Assise EoU of proceedings at
Canterbury, 12 Edw. II. (quoted in Agard's tract), it
is said that "in Hokinton are twelve hides, each con-
taining six-score acres ^"
But instances of measuring by the hide in Kent are
comparatively rare compared to those where the suling is
taken as the standard of mensuration.
It is frequently stated in ancient records that the hide
(often called carucata) contained eight oxgangs, each of
fifteen acres, so that it equalled 120 acres or 100 "by
English tale," {Anglicus numerus). The English were long
accustomed to reckon by "the long hundred of six-score V
^ *' One ploughland is not of any certain content, but as much a plough
can plough in a year, and it may contain a messuage, wood, meadow and
pasture, because by them the ploughmen, and the cattle belonging to the
plough, are maintained. Note also that every ploughland of ancient
time was of the value of five nobles per annum (338. 4d.), and this was
the living of a ploughman or yeoman.*' — {Co. litt.y 69 a, 86 b.)
For other estimates of the value of a carucate see Agard's tract on the
dimensions of land ; Palgrave, Rotuli Curia Regis, vii. ; Bracton, ii. 26, 8 ;
Kelham, Domesday lUustr. i. 169.
Fleta gives this description of it : " If the land lay in three common
fields, then 180 acres went to the ploughland, viz. sixty for winter,
sixty for spring, and the rest for fallow." — {Lib. ii. c. 72.)
^ Compare Cust. Roff. 3, 4, 9, 10; Cott. MSS. Vcsp. A. 22; Registr.
Roff. 63.
^ " Centum acras de centum et viginti ad le centum.'* Book of St.
Mary*8 Church, Warwick; Brit. Mus. Add. MSS. 6032; Ellis, Introd.
to Domesd., tit. Acre ; Hickes' Thesaurus ; Crompt. Jurisdict. 222, " Duo
VI.] The Domesday Survey. 127
The hide had also in ancient times been used in Kent to
mean the portion of land allotted to each free settler among
the invading tribes. By the most ancient estimate of the
contents which is known to exist, Kent contained 15,000
of these hides, (the whole of England, according to Spel-
man, containing 243,600) not including the uninhabited
marshes or the forest lands which fringed each settlement,
and bounded the village communities with sacred ^^ marks'^
or marches, on which religion and policy forbade the free-
men to encroach ".
Mr. Kemble, one of the highest authorities on such
points, has calculated thftt each of these hides contained
forty of our acres.
Bede, in the History of England, remarks that the Isle
of Thanet contained 600 of these 15,000 hides. Making
due allowance for lands lost in the sea and gained from
the river, and those which were at that time mere forest
and marsh, Lewis, the modem historian of the island, has
considered that the allowance of 600 hides, each containing
40 acres, was substantially correct °.
According to Hasted's History, " the whole island con-
tains about 3,500 acres of arable and 3,500 of marsh,"
^th little wood, and no waste land at all *. • Hart.
X 228
There are other indications that the ancient "hide" was
ct small measure as used in Kent. Thus we find by the
records of Canterbury Cathedral that Otford manor con-
*aiaed 100 hides (taxed later for eight sulings, about 1,600
*^<Jaa quae sunt duodecies viginti acras." — {Agard's Tract, Cott. IfSS.,
^aust. E. 5.
^ IKemble, Anglo-Saxons in England, vol. i., chapter on Measurements ;
^^ted, vol. i. 301; Spelman, Glossary, 292; Feuds and Tenures, 17;
^^I'Xie, Hist. i. 103.
* liCwis, Hist, of Thanet. init Hasted., vol. x. 223, 225 ; Lambarde,
*^^f^mb., 97.
128 The Tenures of Kent. [chap.
acres of arable), Graveney 32, Bereham 36, Hardres 104 ;
and that the donation of King Offa in 790 comprised 90
• Monas- hides, there called " tributaria terrce'*.^^
These small hides were called mansesy mansurce^ tribu-
taria^ indifferently. The manses possessed by the bur-
gesses of Canterbury at the Conquest are hides of this
kind, and not ^'dwelling-houses/' as the phrase has often
been translated.
But, as we have seen, the word "hide'' had another
meaning in later times, viz. a piece of arable land con-
taining in general 120 acres.
It will be seen that it is not of much use for our present
enquiry to make further calculations as to the measure-
ment of Kent by hides. We will only notice that the
600 hides of Thanet appear later as 66 sulings, and the
15,000 hides of Kent as 1,144 sulings, paying land-tax.
Eeturning to a consideration of the last-named measure,
we may examine those records which define its contents in
acres. But here we must consider whether the acre of the
earliest deeds is indeed the same as our own, and what, if
any, was the difference between the customary and sta-
tutory acre in Kent.
This is fortunately not such a difficult question. Kemble
said generally that the ancient English acre did not much
differ from the modem measure of 4,840 sq. yds. In Kent,
however, there certainly was a difference of a considerable
importance.
Coke writes : " The contents of an acre are known. The
name is common to the English, German, and French.
Acra in Cornwall continet 40 perticatas in longitudine et
4 in latitudine, et queelibet perticata de 16 pedibus in
fCo.iitt. longitudine -f." In other words, the acre here described
contains 160 perches, each perch being measured by a rod
VI.] The Domesday Survey. 1 29
of sixteen feet, instead of sixteen and a half, as in the
common acre.
The Kentish acre was measured in the way described by
Coke*. Varying indefinitely in length and breadth, it*Em»,
was always a piece of land containing 160 perches of six- Domead.
teen feet square, i.e. a fraction over 4,551 square yards.
Thus 1,000 statutory acres would contain over 1,063
customary.
There was a custom of measuring forest land by a rod
of 20 ft., and in some places a rod of 17 ft. was used.
In the measurement of the lands of the Abbey of St.
Augustine taken in the reign of Eichard II., and pre-
served by Thorn, the chronicler of that Abbey f, it is t Decern
recorded that, " in Snave the Abbot had 248 acres mea- 2,032.
Bured by the rod of 20 feet."
In some parts of the Weald of Kent, especially about
Cranbrook, we find mention made of " Flemish acres,'' and
there are in the Eegister of Battle Abbey conveyances of
land measured in this way: e.g. Stephen de Godintun
made a feoffment in confirmation of a grant, made by him
and his father for the health of their souls, of twelve
Tlemish acres of marsh land to the church and monks of
fit. Martin, at Dover. This was probably owing to the
immigration of Flemish clothiers into that part of the
county. •
But the Kentish acre contained 160 perches of the size
«bove mentioned. "The elementary acre" was forty of
t^ese perches in length by four in breadth, but it was
found convenient in practice to use acres of different length
^d breadth, care being taken that the superficies should
^"W^ays be the same if possible. Thus an acre eighty
P^^ches long was two perches in breadth. We have
^ canon or rule of measurement used by the Abbey of
K
1 30 The Tenures of Kent. [chap.
St. Augustine, which shews how much the acre varied in
shape, and how accurately land was measured in early
times "".
When we know the ancient dimensions of the acre we
can estimate the size of the " day-work,'' which contained
four perches of sixteen feet, being the fortieth part of
an acre.
This is a very common measure in Kent; e. g. in
1 Edw. I. Eobert de Crevequer granted to William Ken
one rood and six ^ deywerks,' called Brook, in Little Wro-
tham. In Hil. 33 Edw. lY. Exch. a Kentish jury found
that " the land called Priest-feld is glebe, except one rood,
and eiffht dey works, which make one-fifth of an acre *."
Roff. 582, . .
696. And m the Eegister of Battle Abbey we read that
"Lucas at Gate of Bexley enfeoffed the sacristary of Battle
Abbey of four day works in the field called Wulneveland."
The same measure is used in the survey made of the
city of Maidstone in 1597.
There is another measure which occurs both in Domes-
day Book and in later records as applied to lands in Kent.
This is the ^ oxgang,' or bovate, which seems at first to
• Taking the perch at sixteen feet, the canon shews the breadth of an
acre for each perch in length. Thus the common proportion would be, —
LEKOTH, IS FEBCHES. BBEAS^H, P. P. IN.
40 4
or 80 . . 2
The otlier measurements were as follows : —
LENOTH, IN PEECUES. BEEADTH, P. F. IN.
76 . . 2 11
64 . 2 7 4
60 . . 3 2 2
26 . . 6 2 4
23 . . 6 15 3
The l^^blc is calculated for acres of all lengths, between 23 perches and
76 perches. {T/wrfi, X, StriptoreSy 2,032.)
VI.] The Domesday Survey. 1 3 1
have been as much arable as an ox could plough in a year.
It is frequently described as the eighth part of a hide, or
fifteen acres ^.
We now come to a measure which has given its name
to many districts in different parts of Kent, viz. the Yoke-
land ovjugum. Several manors are still divided into yokes.
The yoke was the fourth part of the suling, and varied in
size from forty to fifty of our acres, or a little more.
Coke indeed suggested that "the yoke in Domesday
contained half a plough-land*." This opinion seems to»Co.iiit.
have rested upon an isolated passage in the description of
Haydon Manor, or the Mount, in Cobham, viz. : —
** Emidf holds of the Bishop (of Bayeux), Hadone. It was taxed
as three yokes. The arable land is one carucate Odo holds
of the Bishop in the same place one yoke. The arable land is half
a carucate. In demesne there is nothing.**
This passage is also quoted by Agard in the tract on
dimensions of land. It is not deserving of much con-
sideration, as Sir H. Ellis shewed in the preface to Domes-
day. There is another passage which shews very clearly
what proportion the yoke bore to the suling.
It occurs in the description of the manor of Eastwell,
and runs thus: —
*' Hugh de Montfort holds one manor in Eastwell, which Frederic
ield of King Edward. Taa^d at one suling. Three yokes are within
JZwtgVs boundaries f and the fourth yoke is without J*
Before leaving the subject of the yokeJand we may
notice some entries in the ancient account-rolls of the
■* The oxgEDg varied in different counties. ''Eight acres made an
^'^^Saiig in tlie fields of Doncaster. Oxgang, yardland (virgate), and hide
^ ploughland are altogether uncertain according to the diversity of
P^ces."— (Co. /«'«., G9 a. 2.)
k2
132 The Tenures of Kent [chap.
monks of Eochester, which shew what the acreage of
the yoke-land was in a great portion of Kent.
In the manor of Darent each acre of gavel-land (there
called terra gabla) paid a quit-rent of one penny, and each
yoke-land a quit-rent of forty pence.
In the rent-roll the names of the tenants, the amount of
• Custum. their holdings and of their rents, are set down thus * : —
Eoffense,
P*^' TENANTS. ACBES. RENT.
«. d.
A. B. 25 2 1
CD. 10 10
E. F. 12 10
G. H. 12 14
I. J. h<]ilfa yoke 1 8
Heirs of W. one yoke 3 4
Heirs of Anselm one yoke 3 4
Tenants in the Weald one yoke of gavel-land 3 3
Of the demesne eight acres 3
It may be seen from this table that the yoke- land, or
quarter of the suling, was forty acres in Darent.
This gives 160 acres to the suling, which estimate may
in general be depended upon, although it does not suit
every district in the county, as will be seen from the
following paragraphs.
As to the dimensions of the suling. There are great
diificulties, as has been seen, in fixing upon any estimate
which will suit the dimensions of the suling in every part
of the county.
There are more reasons in favour of an estimate of 160
acres of arable than of any other. In some of the manors,
however, of the see of Eochester it contained 180 acres,
and in the Isle of Thanet and the neighbouring possessions
of the Abbey of St. Augustine 200 and even 210 .acres.
1. The rent-rolls just quoted shew that in Darent at
VI.] The Domesday Survey. 133
least the yoke, or quarter of a suling, was a measure of
forty acres.
This measurement is confirmed by several entries in the
Survey and elsewhere.
2. For example, the Bishop of Bayeux held eighty acres
of land in HoUingbounie, and it was recorded that " this
half-suling which never paid land-tax is rented by the
Bishop of Bayeux from the Archbishop," (" hunc dimidium
solinum qui nunquam reddebat scottum tenet Episcopus
Baiocensis de Archiepiscopo ad gablum *.") • Dome«d.
3. Again, the small manor or reputed manor of Poole, Henshaii,
in the parish of Southfleet, was given to St. Andrew's xabiw?^
Priory by the Bishop of Rochester upon the division of
their revenues. We know from the Registrum Roffense
that it contained exactly eighty acres t, and from a record fReg.Roff.
in the Cottonian Library that it was half a suling '^.
The same estimate of 160 acres is adopted by the latest
writers in the construction of the following passage in the
first page of the Domesday Book.
4. In the survey of the common lands of the Priory of
St. Martin, at Dover, it is said, " in the common land are
four hundred acres and one half which make two and a half
sulings," (" in terra communi S. Martini sunt 400 acrse et
<iimtdium qu8B fiunt 2^ solini.")
« " The Bulings of Rochester.'' (Cotton. MSS. Vesp. A. 22, 69.) " In
fiakestane hundred (Axstane) et Southfleet 5 solini, Poole ^ solini."
CfutumaU Roffense, 12, 32.
Hasted's account is inaccurate. " Pole or Poole is a manor here, which
anciently estimated at one suling or ploughland. It appears by the
Sock of Knights' Fees, taken in the reign of Edward I., and now remain-
ing in the Exchequer, that Sara de Pole was owner of it in that reign,
Holding it in dower, as two parts of a knight's fee, of the Bishop of
Bochester."— (iZJw^. ii. 432.)
It is entered in the Book of Aid, 20 Edw. III., as two- thirds of
^ knight*s fee held in Southfleet. See the Testa de Nevil.
134 The Tenures of Kent [c5HAP.
Agard considered that this dimidium means " half a hun-
dred acres," and not half an acre. He was however mis-
taken in supposing that " half an acre" is never mentioned
in Domesday Book. It is quite possible that in this place
the dimidium should mean fifty acres, but very competent
authorities are at present inclined to side against his inter-
• Ellin, pretation*.
Introd. to ^
pomesday. Ou the last- mentioned authority the "suling" in the
Arcbjeoi estatcs of the Canons of Dover was equal to 160 acres.
v"28^ By Agard's construction of the words it would equal 180
acres ; and corroborative evidence can be shewn for either
estimate, which would seem to shew thatlthe suling varied
between those sizes in different parts of the county.
5. We have already noticed that the demesnes of
Trosley or Trottescliffe manor were, at the Conquest, one
suling in extent. In 1255 the manors of the Bishop of
Eochester were measured and valued : it was then stated
upon oath by the witnesses that the land retained by the
Bishop was 200 acres of arable, on which there were three
ploughs at work. So that in this case the suling was
larger than we should have expected. The steward how-
ever asserted, when " diligenter examinatus," that by the
custom of those parts (consuetudine regionis) each plough-
land (carucata) — which must here be equivalent to the
suling, however the two measures may differ in Domesday
t Registr. Book — contained 180 acres t.
63.64. ' It is quite possible that the hundred of sixscore "by
English tale" was used by the witness; in that case the
one hundred and fourscore acr^ of the witness would cor-
respond with the 200 acres of arable, which the "suling'*
held by the Bishop in demesne was found by measurement
to contain.
In another part of the same survey it was found that
VI.] The Domesday Survey. 135
Borstal! manor did not contain one ploughland (in de-
mesne), but only 140 acres of arable.
6. In the same record it was found that the manor of
Hailing, with its appurtenances in " Cookstone and Hole-
berghe," had four ploughs upon the demesne, but not quite
four customary ploughlands, i. e. sulings ; four sulings on
the last estimate would have contained 720 acres of arable,
whereas in these manors were only 717 acres, a very
trifling difiference.
7. Sir H. Ellis, in his preface to Domesday Book, ad-
duces evidence from an ancient chartulary, shewing that
the Kentish suling was estimated out of the county at
200 acres.
8. It is possible that a further examination of certain
deeds and records relating to the Church lands i!i the Isle
of Thanet may set before us more clearly what the value
really was of the measures into the nature of which we are
enquiring.
The manors of Minster and Monkton with their appur-
tenances, belonging respectively to the Abbey of St. Augus-
tine and the Priory of Christ Church, Canterbury, extended
over the whole island, which in the most ancient times was
estimated at 600 hides.
They were thus described in Domesday Book : —
" The Archbishop himself holds Monkton. In the reign of King
Edward it was taxed at 20 sulings, and now at 18. Thirty-one
carucates of arable. Four in demesne. Fourscore and nine villani
and twenty-one bordarii hold twenty-seven '."
' "The demesnes of Monkton,'' says Hasted, x. 235, "are very exten-
sive, the rack-rent being upwards of £700 per annum" in his time. lie
adds, " The extensive demesne lands might well employ fourscore and nine
villeins" This of course is a mistake. The villani in Kent were free
tenants in socage (gavelkind), and the demesnes were cultivated by the
husbandmen or hordarii.
136 The Tenures of Kent. [chap.
"The Abbot holds Tanet (Minster), which was taxed at 48
sultngs. The arable land is sixty-two carucates. Two in demesne :
150 villani and 50 bordarii hold 63 ; of this manor three
knights {milites) hold as much of the villeins^-land (gavelkind) as
is worth £9, &c., and there are three carucates/*
There were therefore in the two manors, including their
dependencies, St. Nicholas, Sarre, All Saints, Birchington,
St. Peter's, Eamsgate, Margate, and Stonar, sixty-six su-
lings altogether paying land-tax.
The demesne lands of the Church, which were held in
francalmoigne^ did not pay this tax, so that there were
sixty-six sulings of gavelkind land, besides the demesnes.
The demesnes of Minster were 435 acres of all sorts of
land, as may be seen in the Kegister of St. Augustine's
Abbey, and the accounts and measurements preserved by
• Decern Thomc, chroniclcr to the abbey *. If the 66 carucates of
Scriptores,
2031,2. the tenants' land were equal to 48 sulings, the demesnes
must have held about \\ suling. Those of Monkton were
nearly three sulings (2f ), as may be calculated from the
extracts given from Domesday Book.
It remains to see whether this estimate of the gavelkind
land in the Isle of Thanet was considered in later times to
be correct. This we find to be the case. Thus in the
Custumal of Monkton manor preserved at Canterbury the
rents and services are enumerated which were due from
the tenants of " the eighteen sulings held in gavelkind of
the monks^'* at a time when the demesnes were preserved
t Somner, quitc distiuct from the socage portions of the manor* f.
Gav. 68 ;
Hasted
X. 266.* * The manor of Monkton extended over the parishes of Monkton (2,364
acres), Birchington (1,680 acres), and Wood or Woodchurch, which at
that time was almost covered with wood. (Lewis' Hist. Thanet ; Hasted,
X. 311.) It will be seen that the acreage of the manor corresponds, as
nearly as we can estimate the acres under cultivation, to the proper num-
ber of sulings, yiz. a little under twenty-one.
VI.] The Domesday Survey, 137
-■ "
Again in the composition made in 19 Henry VI. between
the Abbot of St. Augustine and the tenants of his gavel-
kind lands, it appears that the measurements given in
Domesday Book were found by actual admeasurement to
be correct at that period within a very small fraction.
This deed recites * that in Minster are 47f sidings and
38 acres, paying *^ gavel" or rent either in com or money :
the distinction between the services points to the ancient
difference between the villani and the bordarii or husband-
men bound to find provision for their lord's table.
Of these 42|^ and 38 acres were "penny-gavel land,"
sometimes called "in-rent land;" the rent was fixed for
the future at eightpence per acre, and at double that
amount for the 4| sulings of "corn-gavel land," some-
times called "in-court land." "This composition," says
Hasted, "still continues in force." The reputed manor
of Hengrave (203 acres) in Margate was made up of this
" corn-gavel land *." • Somner,
• Glav 17*
The deed then proceeds to define the extent of a suling Haated. '
in the Isle of Thanet, which it fixes at 210 acres. " Qu8B- ^ *^'
Ubet Swilling continet in se ducentas et decem acras
terr»."
Thus 48 sulings of gavelkind land were equal to 10,080
acres of arable, and the two manors with their demesnes,
circa 70 sulings, would be circa 14,700 acres of arable;
in which calculation Lewis, the historian of Thanet, agrees.
At present there are 23,000 acres of arable land in the
island.
' A copy of this deed may be seen in Somner's handwriting in the
h*brary of Canterbury Cathedral. It was printed in Lewis' Hist, of
Thanet, p. 86; Appendix xv. See also Somner on Gavelkind, 17, 26,
58, 117; Madox, Exch., 484; Thome's Chronicle, Appendix, in the
Beeem Seriptores; Hasted, x. 275 ; Selden on Tithes, 321, 331.
138 The Tenures of Kent [chap,
9. We have now got various data for determining the
extent of the suling. In different parts of the county we
have seen that it was 180, 200, and 210 acres. (Accord-
ing to one calculation it was only 160 acres in Dover.)
There was one more deed, preserved in the registry
of St. Augustine's Abbey, which recited that the suling
contained 200 acres, the most usual estimate.
The manor of Norbome or Northboume contained thirty
sulings of gavelkind land. In the demesne of the Abbot of
St. Augustine's were two ploughlands, and an English free
tenant held of them one suling, besides portions of the
gavelkind land (terra villanorum).
' In 1364 the Abbot entered into a composition with his
tenants, who wished to commute their services ; they
agreed to pay in future 14d. yearly rent per acre in each
suling, "and each suling in Northboume contains 200
• Thorn, acrCS*."
Decern
Scriptores, 10. In the same deed it was declared that each acre in
2203
the manor of Kipley was worth 3d. yearly, " and each suling
in Kipple contains 200 acres."
This shews that the suling did not vary in all cases with
the annual value of the land, but fluctuated in extent
only within certain recognised limits. From these calcu-
lations it results, that while in most cases the Kentish
suling contained 160 acres of arable land, in certain parts
it varied from 180 to 210 acres.
We could not by the light of Domesday Book alone
define with any exactness the limits of the ancient socage
tenements in any particular manor ; that can only be done
in each case by a comparison of later evidences and re-
cords, e. g. the particulars of grants by letters patent, the
inquisitions post mortem^ the feodaries and other official
documents preserved among the public records, and title-
VI.] The Domesday Survey. 139
deeds belonging to private families. The registers, ^ ledger-
books,' and chartularies of the ancient Kentish monasteries
are full of valuable and accurate information respecting
the proportions of demesne lands to socage in each estate.
These are dispersed among the collections in the State
Paper Office, the British Museum, and many private
libraries '*.
Before the Norman invasion Kent had been divided
primarily between the King, the Church, and the great
thanes, representing the tenants in capite or barons.
Out of 430 manors described in Domesday Book as
lying within its precincts, not fewer than 194, or nearly
one- half, belonged to the Crown.
The remainder was unequally divided among the Arch-
bishop, the Bishop of Kochester, the Abbots of St. Augus-
tine and St. Martin at Dover (Mass-thanes), and among the
Queen, the Earls Godwin, Harold (king), and Leofwin (son
of Godwin), and the nobles, Alnod, Brixi, and Sbern *. • Lingard.
These eleven (says Henshall -f) were the great tenants in ^^sammary
chief, the principal thanes, the "peers of Kent," "and it^^^.^^
is to be observed that the Conqueror, when he distributed ^®^*' 20.
• "It IS much to be lamented," says Hasted, ** that in the hurry of this
^flBolution of monasteries great numbers of excellent books, and other
manuscripts, were made away with and destroyed, to the unspeakable
low of the learned world ; for there was scarce any religious house that
had not a library, and several of them had very good ones. From their
chronicles, registers, and other books relating to their own houses and
^•tates, the history and antiquities of the nation in general, and of almost
^oiy particular part of it, might have been more fully discovered. The
"^ny good accounts of families, of the foundation, establishment, and
■Ppxopriation of parish churches, and the endowment of their vicarages ;
^ the ancient bounds of forests, counties, hundreds, and parishes ; of the
P'^vilegcs, tenures, and rents of many manors and estates, and the like,
WiUch we meet with in such of their books as are still remaining, are
•'^cient testimonies how great the advantage would have been had there
^>^^ a greater number of them preserved.*' — {Hcut, i. 332.)
140 The Tenures of Kent. [chap.
the county among his followers, still kept up the same
number of tenants in chief."
This last statement is incorrect, inasmuch as the estates
of the Prior of Christ Church, Canterbury, had been held
directly of the Crown, and quite independently of the Arch-
bishop, from the early times of Archbishop Theodore ; and
Lanfranc, in separating his revenues from those of the
monks, only restored the ancient order of things, as appears
fully from the letter of the monks to Henry II., extracted
in an earlier chapter.
After the invasion William only kept a small part of
Kent in his own hands, as will appear in the chapter treat-
ing of Ancient Demesne; but he gave 184 manors to Odo,
his half-brother. Bishop of Bayeux and Earl of Kent.
Odo, it appears, did not keep more than a dozen manors
in his own hands, giving the rest out to his tenants by
military service, many of them being Englishmen, the old
owners of the land. On his disgrace, four years after the
completion of the Survey, his estates were divided. Where
a baron had been his tenant, the same man was allowed to
hold the manor direct of the Crown, in general by the ser-
vice of defending Dover Castle. The seignory over his
other lands was transferred to some other baron, with the
services and rents of the knights and tenants in socage.
The list of the great Kentish landowners at the date of
the Survey may be drawn up thus : —
1. The King, who retained the ancient demesne, which
had belonged to King Edward, and all the royal hunting-
grounds in the Weald and other forests, with certain cities
held in demesne or by a fee-farm rent.
2. The Archbishop of Canterbury, who held vast estates
by barony, although the Earl of Kent for a time deprived
his see and that of Kochester of a great number of manors,
Yi.] The Domesday Survey. 141
recovered in the suit before the sheriff on Pinenden Heath,
near Maidstone.
3. The knights of the Archbishop, who had the seignory
oyer twenty-seven * knights'-fees.' In the Black Book of
the Exchequer (p. 53), it appears that the Archbishop's
whole possessions were estimated at 84f * knights'-fees.'
4. The Priory of Christ Church (monachi archiepi8copi\
holding estates direct of the king by the spiritual services
of firancalmoigne. These lands, pending the question of
the separation of their revenues, were entered in the name
of the Archbishop, though not said tq, be held by him as
his own domain {tenet in dominio\ as were the lands which
he retained for himself and his knights.
5. The Bishop of Kochester, whose estate was small.
He held only twelve ^ knights'-fees.' The Bishop (Gun-
dulph) soon afterwards divided his lands with the monks
of St. Andrew's Priory in Kochester, who thenceforth held
their share in francalmoigne by purely spiritual service.
6. The Abbot and monks of St. Augustine, who held
fifteen ^knights'-fees' by barony. The size of their pos-
sessions may be inferred from the fact that in the reign of
Richard II., according to their chronicler Thome, they
had twelve thousand acres in their demesne lands alone ^.
*The Priory of Christcburch and tho Abbey of St. Augustine were
near neigbbours and bitter rivals. Their registers are full of the lawsuits
between the two foundations. Lambarde's account of their rivalry is
Tery animated : — " There was in Canterbury within the timo of late
memory^ besides others, two houses of great estimation and livelihood :
the one Christcburch and the other St. Augustine's : the monks of which
places were as far removed from all mutual love and society as the houses
were near linked together ; and therefore in this part it might well be
verified of them, which was wont to be commonly said, —
* TJnicum arbustum non alit duos Erithacos.
* One cherry-tree sufficeth not two jays.' "
Peramhul. 298.
142 TJie Tenures of Kent [chap.
7. The abbot of Battle, to whom was given in barony
** seven sulings " of land at Wye, and jurisdiction over
twenty-two hundreds in the Lathe of Scray. The Begister
of Battle Abbey describes this estate thus : " Septem swol-
ings, quae sunt terrae septem hidarum^^^ i.e. in Sussex land
was measured by the hide, where a Kentish man would
use the suling.
8. The Canons of St. Martin, at Dover, held twenty-four
sulings in francalmoigne.
9. The (alien) Abbot of Ghent, whose house retained the
*Hwo sulings" of la^d at Lewisham, which had been held
by it in the late reign ^.
It will be seen from these nine preceding headings
how extensive were the possessions of the Church in
Kent.
Many objections have from time to time been made
• Hearne's against a passagc in Sprott's Chronicle *, (a monk of St.
Sprott, ' Augustine's Abbey, whose statements cannot indeed be
Lin^rd, reccivcd with implicit belief,) which seems to imply that
*'^^' nearly one-half of the land in the kingdom belonged to
the monks.
Without entering on the general argument as to the
rest of England, we may notice that according to Domes-
day Book, and other records of high authority, such as the
Black Book of the Exchequer, out of the 278 knights'-
fees into which the military lands of Kent were divided,
the Church held nearly 108 \
This does not affect at all the extensive estates of the
priories holding in francalmoigne, or of the smaller reli-
gious foundations endowed in very early times by the
y The alien priories retained their lands in England until 2 Henry V.
* Scil. the Archbishop, 84 J; the Bishop of Rochester, 8; and the
Abbey of St. Augustine, 15.
VI.] The Dotnesday Survey. 143
greater landowners. We now return to the laymen hold-
ing lands in capite by barony.
10. Bichard Fitz-Gilbert, commonly called Eiohard of
Tonbridge. His estates lay for a league everyway round
his castle of Tonbridge. This was called the Leuca, League,
or Lowy of Tonbridge. Much of his land was held by
him as sub-tenant of Odo of Bayeux. His manors con-
tained " thirteen sulings."
11. Hugh de Montfort, besides lands held of the Arch-
bishop by military service, held a large estate in capite.
Some of it is entered as waste (" one suling of waste land
in Newington"), and land lately redeemed from the forest
(half a denne of the manor of Tinton, in Warehorne);
a good deal of it lay in Komney Marsh, and had been held
by * 80C-men' before the Conquest, and therefore retained
its gavelkind nature.
12. Eustace, the Earl of Boulogne. Some of the lands
held in barony by him were held again of him by " grand
serjeanty," in the same way as some of the manors belong-
ing to the Archbishop. This tenure did not at first attach
only to the king's person, as in later times.
13. Hamo, the reeve or sherijff of Kent, and steward of
the king's household {dapifer). This was Hamo de Crepito
Corde or Crevequer. His estate consisted of nearly twenty-
mo knights' -fees, according to the Black Book of the
^Exchequer.
14. Albert, the king's chaplain, held seven and a half
wilings at Newington by Sittingbourne, which were soon
afterwards given to a priory founded in that place.
It will be observed that several tenants are spoken of
«8 holding so many " knights'-fees," and that the whole
county contained 278 knights'-fees. It would bo very
desirable to know how much land each fee contained, but
144 ^^^ Tenures of Kent [chap.
of this we have not very definite accounts, from the nature
of the case.
There are many different estimates of the contents of
a knighf s-fee. Some placed it at 400 acres, some as high
as 1,600 acres'.
" But a knight's-fee is properly to be esteemed accord-
ing to the quality, and not according to the quantity of
Co. utt the land, i.e. by the value and not by the contents *."
At first this value was £15 per annum of clear revenue,
then by the statute De Militibvs^ 1 Edw. II., it was fixed
at £20, and afterwards at £40.
However much in different parts of England the contents
of a knight's-fee may have varied, an argument might be
supported that it did not fluctuate greatly in Kent. We
may remember that when a large estate was granted out
in knight-service, the obligation to perform the military
duties was laid upon a comparatively small portion of the
whole. We know too that in Kent this portion was the
demesne-land of each manor, the rest being held from the
first in free gavelkind. The demesnes would naturally be
* " We are told," says Lingard, " on the authority of Sprott, the monk
of St. Augustine's Abbey, that fmir hides mad€ an entire fee. Yet when
we come to the fees themselves we find none containing fewer than five
hides, and some containing more. In the Eetum of Richard de Haia, we
are told that knights do service for five carucates or hides of land, and
that some have that number and others not." — [Lingard^ Eist.y i. 426 ;
Lib. Nig. Scacc, 278.)
The MS. "Book of St. Mary's Church, Warwick," Brit. Mus. Add.
MSS., 6032, contains the following calculation, giving 640 a. to the fee :
" Sciendum est quod magnum feodum militis constat ex 4 hydis, et una
hyda ex 4 virgatis (yardlands), et una virgata ex 4 femdellis (farthing-
deals or vemdals, a Hertfordshire measure), et una femdella ex 10 acris
terrae." — (See Blount's Glossary, title Farthing-deal.)
For many other estimates see Co. litt., 69 b., 76 a., 83 b. ; Crompt,
Jurisd., 222; Selden, Titles, ii. c. 5.
VI.] The Domesday Survey. 145
fhe best portions of each manor^ and the best lands of
each district and throughout the whole county would vary-
in quality much less than the best and worst portions of
fhe socage tenements alone, some of which would be little
better than waste, or the "very stubborn land" of Domes-
day Book.
The question is not likely to be soon settled. Mean-
while, we may notice that Spelman has given in the Glos-
sary (title Suling) an extract from a MS. belonging to the
Canterbury library to this effect, — " in Kent two sulings
make one knight's-fee ;" and that Sprott, who assigned
"four hides" as the amount of its contents, was a Kentish
man^ and belonged to St. Augustine's Abbey: he must
therefore have been familiar in his personal experience
with the measurement of the military lands (as distinct
from the gavelkind) composing the fifteen knights' -fees
held by that Abbey, at the time when his Chronicle was
written. In later times, as we have seen, the value of the
knighVs-fee rose with the value of land.
The number of sulings paying land-tax at the date of
Domesday Book was 1,144 and a fraction.
That this was a correct measurement we ascertain partly
by the fact that in later times the lands of different manors
were found by actual measurement to correspond with the
estimate in this survey ; e.g. the manors of Minster and
Konkton in the Isle of Thanet, the deeds relating to which
have been described in this chapter. Partly also that we
have a list of " the sulings of Kent and the names of their
tenants," which confirms the calculations of Domesday
Book^
* "De Suylingis Comitatiis Kanci» et qui eas tenent. Ex valde
▼eteri libro fide digno."— ( Co^on MS8. Claud., c. iv. 153 b.) The re-
ference to tliifl record in the printed index of the Cotton MSS. is wrongly
L
146 The Tenures of Kent [chap.
This record, excluding the ancient demesne of the Crown
in Dartford, Aylesford, Milton, and Feversham, mentions
1,081 snlings distributed among the "tenants of Kent"
It is the connecting link between the lists given in Domes-
day Book and that of the Black Book of the Exchequer in
the reign of Henry II. "
Leaving now the tenants in capite^ of whom more may
be said under the head of tenure by barony, we find 212
sub-tenants by military service, whose names have been
arranged by Sir H. Ellis in his Preface and Introduction
to Domesday Book, to which recourse must be had when
any point of difficulty arises in matters concerning the
great survey.
gi^en. In the beginning of the book is the memorandum, "this book
I had from my Lord fiurleigh." The list was compiled either in the end
of the Conqueror's reign or in the beginning of that of William EuiiiSy
as we see by the names of the tenants, Gomes Eustachius, Hugo de
Montfort, &c.
"" In several instances the father, son, and grandson appear in these
records respectively holding the same estate, e.g. Ansgot de Eos, Helto
Fitz-Ansgot, and Walter Fitz-Helto, tenants of seven sulings, which ap-
pear in the Black Book as three knights' -fees and one-fifth. Being com-
piled after the disgrace of Odo of Bayeux, the record is useful as shewing
how the estates were dispersed, which are entered under his name in
Domesday Book. These are some of the entries : —
Nam. i
3ULINGB.
Yoiriis.
ACBBS
Knights'-Fkes.
(In Black Book.)
St. Augustine's
. 145
8
15
Archbishop and Priory
. 335
3
84i
Bishop of Kochester
56
3
8
St. Martin's .
24
132
—
Newington Priory .
7
2
—
(Hamo) Crevequer .
43
3
21J
Helto (De Eos)
7
34
Maminot . . . .
28
39
The Bishop of Rochester retained 45i sulings out of the 66, and gave
the rest to the monks of St. Andrew at Rochester. Cotton MSS. Vesp,
A. 32, 69.
VI.] The Domesday Survey. 147
These sub-tenants of manors retained for themselves the
demesne lands, and in Kent let out the rest in gavelkind
to the viUanij and in an inferior kind of socage to the
hordarii and eotarii: from the average size of the holdings
the viUani were often called "tenants of carucates" {cam-
caii)y and the lower classes of freemen " tenants of yard-
lands" {virgaU\ and the like. Thus, as has been said
before, the whole county might be regarded as divided into
free tenements and socage tenements, or demesnes and
tenants' land, the former of which was ex vi termini not
gavelkind either then or later.
In the first class of freemen*, owing definite socage
service, were 6,597 persons, the original " men of gavel-
kind,'' to whom the well-known words of Hallam may be
applied, " they are the root of a noble plant, the free socage
tenants or yeomanry, whose independence has stamped
with pecidiar features both our constitution and our na-
tional character *." • Midd.
To these tenants in socage we may add the burgesses, 227.
or tenants in "urban socage," whose numbers we cannot
determine with accuracy. Sandwich is omitted, and Dover
was at that time in ruins. In Eochester only 5, and in
Fordwich 6, are mentioned, being the burgesses who paid
" gavel" to the King. There were two classes of burgesses,
the one of free burgage tenants, the other of immigrants
' Some coDfiision has before now arisen from a neglect of the fact that
these vtUani were free socage tenants, and not serfs of the demesne.
I'or instance, "In Domesday Survey the class villani compose 6,697 per-
sons,' the servi 1,148, and the bord^uii'3,118, a total of 10,863 persons in
& servile condition^ for the bordarii were but one degree only more inde-
pendent than the villani. One of two conclusions only remains to be
^dopte^y either that in respect to Kent at least the Survey was erroneously
^Hanpoeed, or that shortly after its compilation the Kentish men were
Emancipated from their feudal restrictions." — {Canterbury in the Olden
3%M, p. 13.)
l2
148 The Tenures of Kent [chap
free and servile from manors outside the walls, to which
these settlers were still supposed to belong. Sir H. Ellis
reckons up 661 burgesses mentioned in the Survey of Kent.
It will be seen later that some of the burgesses even pos-
sessed allodial land, free from any service and any seignory
except that of the Bang *.
There were also a few socage tenants or ceorls, 44 in
number, who held manors or large portions of manors on
terms of far greater freedom than the ordinary yeomen.
In the reign of Edward the Confessor much of the marsh
land was held by this class, entries of this sort being fre-
quent, " eleven socmen held this land (Orlestone manor),"
" a certain socman held this land of King Edward," and
the like. It may be remembered that a ceorl, according to
the ancient English law, who acquired five hides of land
of his own, became a lesser thane or gentleman ; and it is
reasonable to suppose that these socmen of whom we are
speaking were men who had acquired freehold land of
their own on better terms than any * villanus' dependent
on a lord, but not sufficient to elevate them to the rank
of a lesser thane or ^ dreng.'
The next class, the free husbandmen of the demesne,
numbered 3,118 (bordarii). Below them were 364 cottagers,
hardly better than tenants at will. These two classes were
gradually absorbed among the free gavelkind tenants, in
• The remarks of Lingard on this point are not in accordance with later
and better authorities. *' The number of freemen in Kent amounted to
2,424, of villeins to 6,837, of bordars to 3,512. The burghers were 1,991 ;
of these the greater part were only a privileged kind of slaves. Taking
them only at 1.000, the number of freemen to that of slaves will be 4,415,
to 11,849."— (^w^., i. 372.)
If this were correct there would have been more copyhold in Kent than
in any other county; in fact, however, the slaves, even including the
semi-servile cottagers, hardly exceeded one-eleventh of the whole po-
pulation.
VI.]
The Domesday Survey.
149
some cases, as we have seen, on payment of a fine to the
lord for the privilege. Below the cottagers ranked the
1,148 serfs, found for the most part on the estates of
the Church.
A few other persons are mentioned, as four knights,
three thanes, twenty-four homines (lesser thanes), four
* Frenchmen,' who bring the male adult population up to
12,188, excluding the burgesses omitted for various rea-
sons ', the members of the ecclesiastical corporations, cer-
tain "menservants and maidservants," e.g. in Ash by
Wrotham, and a few lesser thanes not included in the list
given below.
We could not expect to find any Kentish names among
the tenants in chief, between whom the county was appor-
tioned. But many English names appear in the second
class of military tenants, probably those of the old owners
of the estate under the eleven great thanes of the pre-
ceding reigns.
There is no evidence that any of the jfree tenants in
socage were dispossessed of their holdings, except indeed
ihose socmanni of the highest class, who may have been sup-
j)osed to have resisted the invaders.
Probably the yeomen and the labourers were too insigni-
^cant to demand the special attention of the Conqueror,
Undertenants
212
Villani ....
. 6697
Bordarii ....
. 8118
Burgesses ....
661
Cotarii ....
304
Socmen ....
44
Serfs .....
1148
Miscellaneous . . . .
31
Sir H. Ellis, Introd. to Domesday Book.
12,188
I50
The Tenures of Kent
[chap.
after he had confirmed their ancient privileges and customs
to them by treaty with the Kentish leaders ; the seignory
over them and the right to their services were transferred
with the land to the new lord of each manor.
The inhabited parts of the county were divided into
1,144 sulings. Of these 38^ were ancient demesne, and
the Church 562. It appears from Henshall's Summary
Tables, compiled from the Survey of Kent, that the com-
missioners declared that there were 3,012 ploughs used in
all the manors, viz. 680 on the demesne lands, and 2,332
on the socage tenements. There were often many more
ploughs upon a manor than the arable land would properly
support ^
There were then the lands of 680 ploughs free demesne
land at the date of the Survey to 2,332 held by the vUlani
and hordarii; in other words, about one-third of the in-
habited lands of the county were then out of gavelkind,
being held of the Crown either in ^^ ancient knight-ser-
vice," or in "ancient francalmoigne." Besides the de-
mesnes, the manors themselves, with all their appurtenances
K We may take the hundred of Stroud as a specimen of the proportion
of demesne to socage land.
Paeish. Sulings.
Cabuoates
Cabfoates
Cabuoa
IN Demesne.
in Socage.
of AKA1
Hailing .
2i
3
6
7
Cookstone
2
2
5
6
Hennis .
i
1
—
1
Chalk .
3
2
5
7
Beccles .
i
i
i
i
Denton .
i
1
1
2
Higham .
6
3
6i
12
Cliff .. .
3}
IJ
H
6
Cliff
i
i
—
—
Cowling .
H
2
\
li
Cowling .
i
—
—
i
Frindsbury
7
5
11
15
VI.] The Domesday Survey. 1 5 1
properly belonging to the seignory, were held out of the
tenure of gavelkind. Muoh of the land vfrhioh vfras then
uncultivated was gradually granted out in socage, and
therefore is partible in descent ; much, again, has remained
as * waste of the manor,' woodland, or demesnes of manors
newly created and granted in knight-service ; all such is
descendible, if capable of identification, to the eldest son
alone. In the succeeding chapters the various lawsuits
and inquisitions followed by verdicts of juries impanelled
to decide the tenure, will be adduced to prove in the par-
ticular instances the general rule that what was "free
tenement" at the date of Domesday Book is now de-
scendible at common law to the eldest son alone.
CHAPTER Vn.
Tenure in Burgage.
Burgage Tenure. — The customs of the Saxon towns. — The Tenure still of
importance. — ^Boroughs of different kinds. — Kural boroughs in Kent —
Borsholders. — General and special customs of Burgage. — Connection of
Burgage and (Gavelkind. — Borough-English. — Its origin. — Places where
it prevails. — True explanation of Borough-English. — Inancientboroughs.
— In copyholds. — Traces of it in the Kentish Custumal. — ^The custom
of Merchetum. — Its real meaning. — Its extent. — Three classes of free-
holders in the ancient boroughs of Kent. — ^Exclusion of the half-blood
in Gavelkind and Burgage Tenements. — Exchanges of Burgage lands
under the Enclosure Act of 8 and 9 Vict., c. 118. — Exchanges of Gavel-
kind land under the same Act. — Inconveniences of Borough-English.—
Customs of various boroughs. — The Isle of Portland. — The Fee of
Arundel. — Summary.
In close connection with the subject of gavelkind is that
of burgage, or town-socage, which preserves the customs of
the Saxon towns, as the other preserves the customs of thq
8axon husbandmen.
Before defining the tenure, we may say a word or two on
the condition of the ancient boroughs immediately before
the Conquest.
In many places the municipal system derived from the
Romans had been preserved through all changes unhurt
The corporation of the borough or burg might hold land as
the common property of the burgesses: their tenure in
general was socage or gafol-cund, and rents and services
were due to the king or other lord from the corporation
and from individual burgesses. They might also hold land
by a superior title as allodium^ paying nothing to any lord,
but subject only to the king's jurisdiction. In this way
the burgesses of Canterbury and Dover are recorded in
yn.] Tenufe in Burgage. 153
Domesday Book to have owned some free land, and some
gavelkind land in and round the bounds of their cities.
The law recognised and encouraged the boroughs : " spe-
cial privileges as to inheritance were frequently enjoyed ;"
the member of a guild became noble by three trading
voyages.
The whole borough belonged in theory of law to the
king or some great thane, to whom a quit-rent was due
from the guilds and the individual tenants. Their position
has been compared to that of copyholders in modem times.
Their tenure, free though restricted, was less irksome than
that of the small rural landowner in the townships or
manors of the thanes.
It was very early discovered to be for the mutual in-
terest of the lord and the burgesses, that the separate rents
and services should be changed into one perpetual rent
issuing from the whole borough. This process was after-
wards called " affirming the borough," or letting it to fee-
ilurm in burgage. This had been done sometimes before
tlie Conquest, as at Huntingdon*, and prevailed every- •Domesd.,
'Mfhere after that time. The lord of the borough, after
ismich a confirmation or new creation of a burgage tenure,
zio longer held it in his demesne; the borough, like an
ojsrdinary socage tenant, owed him fealty, rent, and cus-
fc«:>mary services, and for the rest might manage its own
iB^i^Eairs. -The only inconvenience which balanced these ad-
^9^ vantages was a liability to be " tallaged " or taxed at the
lc:^Td's discretion, in the same manner as the cottagers on
IfcJLfi demesnes, a tyrannous custom which lasted till fer
i^^to the thirteenth century.
The country districts were everywhere divided into
^"ythings, which may at first have meant the lands of ten
^^^ fomilies, but which soon became a mere local division.
154 TJie Tenures of Kent. [chap.
Each tything in a measure governed itself. The members
acted as police, and were mutual bail for each other in
the system known as * frank-pledge/ Their chief was the
tything-man, or, as he was also called, the head-borough,
or bors-holder.
The word Bors-holder^ or borough-elder, has nothing to
do with the ancient boroughs, burghs, or fortified places
of which we have been speaking. The word horough (froln
horh^ a pledge) is the Kentish name for districts elsewhere
called tythings.
• vol. L " The office of the bors-holder or ty thing-man," said Hasted*, " was
^^^' to determine the smaller disputes between neighbours, and such
trespasses as belonged to their farms, the greater matters being
reserved for the hxmdred courts. Besides this, Bang Alfred or-
dained that every natural inhabitant, or Englishman bom, should
live in some hundred or tything, that would be bound for his ap-
pearance, to answer the law : but he that could not find such
surety should abide the severity of the law, and if such offender
happened to make his escape, then all that hundred or borough
incurred a mulct or fine to be imposed by the king."
But this statement, according to later and more esteemed
authorities, is incorrect in several ways. In the first place
the bors-holder was never a magistrate in any way, but
a petty constable, as now, wherever the office is preserved.
The leet, or view of frank-pledge, is the old hundred-
court, instituted " to bring justice to every man's door."
Its jurisdiction was often limited to the area of particular
honours or manors, that the lord might have the profits of
the court. Its criminal jurisdiction was almost taken away
by Magna Charta, but it retained the duty of " viewing
the frank-pledges," i.e. the freeholders within its juris-
diction, the men of the " borough," which it exercised, it
is said, as late as 10 Henry VI. in Cornwall. Its other
vn.] Tenure in Burgage. 155
objects were the preservation of the peace, and the pun-
ishment of minute offences; serious matters were dealt
with in the County Court. Courts-leet practically do
nothing now but appoint the constable, or, as he is called
in Kent,' the bars-holder.
Alfred did not set up the tything-system over England ;
it grew up gradually between the time of Canute and the
Nofman Conquest, "and the Normans completed what
the Danes had begun."
The members of a tything were perpetual bail for each
other. When a crime was committed, the tything had to
dear themselves from any participation in the crime, or
escape of the criminal ; and if they could not exculpate
themselves, and if the malefactor's estate was insufficient
for the penalty, then the others were compelled to make
the deficiency good. But it is incorrect to say that the
society was always responsible for offences committed by
its individual members.
It was the custom upon gavelkind land, "that the
tenants in general were not compelled to attend the
summons of the justices in eyre, but were represented
^y the horS'holder and four tenants of gavelkind in the
l>oxough,'' except in the towns where twelve were bound
to attends
Having now distinguished clearly between ancient
^>oxoughs in the usual sense, and the rural boroughs into
'^liioh Kent is divided', we may return to burgage
t^iiure.
It is defined as a kind of town-socage, where the King
^ The diyision of Kent into boroughs becomes important in any search
fcn^ old cases respecting the tenure of particular pieces of land in the
c^^^uity. The name of the borough is often given instead of that of
ihe manor or parish.
156 The Tenures of Kent [chap.
or other person is lord of an ancient borough, in which the
tenements are held by a certain rent from the whole body
of burgesses.
Most of the ancient boroughs were taken by the Crown
at the time of the Conquest : their names are recorded in
• 40 Liber the Exchequer *. Some few, however, were held by lords
^ ' spiritual and temporal, who claimed the same rights of
taxation by tallage at their discretion, as the Crown in the
boroughs of the King's demesne.
The tenure could only exist in ancient boroughs, and
this is still the law : —
" In an upland town, which is neither city nor borough, the
custom of gavel-kind, or borough-English, cannot be alleged.
But these are customs which may be in cities or boroughs : also if
lands be within a manor, fee, or seignory, the same by the custom
of that manor, fee, or seignory may be of the nature of gayelkind, *
t Co. Utt. or borough-English f."
110 b.
That is, the tenure of burgage is confined to ancient
boroughs, and the tenure of gavelkind to Kent, though
there may be local customs of the same nature in other
manors. But the customs of burgage cannot be alleged in
a town which is not an ancient borough. This was set-
tled in the reign of Edward II., when a plea was dis-
allowed, that all the tenements within a particular town
were partible, and the tenements in dispute were within
t Hii. 16. that town %,
Rtlpre. The law on this point is well declared in the Case
of May and Bannister v. Street^. This was shortly as
Bcr. 53.
§Cro.
EliB.120. follows.
The Prior of Merton was seised of a messuage in the
Archbishop's ancient borough of Southwark. In the reign
of Henry VIII. both the borough and the messuage in it
came separately into the hands of the King.
vn.] Tenure in Burgage, 157
He gave the messuage, together with divers lands in Essex
and Middlesex^ by letters patent, to one J. S. in fee, to be
held of the Crown in free burgage by fealty, in lieu of all
other services.
Queen Mary gave the borough to the Mayor and Cor-
poration of London, and afterwards the tenant died in-
testate and without heirs. The question arose, whether
his real property escheated to the Crown or to the then
Lords of the borough of South wark.
It was held that the Crown was entitled, the tenure all
along having been ordinary socage; the words of the
letters patent, " in libero burgagio," were rejected as void
from the beginning, for the lands outside the borough could
not be given by the King to hold in burgage. Neither
would the Court recognise two separate tenures for the
messuage and for these lands, when the King had only
mentioned one. " Therefore of necessity it was a tenure
in socage of the Crown."
The tenures of burgage and gavelkind are essentially
local ; they cannot be created out of the ancient boroughs
axid the bounds of Kent; nor can any customs, whether
borough-English, partition in descent, or anything else,
}>^ newly imposed upon land by any royal grant, "For
dtastoms receiving their perfection from the continuance
o:^ time, come not within the compass of the King's pre-
ro^tive*.'^ • coke's
It would be as reasonable to think that ancient demesne ^i^^,^
<>oiiId be created at this day by the like authority (i.e. that ^^^' ^^'
'Vands can now be impressed with the qualities only to be
gained by having been Crown-land at the Conquest), as
to think that these local tenures can be transplanted.
Yet the possibility of such an artificial creation of
tenures has been maintained upon a forced construction
158 The Tenures of Kent [chap.
of the Enclosure Act of 8 and 9 Vict. c. 118, §§. 94, 147,
by which it was provided that lands, exchanged under the
powers of the Act, shall each take the tenure of the other,
and be clothed with the same uses, trusts, intents and
purposes, and be subject to the same conditions, charges,
and incumbrances, to which the other lands were subject
before the exchange. A case was put by the Master of
the Eolls ^ of two owners of large estates, the one in Kent,
the other in Middlesex, and he supposed that each might
possess a small plot of ground in the centre of the other's
land, a plot of great value to the owner of the surrounding
property, but worth nothing to any one else. It is evi-
dent that an exchange under the Act would be a material
benefit, and it is also evident that it would be conyenient
for each to hold all his land by one tenure. But if the
exchange necessitated transferring the tenure, customs,
and nature of each piece of land to the other, the Kentish
estate might gain a piece of common socage, and the
Middlesex estate an inconvenient piece of gavelkind.
" If the powers of the Commissioners extended to the exchange
of tenures, the greatest inconveniences would occur : such inocula-
• Minet v. tions of tenure would be most objectionable *."
Iceman,
The writer has also known a case where land in Cumber-
land was exchanged for gavelkind land in Kent, and where
the same claim was put forward, viz. that the land in
Cumberland had been summarily imbued with all the
qualities of ancient gavelkind. Of course, the claim
shewed an ignorance of what gavelkind really is ; it was
evidently regarded as a mere custom, which it was hoped
could be transplanted.
Such inoculations are, however, not merely inconvenient,
but impossible. Burgage, gavelkind, and ancient demesne,
^ In Minet v. Zeman, L. J., New Series, 24, Ch. 547.
vn.] Tenure in Burgage. 159
are tenures which derive their qualities not from persons,
but from the land; these qualities are inherent in the
particular piece of ground. As was said by Ch, J. Moun-
tague of gavelkind given out in knight-service, " the
custom remains, for it runs with the land and is by reason
of it." And the same was said by Shelley, J. in Be Begg-
hroohi?s Case^ 26 Hen. VIII. 4.
There are some limits even to the power of an Act of
Parliament. A tenure or a custom, which only exists
because from time immemorial it has grown in a par-
ticular spot, can be destroyed, but not removed, and cer-
tainly no imitation of it would be created in another place
by implication from the wording of a clause in an En-
closure Act.
Freehold tenements in burgage, gavelkind, and ancient
demesne, are all held in socage, modified variously by local
customs. Each party to such an exchange under the Act,
as has been described, will continue to hold by his old
tenure (socage), but by a diflferent variety of it.
The same fallacy of imagining that the varieties of
socage are something quite distinct from the common
tenure, the genus of which they are the species^ was in-
volved in a claim made in Hougham v. SandgSj 6 L. J.
Chy. 67.
In this case the heirs to some gavelkind land had con-
c^mrred iH its sale, but they insisted that the fund re-
CKMained impressed with the character of real property,
id having been produced in part by a sale of gavelkind
id, a proportional part of it ought to be considered as
l^^aring the character of gavelkind^ and therefore that such
t>»Pt should follow the customary mode of descent to all
*^e males equally.
This claim was properly rejected as fanciful ; the cus-
i6o The Tenures of Kent [chap.
ternary qualities were local and inherent in' the land, by
that time in another ownership; if the fund descended
as real property, it would follow the roles of descent in
common socage, not of the local varieties of the general .
tenure.
It was said above Hiat inoculations of tenure by means
of the Enclosure Act would be highly inconvenient in
many instances; but this would not be quite a sufficient
argument against the practice. In many other instances
it would be of the highest convenience, if it were only pos-
sible according to the general law of tenures. A case is
given in the Appendix from the Second Report of the Beal
Property Commissioners, where a most important sale was
upset, and the greatest loss sustained, by finding that
a small plot of land in the middle of an estate was held
according to the custom of borough-English, the customary
heir being still an infant ; and the same sort of thing has
frequently occurred in Kent with gavelkind lands. These
inconveniences could be promptly remedied by shifting the
obnoxious custom to some other piece of land under the
Enclosure Act, if the doctrine laid down in 3Iinet v. Leman
were incorrect.
The most important places (in Kent) where burgage
tenure has existed from ancient times, are Canterbury and
Eochester.
Until A.D. 1234 Canterbury was part of the toyal de-
mesne, governed by the King's bailiffs, who accounted for
the rents due from individual citizens to him, and for other
profits. But in 18 Hen. III. the city was granted in fee-
farm to the citizens for a fixed annual rent, and from that
time the tenure was free burgage.
Before this time the six aldermanries of the city had
been held by serjeanty of the Crown as freeholds of in-
vn.] Tenure in Burgage. i6i
heritance, and when the tenure was converted into burg-
age they were held in like manner of the " commonalty
of Canterbury," until they were bought up by the city.
But all the messuages and tenements in Canterbury
were not anciently held in socage. We are told in Domes-
day Book, that Kalf de Columbers held eighty acres of the
aUadial land of the burgesses, and in another place that he
held thirty-three acres of the lands of the Corporation, be-
sides their forty-five *^ manses," or plots of ground, which
paid gavelkind rents. In another place we read of " twenty-
four acres of the allodium of the burgesses ^"
In a charter, granting a parcel of land without the walls
"between Queningate and Burgate" to the monks of'
Christ Church, these words occur : —
*' And I will that the monks hold that land altogether free, as I
and my ancestors have done^ and answer for it to no lord ^."
And in the twelfth century two messuages in the city
were granted by the hereditary Alderman of Eidingato
"Ward to St. Laurence's Hospital in free alms, by the de-
scription of "those two messuages which are situated in
that book-land (i.e. thane-land as opposed to gavelkind)
for which I answer to no lord." These passages shew that
8ome parts of Canterbury have not been gavelkind from
time immemorial, and this is also the conclusion of Somner,
who says : —
**I have often much wondered with myself whence it should
come to pass^ that divers of our Canterbury houses and ground at
this day pay no quit-rent at all, which others in the same place,
though holden in free burgage, are known to do. But considering
afterwards with myself, that bookland often occurs in landbooks
• Archives of St. Augustine's, quoted by Somner, p. 122.
* Somner, from the Archives of the CathedraL
M
1 62 The Tenures of Kent. [chap.
[title-deeds] of the place in the Saxons' time, I at length con-
cluded, at least conceived, such houses and grounds to be the
remains of our ancient bocland, which seemeth to be still surviving
in them, as if holden in allodio, plena jure, without all manner of
chargeable service, and no other probably than part of those
eighty acres of land in Canterbury's Survey in Domesday Book
thus expressed : — * Habet etiam quater viginti acras terrse super
hsec quas tenebant Burgenses in Allodio de Rege/ ''
The absence of quit-rents upon particular lands through-
out Kent is a most useful piece of evidence that the tenure
was never gavelkind, for all ancient socage in Kent ifas
liable to gavel, i.e. rents, or services since commuted for
payments in money.
The city of Eochester was also in the King^s hands at
the Conquest, and the citizens paid their gavel or tribute
separately to the provost or bailiflf. But in the reiga of
Henry I. it was leased for tvs^enty pounds yearly to the
citizens during the King's will, and in 12 Hen. II. it was
finally granted to them in fee-farm to hold by burgage
tenure.
The customs of burgage are both numerous and various
in different places. The most important body of them is
" the Custom of London" which is confirmed by a special
statute. The most important single custom is that of
borough-English, especially to persons enquiring into the
law of gavelkind. A short account of the origin and
extent of this custom will not be out of place here.
Borough-English, or the custom of the English towns, is
so called in opposition to the law of descent prevailing in
towns settled by the Normans. Thus the town of Not-
tingham was divided into the English borough to the east,
and the French borough to the west: in the one, real
property descended to the youngest son, by a custom of
vn.] Tenure in Burgage. 163
hurgh'Engloyes^ or borough-English ; iu the other, to the
eldest, by what they called burgh-Fran^oyes^ i.e. the law
introduced after the Conquest.
The custom of borough-English prevails in several cities
and ancient boroughs, and districts of smaller or larger
extent adjoining to them, in different parts of the kingdom.
The land is held in socage, but according to custom it
descends to the youngest son, in exclusion of all the other
children of the person dying seised. In some places, this
peculiar rule of descent is confined to the case of children ;
in others, the custom extends to brothers, and other male
collaterals. " The custom of borough-English also governs
the descent of copyhold land in various manors **."
Several conjectures have been made as to the origin of
borough-English. Some have traced it to the Celts ; Black-
stone claimed it for the Tartars; and many more have
derived it from the barbarous old custom of Merchetum^
known, it is said, to the feudal laws of other countries,
but not proved to have existed in England in any par-
ticularly gross form. Merehetum^ in England, was a fine
paid (in general) by a villein on the marriage of his
daughter, but it is often used in the sense of money paid
to commute the lord's theoretical rights over the wives of
YsiA servile tenants. Probably any form of argument would
have seemed good to those who wished to exact a fine
from a serf, but in reality the custom of merchetum was
not so bad as it has been described*. The custom of • 3 Mod.
borough-English is not found particukrly in places where ik^*
merchetum was used, but principally in the king's ancient 1
boroughs, as we have seen. i
A few sentences about this Droit de Marquette^ or mer-
• Third Real Property Report, p. 8.
m2
164 The Tenures of Kent [chap.
chetuniy will shew at once how common and how harmless
it was in its English form. It was a customary payment
made by villeins on the marriage of their daughters, &c.,
and depended on the theory that the lord of the manor
had a right to the services of all persons bom on his land,
and ought to be recompensed for the loss of their possible
services. It could not be required of a free man o^ suchj
♦ Co. litt. i.e. unless he held tenements in villeinage *.
Bract'iL A uoticc, howevcr, in the register of the Abbey of Burg,
in the Cottonian collection, shews that sometimes it was
exacted from tenants in socage: "Marchetum est quod
Sokemanni et Nativi debent solvere pro filiabus deploratis
sive corruptis." The fine in this case paid by tenants in
socage is probably of a different origin to that paid by
the serfs, though a common name had come to be applied
to both.
In the pleas of the King's Court, temp. Hen. III., it is
noted that " M. held his land by villein-services, viz. by
the service of paying 18^. yearly, and a fine (ntercJietum)
for the marriage of his daughter or sister at the discretion
of the Abbot of Abingdon."
Trin. 18 Edw. I. Coram B^ge, r. 12, it is said "T. de R.
is the villein of one Folliot, wherefore the latter can tallage
(tax) him high or low {de alto et basso) and he must pay
a fine of merchetum for his flesh and blood," i. e. for the
marriage of his daughters.
The same fine was paid in the manor of Aulton, by
Southampton, by any villein on the marriage of his
t u .Toh. daughter, or the sale of his horse f .
Not to multiply examples at length, the merchetum was
paid for daughters in several Welsh counties (it is said
that the word merchetum is Celtic), in Eccles and Gres-
senhalo (Norfolk), Morton, Thurgarton, and Eempton
rot. I, 85.
Til.] Tenure in Burgage. 165
in Nottinghamshire, in Shrewsbury, and many other
places.
It is curious that in Nottingham, where borough-English
was the custom of the ^^ English town '," this custom of
merchetum was also prevalent. It is tolerably clear, how-
ever, that the one was not derived from the other.
We shall therefore dismiss the idea that descent in
borough-English has anything to do with these marriage-
fines paid by certain serfs. For the true explanation of its
origin we must remember the state of the inferior orders
of society at the time of the Conquest. Borough-English
obtains both in freehold burgage, and in copyhold, cus-
tomary freehold, &c. The reason for its presence in free
boroughs is given by Glanvil*, and Litt.f, viz. " this • lib. vu.
custom stands with some certain reason, because that the ^ 5/211.
youngest son, if he lack father and mother, because of his
younger age, may least of all his brethren help himself,"
and therefore the policy of the law "prudently directed
the descent of the real estate, generally little more than the
father'* s house^ where it was most wanted J." This prudent tRobinson.
regulation was tempered, in order to meet all cases, with ^^°
the free power of testamentary dispositioo, so that when
the reason for its application did not exist, the custom
had no need of being applied. This custom in burgage
freeholds was not altered at the Norman Conquest (pro-
bably because the Norman barons, as a rule, did not live
in towns), and has remained unaltered to our own time.
In the lands held by serfs of the demesne at the will of
the lord, who gradually emerged into the light of freedom
as copyholders, it is easy to imagine how the old traditions
' The distinctioxi between the Burgh-Engloyes and the Burgh-Frangoyes
the east and west portions of Nottingham, was, it is said, kept up as late
a8A.D. 1713.
1 66 The Tenures of Kent. [cEA?«
of the law were cherished and acted upon, while the lords
would naturally be indiflferent to the practices of the serfs,
until it was too late to change what had become the custom
of the manor.
Where the real property consisted, as a rule, only of
a cottage and a slip of ground, it would probably be given
to the youngest son ; where it was more valuable, a custom
of partible descent would with equal propriety prevail.
A curious exemplification of this is noticed in evidence
• Rep. I. given to the Eeal Property Commissioners *, where it was
Mr. Ham- Said that there are several manors near London, where
Lideace. 1* 18 stiU the custom ^^ for the land to descend to the
youngest, if it is under a partible value, say £5 ; but if
it is worth more, it is parted amongst all the sons."
Another cause tended to perpetuate these customs. It
was always the merciful policy of the law to allow freedom
to any slave who could prove that he had lived in
a borough, paying his proper dues, for a year ; a provision
which would evidently keep alive among the rural villeins
the habit of using the old law, still living in the free
boroughs. Thus, when the serf had been at last en-
franchised, it was found that the old usages had been
preserved, although (as was natural) in many cases they
had become altered, and, as it were, distorted from the
likeness of the original free tenure. In this way we may
account both for the existence of copyhold customs, similar
to those of burgage and gavelkind, and for their special
varieties in different parts of the kingdom ^,
K Robinson (Appendix) explains the existence of borough-English in
copyholds thus : ** In copyhold manors the demesnes were generally di-
vided among the tenants in very small parcels, (as they still remain to
this day,) and were holden on arbitrary fines, large rents, and hard ser-
vices: insomuch that these estates at that time were little more bene-
yn.]
Tenure in Burgage.
167
There is now no diflference between the law of borough-
English in copyholds and in freeholds^, except that any
yariation from the general rule of descent to the youngest
son must be specially pleaded.
Besides the custom of borough-English proper *, or the
ficial than leases at rack-rents ; and the tenants themselves being men of
the meanest sort and condition, below the hopes of breeding their sons
gentlemen, the elder part of their family, at a proper age, either applied
themselTes to husbandry, or in those manors, where all the demesnes were
not already parcelled out, might obtain estates on the same hard terms ;
and the small advantnge of the father's tenement was left to descend to
the youngest son, the only, though a mean support of his infancy."
* Reeve v. MaUtery Cro. Car. 411.
* Besides the ancient boroughs which are the proper home of borough-
Englishy as Gloucester, Nottingham, &c., it remains in the copyholds of
various manors.
^ It appears by communications from the stewards, that in the follow-
ing manors lands are descendible after the manor of borough-English : —
StJohn of Jerusalem .
Middlesex.
Sutton Court . . . .
yy
Weston Grimshall, in Albury .
Surrey.
Colley, in Reigate
>>
Sutton, near Wokiug .
>9
Little Bookham
if
Wotton
II
Abinger . . . .
11
Paddington
tt
Paddington Pembroke
11
GrimshaU Towerhill .
t9
Grimshall Netley
99
Shere Vachery and Cranley . •
l>
Shere Eborum
If
Dunsford [in Wandsworth] 4
99
Compton Westbury .
II
Brockham
}|
BoxstedHiU .
Essex.
Battle, freeholds and copyholds in
Sussex.
Robertsbridge .
7f
Somersham, and the copyholds in its
soke or liberty
Huntiugdonshire.
168 The Tenures of Kent
descent of all the real estate to the youngest son, there
are many special customs of the same nature in different
parts of England, to which in common parlance the general
name is applied, in the same way as every custom •£ par-
tition is loosely called gavelkind.
Some of these special customs are collected in the Ap-
pendix to Eobinson's " Gavelkind." Such are those which
limit the general custom, e.g. (1.) in a Cornish manor that
lands held in fee simple shall descend to the youngest,
lands in fee tail to the eldest son.
(2.) **In our books," says Coke, "there is a special
kind of borough-English, as it shall descend to the younger
son, if he be not of the half-blood ; and if he be, then to
• Co^ikt. the eldest son. (32 Edw. III. Age 81 ♦.)"
(3.) In certain places the custom is restrained to lands
of which the father died seised. And this custom is taken
t Robina. very strictly. In the case of Fane v. Barr j", this usage
existed on certain copyhold land; a surrender was made
to the use of A. and his heirs ; A. died before admittance,
/ and the ddest son inherited the land, the custom requiring
seisin anoHymg seised, before it could operate. **The
Court said it would have been different had this land beer
found to be of the custom of borough-English proper, o
gavelkind." Subsequent cases have confirmed the nil
Alconbury . • . . . Huntingdonshire.
"Weston .... „
{Note hy Mr, Wilson, editor o^ Third Edition ofRohimon*s " Gavelkin
To this list we may add the manors of
South Burstead . . Essex.
140 b.
129.
Middleburgh .
Part of Brighton
Town-hiU
Sussex
Hants.
And several others mentioned in the text, where special varietief
custom exist.
170 The Tenures of Kent. [cjhap.
Wandsworth, Down, Barnes, Eichmond"', the customary
descent is extended to females as well as males^ lineal
• Co. utt. and collateral. This agrees with the saying of Coke ♦,
viz. " In the manor of B. in Berkshire is such a custom,
that if a man have divers daughters and no son, and dies,
the eldest daughter shall only inherit ; and if he have no
daughters, but sisters, the eldest sister by the custom shall
inherit, and sometimes the youngest^ P
It was once said that the custom of borough*English
prevailed over the copyholds in the parish of EJham in
Kent, "So that the youngest son should inherit all the
lands and tenements which his father had within the
borough," &c. But Hasted, who enquired into the matter,
t Vol. ^iL could not find any of these lands, and saysf, *^0n the
contrary, the custom is to give the whole estate to
the eldest son, who pays to the younger ones their pro-
portions of it, as valued by the homage of the manor,
in money."
There are several reasons for the rarity of borough-
English in Kent. It exists on some copyhold lands ^,
but there are few copyholds in the county, and they are
usually dealt with as nearly as possible by the law of
gavelkind.
In Canterbury and Kochester, before their free burgage
tenure had been created, all that was anciently socage was
gavelkind, and was dealt with by the light of the Kentish
customs. The two tenures of burgage and gavelkind differ
hardly at all in nature, and their principal customs differ
" And in Southwell (Notts.) and Much Hadham (Herefordshire). The
list was collected by Mr. Sawkins in the last century, and printed bj
Mr. Wilson in the third edition of Robinson's treatise.
° Comp. Newton v. Shafto, 1 Lev. 162, 1 Sid. 267.
** Freston v. Jervis, 1 Vern. 325.
vil] Tenure in Burgage. 171
nothing in construction, but only in the quantity of land
taken by the heir ^.
A careful consideration of a curious passage in the
Custumal of Kent will shew that these customs are
closely connected, and that in practice by the law of
Kent the youngest son of a burgess would anciently in-
herit his father's tenement. The practice described in the
following passages has for some time been obsolete, but
its history throws some light on the real nature both of
borongh-English and gavelkind.
The words of the Custumal are these ^ : —
''If any tenant in gayelkind die, having inherited gayelkind
lands and tenements, let all his sons divide that heritage equally.
And if there is no male heir, let the partition be made among the
females in the same way as among brothers. And let the Mea-
iuage^ also be divided among them, but the Astre* shall belong to
the youngest son (the others receiving an equivalent in money)
•
» ClemenUy. Scudamore. Salk. 243; Raym. 1,024.
« '<Si ascnn tenant en gauylekende murt, et scit inherite de terres
e de tenement in gauylekende, que tonz ses fitz partent eel heritage per
onele porcionn. £t si nul heir madle ne seit, la particion feit entre les
females sicome entre les freres. Et la messuage ^ seit autreci entre eux
departi mes le astre •» demorra al pune, et la value de ceo livre a chescun
des parceners de eel heritage a xl. pes de eel astre, si le tenement le pent
•ojG&ir. £t donkz le eyne eit la primere election, e les autres apres per
d^ree."
' Meuuage. When opposed to domus, as here, messuage includes house,
orchard, garden, and curtilage. (Co. litt. 5 a, 56 a, b ; contra, as to the
garden, Keilw. 67, and other authorities cited in Harg., n. to Co. litt. 5, a.)
80 that the residue of the tenement, after giving forty feet roimd the fire-
place to the youngest, may often have been considerable.
* Aitre, the hearth-place, a word often used, as here, to denote the
hoose. Astre and MeMuage are opposed, as domus and messuagium. An
heir set up in a house of his own in his father's lifetime is called Here*
Astrartus by Bracton, ii. 85 ; Co. litt. 8 b ; Ziher Assisarum, 23. Lam-
barde notices the use of astre in this sense in Shropshire, (Pcramb. 563).
172 The Tenures of Kent. [chap.
and as far as forty feet round that Astre (hearth), if the size of the
heritage will allow it.
" And then * let the eldest have the first choice of the portions,
and the others afterwards in their order."
In other words the youngest parcener kept the principal
house of the homestead, forty feet on every side of the
chief fire-place. While this was the customary mode of
procedure there could be no need of borough-English, for
the youngest would by it get all the real property likely
to be owned by a burgess in Canterbury or Eoohester.
And in the same way '^ the small advantage of the father's
cottege" was secured to the son who would probably need
it most.
There is a parallel to this system of division in the
Common Law, where female parceners inherit properly
which may not be divided. Such were castles used for
• Bract. iL the defence of the realm *, homage, and fealty, estovers
mi 166 a. appendant to ^ freehold, pensions or corodies uncertain
granted to one and his heirs, common of piscary (un-
certain), common of turbary, common of pasture sans
nombrej &c.^
In all these cases the eldest co-parcener took the indi-
visible inheritance, making a contribution in money to the
others, as the youngest co-parcener in gavelkind made in
respect of his borough-English privilege.
* " And then let the eldest,*' &c., i. e. and not till then. " The
eldest son or daughter had by the custom a pre-eminence of election, and
the youngest son or daughter a preferment in the partition. But at this
day there is no regard of either in making the partition, only considera-
tion is had that the parts be equal and indifferent." — {Lamharde, Peramb.y
562.)
"* Lord Huntingdon v. Lord Mountjoy, Co. litt., 164 b; Godb. 17 1
and 307.
vn.] Tenure in Burgage. 1 73
But houses and castles not used in the defence of the
reakn, were divided room by room among female co-par-
ceners: and in the same way all houses or cottages in-
cluded in the homestead, in the case of a gavelkind de-
scenty- except always the chief dwelling-house^ were divided
equally foot by foot ; though even in this case the youngest
obtained a sort of pre-eminence, in being allowed for his
ahare the principal sitting-room where the fire-place was^
making contribution as before.
" In like manner of (other) houses which shall be found within
such a homestead, let them be divided equally among the heirs^
scU. foot by foot, if need be, except the * cover of the hearth' (the
principal fire-place) which remains to the youngest, as was said
before ; nevertheless let the youngest make reasonable amends to
Ills co-parceners for their share, by the award of good men */'
Another similarity between the two tenures lies in their
ancient usages respecting brothers of the half-blood, who
in neither case could succeed to each other. This was
specially noticed as an inconvenience of borough-English
in evidence before the Eeal Property Commissioners ♦, * 1 ^p
when it was said " that if the youngest son by a second or
Subsequent wife should take, the eldest son by a former
•^e would afterwards be excluded from the succession;
^hich seems to be a great anomaly altogether." And
-^binsont has collected several cases to shew that thistBk.i.
c. 6.
^^^^s the rule in gavelkind, although it is evident by con-
sidering the lateness of the introduction of the exclusion
* *' EnBement do mesons que seront trouves en tieus messuages, seient
d.epartje entre les heires per ouele porcioun, ceo est a savoir, per peies sil
e«^ mistier, sauve le covert del Astro, que remeynt al pune, ou al punee,
si <^me il est avan dist, issi que nequedont que le puDO face rcsonable
g^ a 888 parceners de la partye que a cux appent, per agard (award) de
l>one gentz."
1 74 The Tenures of Kent. [chap.
of the half-blood, that it could not have been the usage
before the Conquest, either in boroughs or gavelkind
lands ^. A woman, haying issue by two husbands, died
seised of lands near Canterbury, which were parted among
her sons ; one of them died, and his sisters of the whole
blood were allowed to take in exclusion of his brother
of the half-blood *.
In another case, a man married twice, haying issue by
the first wife a son, and by the second another son and
a daughter : the sons divided the inheritance, and on the
death of the younger his sister claimed as of the whole
blood to exclude the elder, which was allowed'. And
•B.Kane.m Bishop V. Herherdefield * ^ where a man had issue a son
' and a daughter by his first wife, and a son by his second,
and died, and the sons divided his land, on the death of
the elder son the daughter took his share instead of the
tRob.Ga7. brother!.
These examples will suffice to shew the similarity of the
usage in both tenures. They are now both included in the
operation of the New Inheritance Act, 3 and 4 WilL IV.
c. 106, so that there is now no exclusion of the half-blood,
and no immediate descent between brothers. Similar cases
to those last cited would therefore be decided in a different -
manner at the present day, unless where there is a special-
custom, which requires a strict construction.
y The exclusion of the half-blood, now abolished as founded upon im —
perfect reasoning and contrary to natural justice, was peculiar to the lavi^
of England. It was founded on the feudal maxim that the heir must b^
of the blood of the purchaser. It was not known in its full extent to ou^i
early authorities, Bracton, Fleta, Fortescue, &c., and its chief rigour i»-
comparatively a late invention. (Steph. Blackst. i. 415 — 421.)
• Kingston v. Culhilly It, Kane., 55 Hen. III. 6; Mich. 11 Hen. VXIi:!!^
B. E. ; Bedyll v. Growths,
• Some V. Fresinghet/, It. Kane., 6 Edw. II. 18.
TH.] Tenure in Burgage. 1 75
A custom of borough-English, like those of gavelkind,
most have existed from time immemorial. "Novel ville
ne poet aver custome ♦.*' • 21 Hen.
VI S6
Unity of possession by the superior lord will not ex-
tinguish these customs f. Neither will a change of tenure t ^ Hen.
destroy them, e.g. the manor of Sherfield was converted
into a serjeanty by Edw. II., but the land retained its
quality of descending to the youngest^.
A rent-service from borough-English or gavelkind lands
will descend to the eldest son of the lord, to whose de-
mesnes it is appendant, but will follow the customary
coarse in any other hands ^
If a fair or market be held on borough-English or gavel-
kind land, all profits which come &om the soil, as stallage,
pickage, &c., follow the custom, but all other profits go to
the heir at common law ^.
Lands in an ancient borough, which are shewn by
IDomesday Book to have been held allodially by the bur-
gesses, as at Canterbury in the instances quoted above,
-will not be subject to any socage customs. Such are the
I^mds of Dover Priory, which were granted to the monks
iB francalmoigne long before the Conquest.
It has often been proposed to do away with the borough-
^E^lish descents, both of burgage and copyhold lands, and
*Iiere is no doubt that many inconveniences result from
*^em, while the reason for their introduction in favour
^^ the tradesmen in ancient boroughs, &c., is no longer
*Pl>licable. Among these inconveniences are principally
vl-3 that Uhe youngest son is often a minor when the
^ Moulin V. JDalUson, 3 Cro. 484 ; De Begglrook's Case, 26 Hen. VIII. 4 ;
^"^ ^en. IV. 9 ; 11 Hen. VII. 25 ; Keilw. 80.
JlandaU v. Jenkins^ 1 Mod. 96 ; Stokes v. Terrier, 3 Keb. 292.
* Siddey v. Wellhome, Moor, 474 ; Rob. 99.
176 The Tenures of Kent [chap.
father dies : during the minority the land is unalien-
able and often mismanaged ; in case also of a trust estate
in borough-English lands, a reference to the Court of
Chancery is often rendered necessary.' (2.) It is diffi-
cult to ascertain the limits of the land covered by the
custom, and (3.) it is sometimes difficult to prove the
extent of the custom clearly enough to satisfy a pur-
chaser. (4.) There is a great deal of ignorance, and a great
likelihood of forgetfulness, of what lands are subject to
it; so that *in many cases, quite contrary to the inten-
tion, an estate settled as an entire estate has descended
to diflferent persons, the freehold to the eldest son, and
the copyholds to the customary heir in borough-English*.'
(5.) From minority, addition to the number of trustees
or cestuts que trustent on the same property, and uncer-
tainty respecting boundaries, entries on court rolls, &c.,
property on which a custom of borough-English is found,
whether freehold or copyhold, is often rendered very diffi-
cult to sell, or manage in any way '.
• First Real Prop. Eep. 286.
^ The following instance of its inconvenience was given by J. Hum
plireys, Esq., before the Real Property Commissioners: — '*An instancc^^
came within my knowledge in the course of practice, and is now generallji^^
known among the profession : a client of mine bought the Town-hiU estatesf^
in Hampshire, from the trustees, which Middleton's will directed to b- ^
sold. Afterwards, in searching an old box for some missing title-deeds
they found a revocation of this will ; but the eldest son, being an honoxu^^
able man, said that he would confirm the estate as heir-at-law. T l i ^ "'
purchase was completed, and all went on well till we came to the middEU
of the estate, when we found some twenty or thirty acres of borougl^^P
English, most important from their situation ; the youngest son was onEI-
twelve years of age ; there was nothing to be done ; it was locked u^^fl
Bub-sales by the purchaser were thrown back upon his hands, with oth -^
mischief of every description. These instances are more or less frequein:::^
as the custom or similar ones occur. In some counties, such as Worcest^^^-^
shire, the tenures are numerous, and the intermixture of lands held un^^^
them often minute." — {Ist Hep., App. 254.)
Hl] Tamn m Bmrpapt. i
t 4
There are odier cprtnuff in sDoknl bcsmt^i^ besidM
the "genenl tsaatam^ d barpag^EngfrA ; t^ier ja« not^
howeTcr, noticed by tbe lav vitiunit beozig speedaHy
pleaded*. •<
Sadi waa ilie esBfam of devisng all tbe lands and!L»^
tenementa of windi tlie owner bad fbe fee simple. This
waa of ibe IngKAgt imporianee bodi in bm^iage and gapel*
kind bmda^ befiore fbe WHls Act d 32 Hen. YIDL was
pawHTcl The Gostom extfSHlfd to rents, if the j bad existed
firom time immemodal, and eren to newly created rents-
cbazge'. These cases estaUished the rule that the rent
18 part of the land and iasoes oat of the land : '^ The rent
18 of Ibe same nature as fbe land, and the bowels of it\^'
In the same way, where there was a custom to dcTise
ancient-demesne lands, it was allowed to devise a rent-
cbai^e, lor it was as mnch ancient-demesne and devisable
am the land out of which it was drawn \
m
In London, Oanterbory, and some other boroughs, the
csitisens had a custom of devising their freeholds within
*ie lib^-ties of the city. The wives of citizens of Canter-
^'Qiy enjoyed the same privileges. By such customs a man
***^^t devise to his wife, or in mortmain, in opposition
*^ the ordinary rules of law.
In some boroughs the widow has all the tenements of
*^^^ husband instead of her third; in others she takes
^ ii[ioiety during her life and widowhood, as in gavelkind.
It would be impossible to mention all the special ciis-
Vt^tiEis usual in burgage tenements. The customs of London
^^ to trade, wives, widows, children, guardians, &o., are
* Jtandaa v. Jenkins, 1 Mod. 96, 2 Ley. 87, 3 Eeb. 214; Stoka
^' Teenier, 3 Keb. 292, 1 Mod. 112.
^ Z(mclCi Case, 22 Assis. 78.
' BaniM v. WrittU, 3 Keb. 216. *
N
viL c 37.
178 The Tenures of Kent [chap. vir.
both intricate and numerous. These last rest not on usage
only, but have been confirmed by statute.
The rule, that an infant in gavelkind is of full age at
fifteen, has often been assigned as a reason for abolishing
the tenure : but in many ancient boroughs there were fax
• Robin- ' more unreasonable customs ♦.' We are told by the year-
ns, "book 11 Hen. IV. 29, that a custom of some boroughs
allowed the infant to aliene as soon as he could measure
a yard of cloth, and that the judges construed it very
strictly. In others, the infant was of full age when he
t Bract, could tell moucy, measure cloth, and the like f . But
these extravagant customs were disallowed in Hereford
6 Edw. III., in Gloucester 13 Edw. III., and in Ipswich
19 Edw. II., for a custom must be reasonable.
In 53 Hen. III., the jury on an inquisition post mortem
found that *^ the heir of the said John Gervase was of full
age on the day of his hirth^ according to the use and custom,
of the town of Bridport (Dorset) ^"
Here we may leave the law of burgage tenements, of
which much remains unmentioned : it is necessary to study
it to some extent, before the law relating to gavelkind
can be understood, the customs of the two tenures bein/
closely connected together in their origin and in the:
modern interpretation, as we have seen.
^ Esch. Roll, 53 Hen. III. 16.
CHAPTEE VIII.
Ancient Demesne.
Aoooont of the tenure. — Costomary Freeholders. — Terra Regis of Kent. — Manors
of ATLESFORD, PULLBNS, DARTFORD.^Chat of Gouge v. Woodin,-^
Descent of Bai\S'Wsn\oQ.— WILMINGTON, FAFERSHAM, MILTON, MIL-
8TBD, NEWJNGTON.^CoMTt of Ancient Demesne,— BOKINGFOLD, GIL-
LINOHdM.'^The Weald of Kent.— Customs and Services of Tenants in the
Weald.
Akcient demesne is a variety of socage tenure found in
those manors which are recorded in Domesday Book to
have been in the hands of Edward the Confessor and
William the Conqueror. For the existence of the tenure
it is necessary that the manor should be exactly described
in Domesday Book under the heading Terra Regis \
* It must be entered as Terra Regis. In the Year-book, 40 Edw. III.
is, there is a case where the tenure was disallowed, the manor being
•entered as Terra JEpiscopi. So in Saunders v. Jrelsh, 1 Salk. 57, the
^Dianor of Otterbury was decided not to be ancient dumesno. Edward the
Confessor had aliened it, and the Domesday commissioners described it
*»« private property.
^The sabordinate manor of HalgcU, or Hawh y, in the parish of Sutton-
^^^2one, in Kent, has been called ancient demesne, but wrongly. It is
O^ rationed in Domesday Book to have been " reeve-land," i.e. held by the
•^^siiff in virtue of his office, and to have remain< d in the king's occupa-
^<^:xi afterwards. The jury affirmed that it had been part of the manor of
^^i^xtford, which is ancient demesne, but when the Survey was compiled
^^ "^as in the hands of Odo of Bayeux, then Earl of Kent. (Hasted, ii.
^^a, 364.)
^^^3ale describes the old manner of consulting Domesday Book, Common
'^"•^"^r, c. 5, note, "Issue taken whether the manor of Long Hope, in
^■^OTicestershire, were ancient demesne : and Domesday Book was brought
•^^tio court by a certiorari out of Chancery directed to the treasurer and
^^^^jnberlain of the Exchequer, and sent by mittimus into the Common
"\^^,»» It appeared that Hope was ancient demesne, but nothing was
n2
i8o The Tenures of Kent [chap.
These manors were ia ancient times managed for the
king by his bailiffs, who retained for him the demesnes,
and granted out the rest in freeholds to the socage tenants
who paid rent in money, labour, or kind. ** The King*'
(said Coke) ^^had houses of husbandry on his demesnes,
and stocks for the provision of his house, and his tenants
there by their tenure ought to manure, till, reap com, &c.,
on the land, and therefore they ought to haye many
• 2 Inst, privileges *."
Trac'ts, Wc must remember that this tenure was always a spe-
225 • V *
cies of socage, but the manors themselves were not held
in socage either by the successive kings or their grantees,
having in general been held by services of chivaliy, until
the abolition of feudal tenures.
It follows, therefore, that the manors themselves and.
the demesne lands with the rents-service, adyowsons^
and other appurtenances, were not held in ancient d^^
mesne, but were "frank-fee," or freehold at common
t F. N. B. law t ^.
Gat/seT It follows that the waste lands of the manor, which arr^
ii?^rp.' in fact part of the demesnes left uncultivated for the com^-
venience of the freehold tenants requiring common -^f
pasture, are also "frank-fee." The wastes and commc^n.
said of Long Hope, and the tenure was not allowed. See also Oriffim- '^•
Palmer , 1 Brownl. 43; Newton v. Shaftoe, 2 Keb. 158; Crawther y. C^^^'
Jieldy 1 Salk. 364; Hodges v. HodgeSy 1 Lev. 106; Scrivens on Cop3?^^^
581.
** " In ejectment defendant pleaded, that the lands were parcel of -fc-'fc^
manor of Bray, and that the manor was ancient demesne {antiquum dor^J^^ ^
nicum) held of the Crown. And this was held naught, per totam curi^^^^' '
for hereby it must be understood the lands in question are part of t:^^^
demesnes, and supposing it to be a * manor of ancient demesne/ yet tM^ *
manor and its demesnes are impleadable at common law and not in tb^^
lord's court, for then the lord would be judge in his own cause." — {£ai^^
V. JFichy 1 Salk. 56, and the cases there cited.)
I
in.] Ancient Dememe. 1 8 1
uids are of the same tenure as the demesnes, and this is
Lot altered by a subsequent inclosure or " approvement."
In the same way it is held that the copyholds in such
aanora are not properly ancient demesne : being held at
he will of the lord, though according to the custom of
he manor, they are in the eye of the law part of the
lemesnes''*. •Bracton,
lib. IV. p.
These copyholders have often been classed erroneously 293; Fieta,
5} c* 5.
mong the true tenants in ancient demesne, who are all
reeholders by an ancient tenure of socage t- The limits t Burton,
f ancient demesne were therefore not enlarged by the i,(Sr" '
onversion of feudal tenures into socage in 12 Car. II.
The copyholders have very frequently the same customs,
mi not the same privileges as the tenants in ancient
lemesne. They are suitors in the court baron, the latter
>eing in reality judges. The most important privileges of
he latter were the exemption from serving on juries, from
Mijrment of toll and tax " for all things concerning their
lusbandry," and the right to try all suits concerning their
land in the court of ancient demesne, " that they might
not be called from the plough to any foreign litigation, as
sit Westminster, or elsewhere."
These actions were determined by a writ peculiar to this
6aure, called the "small writ of right close" (parvum
^^ve de recto clauso) ; the tenants had also their peculiar
rit of monstraverunt^ if more than the ancient and cus-
•Hoary services were demanded by the lord. A fine or
^oovery levied or suffered in the superior courts at West-
ixister changed the tenure to " frank-fee," until reversed
Y a writ of disceit brought by the lord in the court of
i^cient demesne. This last peculiarity caused great in-
• Brittle v. Dale, 1 Salk. 186, 1 Ld. Raym. 45; Smith v. Frampton,
^ Xey. 406, Co. Copyh. § 14.
1 82 The Tenures of Kent. [chap.
conveniences, the title to the land having been unmarket-
able until the fine or recovery was reversed, or the seignory
released by the lord. The writ of disceit was abolished
by the Fines and Recoveries Act; "the substitution of
a simple deed renders such mistakes impossible for the
future," and has deprived the tenure of most of its former
importance ^. Most of the other privileges are now value-
less or obsolete.
The tenants in ancient demesne are freeholders, although
they require admission by the lord of the manor. This
incident of their tenure has caused them to be called
customary freeholders, and has led many distinguished
writers to speak of them as merely " an exalted species of
• Co. copyholders," or in the language of Coke •, " copyholders
5^a!^' of frank-tenure ®," as opposed to the ordinary " oopy-
holders of base tenure."
They must not be confounded with the customary free^
holders of the north of England, whose estate seems t(^^
have been that of mere tenants-at-will with a tenant right^^
not enforceable at law until late in the sixteenth century
After much dispute and many contrary decisions it appearassas
to be settled that these are in reality copyholders, anc
have been treated as such in the later legislation '.
<* <'Iii manors which arc ancient demesne, whether belonging at tli^
day to the king or the subject, the court baron has the only and excluai^
original jurisdiction (subject to an appeal to the Common Pleas by
of false judgment) in all actions relating to lands held of the manor Ttjj
an ancient tenure of socage." (Burton, Compend. 1031; 4 lost. 2^^^ i
1 Bac. Abridg. 172; 3 Real Prop. Rep. 13; 2 Scriv. on Copyh. 6S^ 'M;
Williams on Real Prop. 118; 3 & 4 Will. IV. c. 74, § 4, 5, 6.)
* Blackst. 2 Comm. 100. They are the privileged villeins of Bract "tx^Ji
{villani privilegiatt), lib. iv. c. 28; Britton, 66; Fitz. Nat. Brev. 13, X-^/
Hale, Comm. Law, c. 5, n. ; 2 Inst. 235.
' These customary estates are found in Cornwall, Somerset, Devon-
shire, e.g. by the custom of Lidford Castle. {Feriman's CoMe, 5 Co. S4 /
vin.] Ancient Demesne. 183
There are many various customs in these freeholds of
ancient demesne, as descent to the youngest son, or to the
youngest or eldest sister, or daughter, or to all the males
equally as in gavelkind*. But these customs are unim- •,^J»*^*-
portant in our present enquuy, the ancient demesne lands
in Kent being gavelkind, and not different from any other
lands held by an ancient tenure of socage.
The manors and demesnes, &c., were never so held,
and consequently can neither be ancient demesne nor
gavelkind.
Hasted t appears to draw a distinction between "thejj**^^
socage tenures of gavelkind and ancient demesne," which
may lead to confusion if it is not remembered, that in the
four Kentish manors of ancient demesne the limits of the
two tenures are identical. He seems to have translated
Bracton's account of ancient demesne word for word, which
however being general, and applicable to the whole of
England, does not quite suit the peculiar circumstances
of this county.
The ancient demesne of Kent, described in Domesday
Book as Terra Begis^ is comprised in the four manors of
Aylesford, Dartford, Faversham, and Milton (by Sitting-
bourne).
1. Aylesford ^
The limits of the ancient demesne were thus traced by
Co. litt. 59, b.) In Northamptonshire, Co. Copyh. § 32, but chiefly in
*t]ie north of England, viz. ** in North Yorkshire, that part of Lancashire
cudled Over-sands, the south-west portions of Durham and Northumber-
landy and over the whole of Gumberland." (3 Heal Prop. Kep. 13 ; Scrivcn
On Copyh. c. 19 ; Lewin on Trusts, 188, 466.) See the judgment of Lord
I:ilenborough in Doe d. Reay v. Huntingdm, 4 East. 271 \ Williams, Real
^rop. 118, note, and cases there cited.
% Described thus in Domesday Book : ** In Larkfield Hundred the King
liolds Aylesford. It pays land-tax for one suling. Land for flftcen
184 The Tenures of Kent. [chap.
• voL vr. Hasted ♦ : " That part of the parish which lies on the
north-east side of the river Medway, in which is the town
and church of Aylesford, is in the manor of Aylesford and
is ancient demesne, the jurisdiction of which extends like-
wise over the borough of Eugmerhill, in the parishes of
Yalding, Hunton, Horsmonden, and Brenchley." It ap-
pears that the demesnes^ of the manor are situated partly
in the parish of Aylesford, and partly in Yalding. The
manor was never held in socage during the continuance
of the feudal system, and these demesnes have therefore
never been gavelkind.
We are told that the manor was held by military ser-
vice in the ninth year of King John by Osbert Gifford, soon
after which time it escheated to the Crown. In 14 Hen.
III. it was granted on the same termis to Sir Bichard de
Grey and his heirs. The inquisition post mortem of WilL de
tCaLGe- Dustou, 55 Hcu. III. IQt, gives further details as to the
n€«l. 149. I ' o
escheat of the manor, and the settlement of a rent-chai^
in frank-marriage on the said William de Duston, grand-
father of Isabella de Grey, tenant of the rent-charge.
In 31 Edw. I. the king claimed the manor by a writ of
right, but the jury found for Sir Henry de Grey, the
jHagt. iv. tenant J'.
gistRoff. '^ In 9 Edw. III. Eichard de Grey of Codnor died hold-
ing this manor of the king in capite^ by the service of one
§ Hast. iv. knight's-fee§."
It is recorded in the Book of Aid, compiled in 20 Edw.
ploughs. In demesne there are three ploughlands. Forty viUani with
five hordarii (husbandmen) hold five. There are eight slaves," &c.
^ From the letters patent 5th April, 1 and 2 Ph. and M., by which
the manor was granted to Sir R. Southwell and his heirs, to hold by
military service, after Wyatt's rebellion, cited by Hasted.
* Pleas of Crown in Canterbury, 21 Edw. I., 3, 7, 21.
Tin.] Ancient Demesne. 1 8 5
m., that John de Qrej of Codnor held the manor as one
knight's-fee. This book is the standard or canon by which
the military or socage nature of each estate in the county
was determined in the following reigns. The advowson
was retained at first by the Crown, then granted by
Henry I. to the priory of Eochester, and finally given by
Henry VIII. to the Dean and Chapter of his newly
founded cathedral of Rochester^. La*^''""*
The reputed manor of Fullens is part of the ancient
demesne of Aylesford. It was the subject of the suit of
Hvmphry v. Bathurst^ Lutw. 740, 754. The plea having
been omitted that the land in dispute was of the nature
and tenure of gavelkind, the court would not take notice
of the i&ci^ ^^ nothing being pleaded or found in the record
concerning the custom ^.''
2. Dartford.
According to Domesday Book this manor contained two
and a half sulings of arable land. There has always been
a large amount of waste land in this manor, e.g. Dartford
Heath and the Brent, which whether enclosed and built
over or not, must be of the same tenure as the demesnes
of the manor, i.e. held by a tenure superior to that of
gavelkind, and not converted into free and common socage
till the reign of Charles II.
After being held by the Barons De St. Paul, and
resumed by the Crown as an escheat (among the terrce
Nctmannorum confiscated when Normandy was lost in the
reign of John), the manor of Dartford was held by succes-
sive kings, and by them from time to time alienated and
resumed. The tenure was always military, and the de-
^ Bobinson, c. 4, init. There is a very full account of the circum-
stances leading to this suit in some MS. memoranda by Hasted. (Add.
MSS. Brit. Mus. 5,512.)
1 86 The Tenures of Kent. [chap.
mesnes were never thought to be gavelkind. The free-
dom of the demesnes will be best shewn by the history
of the descent of the manor and its appurtenances. On the
death of Edmund, Earl of Woodstock, in 4 Edw. III.,
he was found by inquisition to have held by military
service in capite " the manor of Dartford and the rents
of assize of the tenants in Cransted, Combe, Cobham,
Chesilhurst, Dartford, Gilde, Stanhill, the ferry over the
Darent, tolls, fairs, a market, view of frankpledge, profits
•HastiL of courts ♦," &C.
The manor of Dartford, with which afterwards became
incorporated the manor of Dartford Priory in the same
parish, was granted with other lands and possessions of the
king in Dartford, by James I., to the Earl of Salisbury,
296.
fee to hold of the king as of his manor of East Greenwich-
by fealty only in free and common socage, and not wi capita
or by knight-service, paying a yearly rent. This grants
was confirmed by a private Act of Parliament in 4 Jac. I.
In 1699 these premises were conveyed to Thomas Gouge^
who died intestate in 1707, leaving three sons, Thomas^
Nicholas, and Edward. A dispute arose between them
to the descent of the manor, and its appurtenant rents of
assize arising from the gavelkind lands above mentioned^ — ^
lying within the manor of Dartford. The eldest sor
shewed that the estates had been held in capite by knight-
service from the first alienation by the Crown until the
reign of James I., and it was conceded by all parties that
neither of the two manors, now united, had been held iE
gavelkind before that reign.
It was, however, asserted by the two younger sons, thai
by the private act of 4 Jac. I. a socage tenure had beer
created, which from that time caused the manor and allX^
its appurtenances to descend according to the custom o:C
1
Tin.] Ancient Demesne. 187
the tenure of gavelkind, ^^ as other lands of socage tenure
had usually done *." • Hait u.
299
The eldest brother insisting that the lands could not
become gavelkind in modern times, the dispute wa? for
a while appeased.
It is difficult to see how the claim of the younger
brothers could have been supported by any one who
understood the real nature of gavelkind land, which, ez vi
termini^ must have been held, or is presumed to have been
held, in an ancient tenure of socage from the date of the .
conquest of England. We have seen that a burgage tenure
cannot be created in modem times, and it is also evident
that land could never be rendered ancient demesne, which
was not so held from the beginning.
As to the royal grant creating a socage tenure before
12 Car. II. c. 24, the remarks of Lambarde t are worth f Pemmb.
remembering, viz. — ^^^
" Ancient knight's- fee is not of the nature of gavelkind. When
[ speak of socage and knight's-fee, I must always be understood
o mean a tenure long since and of ancient time continued^ and
tot now newly or lately created^ for so it may fall out otherwise
ban is already reported by me. As for example, if land anciently
lolden by knight-service come to the prince's hand, who after-
rard giveth the same out again to a common person to be holden
f his manor of East Greenwich in socage, I suppose that this
andj notwithstanding the altemtion of the tenure, remaineth
lescendible to the eldest son only as it was before ^*'
In the same way lands held by the military tenures of
:astleguard or escuage uncertain, might come to be held
n socage by the commutation of their service for a certain
Kioney payment. Yet such lands were never treated as
* Kirby Lee's Case, 1 Sid. 138; De Beggbrook's Case, 26 Hen.
vin. 4.
1 88 The Tenures of Kent. [chap-
gavelkind; and many military lands came to be held as
petty serjeanties, and were then decided to be held in
socage, but not to be gavelkind "*.
Another point to be considered is this. Some of the
property in dispute consisted of rents of assize, or rents-
service arising out of lands which were both gavelkind
and ancient demesne. Nothing is clearer than that ancient
rents of this kind are of tl\e same nature as the land, and
it appears to have been settled that a rent-charge recently
• 22 Lib, created out of such lands will follow the same rule*,
4 Edw.iii. although the earlier judges were slow in arriving at this
Hen. VIII. decision. Rents therefore reserved out of ancient demesne
^ or gavelkind will follow in descent the customs of those
tenures, unless as in the present case the rent-service is
part of a manor anciently held by a military or a spiritual
tenure. "For (says Robinson) though the tenancy be
of gavelkind nature, yet the rent-service, by which such
tenancy is holden, may well be descendible at the common
t Lamb, law t. Nor does there seem to have ever been a doubt
Peranu
548; concerning a rent reserved on a gift in tail, or lease for
38; 21 life or years of gavelkind lands, but as incident to the
11T22 reversion it shall follow the nature of the lands J." In
iq7*^ * ^11 other cases the rent follows the customary course
t Rob. L in descent, " being part of the profits and issuing out
of it°."
The rents of assize, therefore, while unsevered from the
seignory, descended in the same way as the manor and
the demesnes, and it was only necessary to discover
whether the act of 4 Jac. I. or of 12 Car. II. c. 24, could
possibly have created by implication a new tenure of
gavelkind.
On the death of Thomas, the eldest brother, the inherit-
" Dionysia Noel's Case, infra. ° Randall v. JenkinSy 3 Keb. 214.
ym.] Ancient Demesne. 189
ance descended to Nicholas, the second, as heir at common
law. His yonnger brother again claimed his share as
co-heir in gayelkind, and the matter was decided by an
action.
Nicholas Gbuge brought a special action for debt against
William Woodin, which was tried at bw in the King^s
Bench in Trinity term, 1734. The plaintiff's case was
that Thomas Gouge, his brother lately deceased, had de-
mised a capital mansion or messuage and several parcels
of land (parts of the manor of Dartford) to the defendant
for seventeen years, at a yearly rent. That on the death
of the said Thomas Gouge the reversion in fee had de-
scended to him as heir-at-law, being the next eldest
brother, the said Thomas having died intestate without
issue. He therefore claimed that reversion and the rent,
then two years in arrear. The defendant Woodin pleaded
simply that the manor and lands were of the nature and
tenure of gavelkind, and ought to descend and be divided
among the heirs male equally ; and that the reversion in
fee had in fact descended according to the custom of
gavelkind to Nicholas and Edward Gouge, the surviving
brothers, as co-heirs in gavelkind of Thomas. The case
was argued in Trinity term, and in the Michaelmas term
following the judges determined, (1.) That nothing c^)uld
alter the tenure of gavelkind lands, except an Act of Par-
liament passed expressly for that purpose. (2.) Tliat
nothing can render lands subject to the custom which are
shewn not to have been so subject originally. (3.) That
there was nothing in the act of 4 Jac. I. nor in the genorul
act of 12 Car. II. c. 24, which expressly altered the oourso
of descent of lands throughout England ; the fact therefore
that ttie military tenure had been changed to socage did
not alter the course of descent. (4.) They noticed also,
igo The Tenures of Kent. [chap,
that it seemed to be quite settled that lands originally
held by a military tenure are not subject to any gayelkkd
customs.
A verdict was therefore found for the plaintiff Gouge,
who thenceforth held the manor and its appurtenances as
• Hast. ii. sole hcir-at-law *.
299 • • • \
It is clear from this judgment that it makes no differ-
ence whether the land at any modern period be held by
military, spiritual, or socage tenures. A piece of land
• might be held by barony, or in francalmoigne, or in grand
serjeanty, or simple knight-service, and yet be of the
nature of gavelkind, if it had originally been held in that
species of ancient socage. On the other hand socage land
cannot become gavelkind in modem times, if it were ori-
ginally held by a tenure superior to socage, e.g. any of the
tenures just mentioned, whether military or spiritual
The lands in dispute in Gouge v. Woodin being parcel of
the manor of Dartford, i.e. part of the demesnes^ and the
rents-service being appendant to the seignory, were held
at common law, and had nothing to do with the tenure of
ancient demesne. Indeed, if they were ancient demesne
they must have been also gavelkind, and vice versd^ the
limits of these two ancient socage tenures being identical,
as we have already seen, in the Kentish manors of ancient
demesne.
The subordinate manor of Portbridge or Bicknors ap-
pears to have part of the demesne land of the superior
manor of Dartford. It was granted by Edward III. to his
newly-founded priory of Dartford, having in 20 Edw. HI.
been assessed with the other ancient military lands in
Kent with the aid levied on the knighthood of the Black
Prince. In the Book of Aid, which since then has formed
the official list of those lands, it is recorded to have been
vm.] Ancient Demesne. 191
one knight's-fee in tlie hands of sereral joint-tenants^
husbands it seems of co-heiresses^ The saper»>r lord was
Warren de Monte Canisio. or Montdtenae ^. • HMt. s.
The parish of WilmingtcHi is port of the ancient demesne
of Dartford. The manor of Wilmington^ or Grandisons^
appears to have alwajrs been gareOdnd. It was granted
by Henry Vlll. in his 35th year with other lands and
rents in the manor of Dartford, to Geoffirey Pole, to hold
m capite by knight-serrice ''. It appears from Hasted's
History j", to have been divided between co-heirs in gayel- fToLS.
kind, which was confirmed by the terms of a private Act
10 William III., authorizing the sale of this estate by
certain trustees appointed for that purpose.
The manor of Bowehill, or, as it was formerly called,
La Buehille, in the same parish, is also gavelkind, as ap-
pears from the inquisition j9o^^ mortem of Anselm de Gyse,
23 Edw. I. 52, recently published in the Calendarium
GenealofficumXj viz. " the jury also find that John, son of t p. 504.
the said Anselm, is his nearest heir, &c., but they find
that the manor of La Buehille is partible, and that all
the sons of the said Anselm are co-heirs of it"
3. Faversham.
This manor was part of the royal demesne as early as
the beginning of the ninth century. At the date of
Domesday Book it contained seven sulings of arable land,
which are also described as " seventeen ploughlands," of
which two were in demesne, and the rest in socage or
gavelkind. (The number of ploughs kept by the villeins
* Hale, Common Law, 312. ** Eyen in Kent if gavelkind lands oschoat
or come to the Crown by attainder or dissolution of monasteries^ and bo
granted to be bolden by knight-service or per haroniam, the customary
descent is not changed, neither can it be but by Act of Purliameuti for it
is a custom fixed to the land." — {Bohins. i. c. 5.)
192 The Tenures of Kent [chap.
and hordarii was twenty-four, which seems to be out of
all proportion to the other measurements). It was granted
in the reign of Stephen to the new Abbey of FaTenham
to hold by barony. On the dissolution of monasteries the
manor was resumed by the king, who released many of
his privileges to the inhabitants of the town by charter
37 Hen. VIII. The demesnes were granted by Henry VUl.
in his 31st year to Sir T. Cheney, to hold as the twentieth
part of one knight's-fee in capite by knight-service. The
boimds of the manor and ancient demesne are thus giTen
• voLvi by Hasted*: ^^The town and parish of Faversham, llie
t boroughs of Harty, Ore, Ewell, Selgrave, Oldgoldscheld,
Chetham, Brinnystone, Badlesmere, Oldeboud-island, Bode,
Graveney, Bourdfield, and the lands of Monkendane in the
parish of Monkton."
t Haat vL 4. Miltou (by Sittingboume) f .
The account of this manor in Domesday Book shews
that it was of importance even at that date^ The de-
mesnes were four sulings in extent, the tenants* portion no
less than twenty-four. At a much later period the de-
mesnes were estimated to contain 484 acres, but this cal-
culation does not include all the demesne-lands in the
hundred of Marden belonging to this manor. In the hun-
dred of Milton they extend into the parishes of Milton,
P '* In Midletune hundred King William holds Mideltune. It paid
tax for twenty-four sulings. Without these there are in demesne four
sulings, and there are three ploughs in the demesne. In this manor are
309 villeins and 74 hushandmen : they have 1 67 ploughlands. . . . There
is forest enough to pasture 220 swine. The tenants in the Weald paj
fifty shillings for horses and harness. In the manor are 10 slaves
Of this manor Hugh de Port holds eight sulings and a yoke (8 J), which
in the time of King Edward were with the rest held at a yearly rent
(i.e. in socage, or gavelkind), and there he has threi ploughs on his de-
mesne," &c.
vni.] Ancient Demesne. 193
Halstow, Newington, Minster, Bredgar, Stockbury, Tun-
stall, Milsted, Bapchild, and Sittingbourne.
The jurisdiction of the Court of Ancient Demesne held
for the hundred of Milton, extended over the eighteen
parishes within the hundred, and over all the Island of
Sheppy, except the manor of Harty, which is ancient de-
mesne of the royal manor of Faversham**. It also ex-
tended over the hundred of Marden *, containing within • Hwt vi.
its bounds the parishes of Marden, Goudhurst (in part),
and Staplehurst (in part).
The manor of Milsted aflPords an example of the free
tenure of the royal demesnes in the hands of a subject.
In 4 Edw. I. Thomas Abelyn died seised in fee of the
manor and one capital mansion, with one carucate and
a-half of land in Milsted, &c., held of the king in capite
by knight-service'. This one carucate and a-half is de-
scribed as consisting of 63 acres of land, 6 of wood, held
together with 40s. of quit-rents, and other tenements in
Morton and Elmsley.
The hundred of Marden lies within the Weald, and is
not specially described in Domesday Book, being then
mere forest-land. We must, however, except one portion
of the demesnes of Milton manor, which were situated in
Goudhurst parish, viz. the large manor of Bokinfold, with
its park, forest, and demesne lands t* This was not held t Hart. r.
in gavelkind like the rest of the hundred. This we learn 69.' ^"*
^ The manors of Newington (seven sulings), of Tong (two sulings),
of Tnnstall (three and a-half sulings), and of Murston, arc described
Beparatelj in Domesday Book. In some cases the land is mentioned to
hare been taken by the owners at that date *^ from the king's villeins.''
' ** Tenentor de domino Eege in capite per servicium unius foedi mi-
litis." Inqnis. post mortem T. Abelyn, 4 Edw. I. 21 ; N. Abelyn, 6 Edw.
I. 17 ; Isolda de Apperfield, 24 Edw. I. 46 ; Calend. Geneal., 234, 264,
521 ; Book of Aid levied in Kent, 20 Edw. III. ; Hast., vi. 107, 108.
194 The Tenures of Kent. [c^*
inter alia from an inquisition post mortem (lately pubUsha^I
taken on the death of Hamo de Crevequer, 47 Hen, IT^
33-. The jury found that the manor of Bokinfold i&
scended to the eldest son, the other tenements to oopalT
ceners according to the custom of gavelkind. The mano-
was soon afterwards granted in fee to Bartholomew d^
Badlesmere to hold of the Crown in socage, and not m
before by barony.
• 3 Lev. In the case of Smith v. Frampton'^^ it was pleaded tiui;
certain tenements held of the manor of Gillingham in thii
county, were ancient demesne. The manor of Gillinghan
is not described in Domesday Book as Terra Regis^ Iia?iii{
been held long before the Conquest by the Church o
Canterbury in francalmoigne, and at the Conquest hayiii]
been allotted to the archbishop as part of his barony. I
appears, however, by the Parliamentary Survey of th
royal manors in 1649, that four denns or districts in ih
t Hast iv. Weald were held in socage of this manor f. Of thea
Haydhurst in Marden parish, and Wincehurstden in Gtoui
J Hast, hurst, were ancient demesne %.
'It may be well here to say a few words concerning th
Weald or Wild of Kent. This was known in ancient tim(
§ Hast. i. as the forest of Anderida 8. Not much of it was unde
297; Som- , . .
ner, Rom. cultivation at the date of the Conquest, but it had bee
Robins. ' usual on granting a manor to the Church, or to a layma
c. a* "* in another part of Kent, to annex a grant of some portic
of this forest, for the feeding of droves of swine. Hem
■ ** Dicunt juratores quod Rob. de Crevequer filius Homonis de Cr
vequer junioris est propinquior heres ejus de praDdicto monerio •
Bogingefold pertinente ad baroniam pra?dictam, &c.
** Item dicunt quod M. de Crevequer . . . R. de Crevequer . . . H.
Crevequer filii pra^dicti Hamonis, et R. J. et T. filii Hamonis de Cre^
quer junioris sunt propinquiores hercdes praedicti Camonis qui ultii
obiit de toto residuo tenementi prajdicti." — {Calend. GeneaL^ 107.)
TOi.] Ancient Demesne. 195
nioh land was -called drove-laad, aud the tenants drove-
men *•. • Somn.
Kost of the special customs and privileges of the socage Co. iitt.
tenants in the Weald are obsolete or unimportant. The PeimbT
principal privilege was that no tithe of wood was payable
witfam its limits ; this has ceased to be of importance since
the Tithe (commutation Act, but the point was formerly
the occasion of frequent disputes ". Robinson notices an-
other custom peculiar to the Weald, that the lords should
hwre all the great timber-trees, and the freeholders in
gavdkind only the underwood, " or at most the oak, ash,
«nd beech under forty years' growth f :" and he cites t Hb. u.
■^eral early cases to prove the custom. But this right
of the lords was commuted for a small quit-rent as early
^ the reign of Richard II. ± X somn.
Another custom noticed by him is that of * land peerage^'* Ports. 112.
Py Which the tenants in the Weald claimed the soil of the
*^ways and the hedges.
An questions relating to the rights or services of these
^*^^iits, the common of pasture, right of pannage, &c.,
"^^re decided in a court called a Parrock^ held once a-year
^y the lord at some place within the Weald ' 8. * § Somn.
^ ^ Gav. 23.
^or the limits of the Weald, see Deame's History of the Weald
-^ent, introd. ; Hasted, i. introd. ; Somner, Rom. Ports.
.^ Shelford on Tithes, 128; Chichester y. Sheldon, 3 E. and Y. 1102;
*lV^rt, 674, 686 ; Co. Iitt. 116 a, note 15 ; Hasted i. 295, vii. 243. Dearne,
^^i., cites a treatise on the subject by Sir Roger Twisden, and Hasted
^ ^^gument in the CJommon Pleas shewing the reason of the exemption.
^^^1. MSS. 980, 304.) But Cranbrook in the centre of the Weald did
^^ exijoy the exemption. (Hast. vii. 111.)
^ •'The country of the Dens (a British word) runs along the edge of
^ 'Weald, forming a belt of forest round the cultivated country quite
^^^^pendent of the woods, which once lay between village and village." —
<^^mhle, Anglo- Sojsons in England, vol. ii. p. 483.) There were 32
V^Uie say 44) dens subject to the jurisdiction of the Court of Dens held
o2
196 The Tenures of Kent. [chap, vin^
There are frequent notices in the old books of the ser- ^
vices peculiar to tenants of gavelkind land in this district.
For instance, the king's villeins holding land there within
the manor of Milton paid ^^ money for horses and harness,
5O3. a-year." Others are mentioned to have paid " leave-
silver" or ^^ danger ^^ which was a payment for lea/e to
plough " between the autumnal equinox and Martinmas,"
when it was supposed that the lord's right of pasture
might be disturbed or endangered. Thus in the CoBtumals
of Halden, Teynham, and Charing, mention is made of the
half-mark usually paid as "leave-silver rent." Other
services mentioned in the Custumals were " swine-gavel,
scot-ale, and gavel-rafter," being quit-rents received in
• Somner, Ucu of payments in kind by tenants in the Weald ♦.
sorHait. Although a great part of the Weald was waste forest,
^*^^* and not cultivated for long afterwards, it must be re-
membered that a largo number of manors within its bounds
are described in Domesday Book, and were held at that
time either in francalmoigne or by service of chivalry,
in which cases the manor and demesnes were not of the
nature of socage or gavelkind. A few important places
which were held from the first in a tenure superior to
gavelkind are not described in the great Survey. Such,
for instance, was the manor of Tonbridge, extending over
all the district known as the Lowy of Tonbridge, being the
land for a league in every direction measured from Ton-
bridge Castle.
*o^
at Aldington in this county. Sir R. Twisden, cited by Mr. Kemblo
in the passage just quoted, has left in his journal a full account of the
nature of this Court of the Weald.
CHAPTER IX.
Tenure by Barony, — ^By Oastiegnard.
^Baronies spiritual and temporal. — ^Abbey of Fayersham. — Dover Castle. —
Varieties of Castleguard Tenure. — Chilham Castle. — Tonbridge Castle.
Bochester Castle. — Peculiar customs. — PerimwCi £«iw.*— Castleguard
rents. Manors of EASTJFELL, TIRLINQHAM,—Lenmrd v. Earl
of Sunex.-^COWDHAM, BRA8TED, HEVER, APPERFIELD,
CHEPSTED. — ^Disgavelled land. — Inquisitions ^o»^ mortem. — Tenure
of AdyowBons.
Babony was the highest tenure known to the law, with
<he exception of free alms or francalmoigno, where not
^ven fealty was due from the tenant.
Haying said that lands held by "ancient knight-service"
lave never been gavelkind, a fortiori we may lay down
iliat those originally held in barony, the highest kind of
Inight-service, are equally free.
Again it has been shewn above that much land in Kent
"was before the Conquest allodium or " thane-land,'' utterly
^>pposed in all its incidents to the nature of the socage or
^gavelkind held of the same lords. After the Conquest we
lave seen that this allodium was transferred to Norman
"■;eiiants in capite^ from whom feudal services were thence-
iA>rth due; but this transmutation of ownership did not
^v^hange the nature of the land, and in the hands of these
"C^nants in chief, or of the knights their under-tenants, the
:^&ee land remained as free, and in the hands of the socage
^Ci^enants the gavelkind remained as liable to fixed services,
«8 in the preceding times.
These tenants in capite were at first barons in all cases,
excepting in Kent the priors who obtained leave to keep
^lieir tenure of free alms. At first, therefore, there were
198 The Tenures of Kent [cha]^^*
in Kent barons of two kinds, the first including the Arch —
bishop, Bishop of Kochester, the Abbot of St Augustine'saiH
and the Abbot of Battle (as tenant of the manor of Wye)
the second included all the other tenants in capitehj militar]^^
service, of whom the most important was the king's hal^^
brother Odo, Earl of Kent and Bishop of Bayeux.
The first class, or the spiritual barons, were on tlie same
footing as the rest in respect of the military service due
from them to the Crown. They therefore sat in the king's
great council with the temporal barons: but it has been
observed that the Bishops sat in a double capacity as
military '^ tenants and as spiritual advisers or assessors to
the king ; the abbots sat only as tenants of land in capite.
It became necessary in later times to have a writ of
summons as well as land held in barony, before the tenant
in chief could sit in the council, which became the house
of peers. This led to a distinction between the greater
and lesser barons about the end of the reign of Henry
II., but at first all land held directly of the Crown -by
any military service was held per baroniam. It appears
from the Black Book of the Exchequer, a roll of military
tenants in chief compiled in the time of Henry II., that
the knights' -fees of the Archbishop of Canterbury were
84f in various counties, of the Abbot of St. Augustine's
15, and of the Bishop of Kochester 8 ^.
• Hody, Convocation, 126: "Kon sedemus hie cpiscopi, sed baroncs:
no8 baroncs et vos baroncs — pares hie sumus." Fitz-bcrb. Pass. Becket;
Matt. Paris, 7. As to the right of abbots, &c., to be barons without
holding lands in capite^ see Abbot of Leicester's Case, Hot. Pari. 25 Edw.
III. 2 ; Prior of Northampton's Case, 12 Edw. II. ; Prior of Bridlington's
Case, 14 Edw. II.; Prior of Canterbury's Case, 5 Henry IV.; Somner
Antiq. Cant 101; Modus tenendi Parliamentum^ 24; Prynnc, Register,
141 ; Dialog, de Scaccario.
^ Hcame, Lib. Nig, Scacc. ; Dart., Hist. Cant. Cathedral, 53 ; Madox,
IX.] Tenure hy Barony. — By Caatleguard. 199
We may shew the free-tenure of the manors, demesnes,
and appurtenances held by the spiritual and temporal
barons either by considering their condition in the hands
of the barons, or in those of the sub-tenants owing them
military service.
There were at first not more than ten barons in Kent,
excluding the Abbot of Ghent as an alien, but the number .
was soon increased. On the disgrace of Odo, then Earl of
Kent, four years after the completion of Domesday Book,
and the resumption of his estates by the Crown, nine new
baronies were created for the defence of Dover Castle.
In the reign of Stephen another barony was created out
of the ancient demesne of the Crown, scil. the Abbot of
Faversham was made a tenant "in chief et per haroniam^^
of no less than sixteen knights' -fees "^ *. * Co- ^^^
We will now confine our attention to the tenure of2inst.44.
Castleguard, with which nine new baronies above men-
tioned were more especially connected.
One hundred and seventy-one knights'-fees, in this
and other counties, were given by William I. to John de
^feiennes, the first Lord Warden, to distribute among other
l^arons for the defence of this castle. He chose thereupon
%he eight whose names follow, viz. William de Albrincis
^^r Avranches, Fulbert de Dover, William de Arsic,
Cjalfrid de Peverel, William Maminot, Eobert de Port,
^Ixch. 439. Some records estimate the Archbishop's knights*-fecs at
^Kixtj altogether. A claim was made npon him for nineteen more by
*^lie officers of the Exchequer, which he disowned.
• The abbots of Faversham, though barons, did not sit in Parliament
^^iter 18 Edw. II. Ko writ of summons was directed to anj of them
lifter that year, probably on account of their extreme poverty. (Hast. vi.
^27 ; Southouse, Hist. Fav. Cronicon Faversh. 71.)
The Mote in the island of Harty was a portion of one of these sixteen
Cces. It was the subject in dispute of the famous suit of Kyme and
Zawe V. Paramour^ Co. Entries, 182, described in a preceding chapter.
483.
200 The Tenures of Kent. [chap.
• Lamb. Hugh de Crevequer, and Adam Fitz- William *, each of
Per 153 •
Hwt. ix.' whom was bound by the tenure of the lands so givea to
maintain one hundred and twenty soldiers. These lands
were held in capite by barony, of the Lord Warden, and
afterwards of the king (in chief) as of his Castle of DoYa.
Besides these there was a considerable quantity hdd by
the tenure likewise of ward to this Castle ^"
There were in Kent three varieties of casUegoard,
viz. : —
* ^^. J, . I with uncertain castleguard service.
2. Kmght-servicej
3. Socage ; with certain castleguard rent-service.
All lands held in these tenures were free from the na-
ture of gavelkind, excepting of course the case of lands
originally gavelkind and subsequently held by semoe
of castleguard.
1 . In the first class may be ranged those manors whidi
the nine barons retained in their own hands. Each selected
one manor as the "head of his barony (caput haronia\^^ or
honour^ as the seignory over a cluster of manors was called*
Such, for example, was Chilham Castle, head of the barony
of Dover, Hasted, who had access to the court-rolls, give ^
several valuable extracts as to the tenure of the lands heV^
of this honour ''.
^ For lists of the manors and lands so held see Cotton. MSS., Ve»;^
A. 5, " Castelli Feodarium ;" Barrel, Hist. Dover Castle, ** Constabularia-
Feodary of Kent, in the Public Record Office; Lansdowne, MSS. 369,
• ''A court-lcct and court baron is held for the manor of Chilham, -*
which the several rents due from the dcnberries in the Weald are lik:^
wise collected, the tenants holding them in socage tenure. The mano^ -
and lands now held of the honour of Chilham by knight-service are t^^
manors of Huntingfield, Shillingheld, Kingston, Denton, Estnre, Hur^^
Luddenham, "Wetherlings, Northcourt, Colcbridge, Tappington, Dyvyn
Placy, Young, Much Hougham, Little Hougham, Godsland, Sibbersto^
and Muxton. The rovalty of it on the river Stour extends from Shalm^
dl] Tenure hy Barony, — By GasUeguard. 201
2. The superior lords gave most of their lands to military
mder-tenants, who took upon themselves the service due
3rom their superior lord for certain portions of the land,
)r who held by the service of guarding the lord's castle,
he lord undertaking all the service due to the king. In
dther case the tenure of the under-tenant was merely
i species of ordinary knight-service *. Thus Littleton • Co. utt.
jnrote : " Also divers tenants hold of their lords by knight- loe b.
leryice, and yet they hold not by escuage nor shall they
)ay escuage ; as they which hold of their lords by castle-
vard, i. e. to ward a tower f of the castle of their lord, t Hast.
>r a door or some other place of the castle J, upon reason- j j, -^
ible warning when their lords hear that the enemy will
»me," &c. The tenure was always certain, ^ as of a par-
acolar castle and a particular portion of it' §, but the § Hast.
jervices were essentially uncertain, or the tenure would
have become socage ||. Ter2i4.*'
In this second class were many manors held of the
idng's castle of Kochester, and other castles held by
piivate lords, as Tonbridge, Canterbury, and others K
3. In the third class were all those manors at first held
y military services of castleguard, which were afterwards
&ld by a payment of a fixed rent in money in lieu of all
^ bridge to the bounds of Godmersham parish." — {ITast. vii. 277.) ** At
^ o«nrt held for the manor of Ghilham the tenant of Laddenham is con-
*^tty presented by the jury for default of service, as being held of it
i^r the notion of one knight 's-fee, and he is always amerced at two
^liiigs, the payment of which is never withheld,'* — (vi. 389.)
1*01 the Castles of Kent vide Lambarde, Peramb. Introd ; Darrell, De
*<eWM Cantia, cited Hasted, xii. 64, and the other authorities above-
^^taoned. Of Tonbridge Castle Hasted writes : ** There were formerly
^e payments of castleguard to it, but they have been long since disused,
^^^ payments excepted which seem to be made for encroachments on
^ lord's waste."— (v. 219.)
Per. 154.
202 The Tenures of Kent. [chap.
services. This change was made in the lands owing service
to Dover Castle as early as the reign of Henry III. We
are told that Hubert de Burgh, then Lord Warden, obtained
of the king by petition, that all the tenants should thence-
forth pay a yearly rent in lieu of personal service. The
rent was fixed at a charge of ten shillings yearly for every
warder, which new rent was called from thenceforward
• Hart, castle- ward *. The same change took place in the manors
limb. ' held of Rochester Castle *.
There appears to have been a custom in both these
castles, that in default of payment the rent should be
doubled and trebled, &c. In the case of Dover Castle the
custom was ended by a private Act passed in 32 Hen.
VIII., which enacted (1.) that the castleguard rents
should be payable at the Exchequer, and not at Dover
* << Many estates in Kent, Surrey, and Essex are held of the casUe of
Bochester by the tenure of castleguard. Of these the manor of Swans-
combe is the principal, the owner of which, as well as the rest holding
their lands of this castle, had anciently the charge of it committed to
them, and owed particular services to the defence of it." — {Hast, iv. 73, 74.)
These servdces have been long since turned into annual rents of money.
The following is a list of the manors and lands (in Kent) which were
held by castleguard of this castle and now pay rents in lieu of it : —
*' Luddesdon.
llyarsh.
Delce, G.
Delce, L.
Addington.
Iforton.
Cobham Eastcourt.
Aldington Eastcourt.
Stockbury.
Hammill Court.
Farnborough Court.
Boughton Monchensic.
Midley.
L. Caldecott.
Goddington.
Padlesworth.
Bicknor.
Fraxingham.
Wootton.
Eccles.
North Court (part).
Borstable, G. and L.
Combes.
"Watringbury (part).'' — Hast,
413; Lamh, Per, 530.
:.] Tenure hy Barony. — By Castleguard, 203
latia as had been usual : and (2.) that in default of pay-
ent the lent in airear should be doubled and not farther
ultiplied.
But this did not apply to Eochester Castle, where the
istom is said to exist, that if the castleguard rent falls
tto arrear it is liable to be doubled on each return of the
de in the Medway during the time of default.
We are told * that the legality of this custom was nearly • Ha«t.
it to the proof in the last century by the lord of Swans- "'
unbe manor, to whom as mesne lord the rents from
ocles and Famborough Court were due. On these rents
lling into arrear a double amount was demanded and
ectments brought against the owners of the defaulting
anors. " A special jury was struck to try the matter :
it by the interposition of friends the dispute was com-
•omised and a small composition accepted in lieu of the
^nalty, though it was entered on the rolls of Swans-
»mbe manor in such way as that the custom of this pay-
.^oit might not be lessened by it in future."
It might have been difficult to prove the legality of
ach a custom, the manors having been held at first in
rdinary knight-service ; the services of castleguard more-
ver were not commuted before the reign of Henry III.,
3d any usage which can be shewn to have first com-
^aced at any period since the reign of Eichard I. will be
id as a custom^. It must also be shewn that such a cus-
^ is reasonable and compulsory, so that there should be
option in the lord whether or not he would choose to
duplicate the rents; and it must have been peaceably
'i continuously enjoyed from time immemorial.
In the argument on Periman's Case -f mention was made t 6 Co.
S4 b.
° Rex V. JoUtffe, 2 Bam. and Cress.
204 The Tenures of Kent. [chap.
of ^^ a custom in Kent, that if a free tenant of a castle does
not pay his rent, he shall lose the land holden of the
castle."
If this custom is meant to apply to free land, (L e. not
gavelkind,) held of the castles above-mentioned, the same
objection will hold good as against the custom of multiply-
ing rents. The military services were not commuted for
rent until after the reign of Bichard I.
If the custom did not apply to free land, it must have
been on gavelkind land. But it is exceedingly rare to
find any gavelkind land or tenements held by servioe of
castleguard. Supposing such land and tenements to exist,
and such default of payment to be made, still no such
custom is necessary, the Custumal having prescribed the
ancient remedy of gavelet ; and though held of a castle
such land would of course lose none of the peculiar quali-
ties of gavelkind.
From the manner in which Bobinson mentioned this
alleged custom, he would seem to have thought that it
might actually be the obsolete custom of gavelet. But
that process was only exercisable if no distress could be
found on the tenant's land for twelve weeks, in which
case the lord might hold it for a year and a day, and
afterwards take it into his demesnes by the award of the
County Court, and on the ultimate refusal of the tenant
to pay the arrears \
The custom then was not the process of gavelet, nor
could it be valid on lands which were not gavelkind. It
may have been a reniiniscence of the feudal forfeiture of
* The process of gavelet has long been superseded by the modem modes
of recovering arrears of rent. Indeed Lambarde doubted if it had ever
been put in use in his time. (Peramb. boA,)
IX.] Tenure by Barony. — By Castleguard. 205
land for neglect of service ^ (abolished 52 Hen. III. c. 22),
but it can hardly have been a good custom in modern
times.
Great discussions have been caused at various times by
the commutation of the personal service of castleguard for
the payment of a fixed rent-service.
" If a man holds his land to pay a certain rent to his
\Qxd,for castleffuard^ this is tenure in socage; but if a sum
in gross or other thing be paid or given by the tenant and
voluntarily received by the lord in lieu of castleguard^ yet
the tenure by knight-service remains*." • Litt.
55. 98. 99
If the rent were paid in temporary commutation of 121.
the personal service, the tenure was military ; but if the
personal service were changed to a rent-service it was
socage f . t Co. ritt
It was held indeed by Fitz-herbert that the military
cliaiacter of the services survived any commutation for
rent, and he illustrated the position by the case of lands
b.eld of an honour in the king's hands by the service of
iiomage, fealty, and rendering ten shillings yearly ad
^^rdam Caatri de Dover J. t f. n. b.
r»* . . 256.
Xhis opinion was very fully discussed in the case of
^^i^en V. Holmes^ Litt. 47, respecting a manor held of the
■^g by homage, fealty, and the service of paying 85. Id.
y^^x^ly " to the ward of Dover Castle." It was maintained
^^ tie authority of Litt. § 121 ("que est de plus validity
qn^ F. N. B. 256,"), that this rent-service converted the
X^istresB of the freehold by writ of cessavit was again given to the
Iw*^ Vy Stat. Wert. 2, c. 21, if the tenant were two years in arrear and
wo^d neither pay nor find sureties for future payment. But the pro-
cefidiugg on a writ of cessavit (abolished 3 and 4 Will. lY. c. 27) could
l^ot \)e described as a special custom of a castle in Kent. Such customs
Viflive been aUowed if carried back beyond the period of legal memory.
/Jlobins. ii. c. 6.)
2o6 The Tenures of Kent [chap.
tenure into socage. On the other side it was argued that
the tenure remained knight-service, and this was shewn
in several ways, for —
1. The Court of Wards and Liveries and the Exchequer
have always dealt with these lands held of Dover as being
held by knight-service. (They are enumerated for instance
in the Testa de Nevil and other rolls of knights'-fees, as
well as in the Books of Aid for assessing military aids
and scutages.)
2. A record was produced proving, that all the lands
held of Dover Castle by castlegiiard rents were anciently and
originally held by knightservice\ (If this had not been the
case the lands would certainly have been claimed as gavel-
kind in ancient times, which the inquisitions post mortem
shew not to have happened.)
3. A distinction was drawn between land held (as in
this case) in capite by such a rent, and of a castle. It was
said that the former would be a military tenure, except
^ An account of the change is preserved in the Feodary of Kent into ^
which the record mentioned in the text appears to have been incorporated. —
The record gives the names of the barons of Dover Castle, the knights*
fees of which their baronies were composed, and the castleguard servicer
due from each before the year 1263, and continues to this effect: —
"At length the king and his barons, considering that it was not safe^^
that a foreigner, the vassal of another sovereign, should have the costody^^
of the principal castle of the whole realm, the Lord Warden retired fronEa
his office, and the Lord Hubert do Burgh, Earl of Kent, was appointef^
Lord Warden of the castle. He, considering that it was not safe for th^^
castle to have new guards every month, ordained, with the assent ofc:-^
the King, &c., that each baron should pay ten shillings for bis castle — -
guard for one month, and that by these means soldiers, horse and foot^ ^
should be hired to guard the castle."
It appears from the records of the Court of Wards, that there were norr^p
less than eighty-eight knights'-fees in Ketit held of Dover Castle by^ii
ancient tenure of castleguard. A list of them will be found in ihe^^
Appendix. See also Camden's Britannia — Dover.
IX.] Tenure hy Barmy. — By Oastleguard. 207
where the king took a rent-service expressly in lieu of
all services and demands ^ ♦. • 33 Hen.
VI. 7;
The coiirt held that a perpetual change of the uncertain 7 Co. 123.
personal service to a certain rent-service converted the
tenure to socage f. "But it should not be concealed (said t Co.iitt.
Mr. Hargreave) that the court seemed inclined to think,
that under special circumstances there might he a change
of the oastleguard into rent, by consent of the king and
his tenant, without altering the tenure, where evidence
could be given of the manner in which the change was
eflfeoted^"
Several oastleguard manors came undoubtedly to be held
in socage in very early times; such was the important
manor of Swanscombe, of which so many others were held.
In the inquisition taken on the death of Edmund of Wood-
stook, Earl of Kent, in 4 Edw. III., we read that he held
the " manor of Swanescombe of the king in capite as of his
honour Bochester Castle by the service of paying yearly
rent to the said castle, viz. at the feast of St. Andrew
^A 4«., and at the King's Exchequer 85. M. in lieu of all
services." So in the same record it is said, "Wicham is
lield by him in capite by the service of paying a yearly
srent for all services."
Another inquisition wUl shew the confusion that existed
on the question whether these commuted services made
^ socage tenure. It refers to several manors and tene-
siaents held of Bochester Castle, and is interesting as an
' ''Quant le Roy dit 'pro omnibus serviciis et demandis' donques il
^^presse son intention que scroit socage." •
^ " Resolv. que le tenure fuit un socage tenure come est trouve. Mes
^^ Hiatter de record recite seroit bone matiero en evidence al inquest
* trouver ceo un tenure do chiyalry." — {LuttreVa Case, 4 Co, 88 ; CapeV$
^«««, Bml 9, 10.)
2o8 The Tenures of Kent. [chap.
example of the abundance of the infonnation respecting
Kentish tenures to be derived from documents of this kind.
It was taken on the death of Alice Charles or Charlys, who
had married Walter Colepeper. She died in 9 Eic. 11.,
and the jury found, " that she held in dower at the time
of her death these lands and tenements of B. CharlyS|
her kinsman, &c. : one-third of the manors of Addington,
Padlesworth, Nashenden, L. Delce, and Palstre, and one
half of the ferry at Smallhythe, excepting the lands and
tenements parcel of those manors and of the tenure of gavel-
kind^ of which she was not endowed according to the custom
of gavelkind''. ^^
" And that the portion of the manor of Addington, ex-
cept the gavelkind lands and tenements aforesaid, were
held of the Earl of March .... as of the manor of Swans-
combe by homage and fealty, and 365. of castleward to be
paid to the king yearly at his castle of Bochester, at the
feast of St. Andrew the Apostle And they find that
the said one-third part of the manor of Padlesworth, except-'
ing the aforesaid lands and tenements of gavelkind^ is held as
well of the king as of another lord by military service,
that is to say, of the king by homage and fealty and the
service of castleward to be paid to him yearly at his castle
.... and of the Bishop of Eochester by homage and
fealty and the service of paying 16c?. yearly at Michaelmas.
And they find that the said manor of Nashenden,
excepting the lands and tenements of gavelkind, is held of
the king in capite by military service And that the
° If the manors had been gavelkind she would have had a moiety.
The writs of do^er are useful in demonstrating tenures, e. g. as to the
ancient knight- service and castleguard manor of Kenardington, see Inquis.
post mortem of Thomas de Norman viUe, 2 Edw. I. 37, and a writ of dower
for one-third of the manor, *' Placitum pro dote Dionysiae de Normanville,'*
Abbiev. Plac. 2 Edw. II. rot. 68.
IX.] Tenure hy Barony. — By Castleguurd. 209
manor of Little Delce, except, &c., is held of the king
in capite by military service, and that a parcel of
this manor is held of the heirs of Lord Say by the service
of paying one pair of gilded spurs yearly." (Palstre and
Smallhythe, &c., are described in the same way as the
foregoing, i.e. as held by military service and the pay-
ment of a castleguard rent *.) • Esch,
As to Nashenden, we find the following entry relating il 135.
to that manor and to Great Delce, which were both held
by castleguard rents of Kochester Castle : —
^* The jury also find upon their oath that Eichard de
Haspale, brother of Alfred de Haspale, is his nearest heir
as to all the lands and tenements which are frank-fee in
the said manor {qiuie sunt de libero feodo). They find also
that all the lands and tenements which are gavelkind
{jjuw sunt de gavylygeyndeches) are partible among all his
brothers according to the custom of Kent ''."
The inquisitions above quoted shew the clearness of the
distinction drawn between customary lands and those held
l>y castleguard, whether these latter were by commutation
^f services converted into socage or not. In the case of
Gauge v. Woodin^ cited in the last chapter, it was decided
Ihat no change of military land to socage imbued it with
^^ostomary qualities. The change of which the judges
spoke in that case dated Only from 4 Jac. I., but in the
anqxiisitions and trials respecting these castleguard lands
^we find the same principle applied where the change to
socage took place as early as the reign of Henry 111.^
» Inq. p. m. Galfrid. dc Haspale, 16 Edw. I. 25; Cal. Geneal. 379;
^East. iv. 170, 173.
' The manor of Queen Court in Ospringe is an instance of a very early
^^nversion of a military tenure to socage. In 10 Edw. II. the manor and
demesnes \\ ere granled to Sir J. Pulteney to hold in capite by the service
P
2IO The Tenures of Kent. [chap.
We shall find that the same rule was recognised in the
case of francalmoigne manors given out in fee-farm before
18 Edw» L, a process which created a socage tenure.
One more example of the freedom of castleguard tene-
ments is afforded by the manor of Eastwell.
Hugh de Montfort, at the date of Domesday Book, held
one suling (afterwards mentioned as two knight's-fees) in
Eastwell as part of his barony. About half of this land
was in demesne. In 52 Hen. III. Matilda de Eastwell,
wife of John de Criol, died seised of this manor and the
advowson held by knight-service in capite. Her son Ber-
tram de Criol died seised of it in 23 Edw. I., holding it of
the king in like manner and by the payment of a castle-
guard rent to Dover Castle, this manor being part of the
Constabularia or barony of Dover. Of his two sons, John
and Bertram, the eldest inherited Eastwell, and endowed
Eleanor his wife of it for her life. It was held of Dover
Castle by the like services until the reign of Henry VHI.,
in whose reign Sir Christ. Hales held the manor of the
king as of his honour of Dover Castle hy Jcnight^ser-
vice^ after which time there could be no further dispute
concerning the tenure, inasmuch as all the lands of
Hales which had been gavelkind were disgavelled in
31 Hen. VIII. ^
of paying one red rose yearly, if demanded, for all services. (Hast. vi. 506 ;
Co. litt. 86 a.)
<» Hast. \u. 403 ; Inq, p, mcyrtem, 52 Hen. III. 32. 55 Hen. III. 34,
23 Edw. I. 48, and 30 Edw. I. 26. The eldest son of Bertram de Criol
inherited also the manor of Tirlingham with its appurtenances, held i»
caj)ite. (Calend. Geneal. 503, 712; Testa de Nevil, ''Estwelle.")
Tirlingham was held by the service "of repairing and maintaining
a moiety of a hall and chapel in Dover Castle, and of paying to the great
and small wards of the castle." It was a member of the barony of Folk-
stone. (Hast. viii. 165.)
The entry in Domcbduy Book respecting Eastwell is valuable as proving
IX.] Tenure by Barony. — By CcLstleguard. 2 1 1
Besides the manor and demesnes the Criols held lands
in gayelkind belonging to the superior manor of Eastwell,
which are also described in the escheat rolls, but these
were not held by castleguard. (For example, lands and
tenements in the reputed manor of Pottebury or Pothery
in the same parish '.)
The principle that lands held anciently by castleguard
cannot become gayelkind, was established finally in the
suits respecting the estates of the Earl of Sussex in the
last century. Had these suits been adequately reported,
no doubt could have remained upon the point ; but (accord-
ing to Hasted's History) in one or two instances the rule
has been neglected even since that decision, not of course
in a court of law, but in the compromises made by
&mily agreement when questions of tenure have arisen '
upon intestacies.
The facts of this important case were briefly these.
Bichard Lennard, Lord Dacre, was tenant in tail under
a settlement made by his father, of the manors of Cowd-
ham, Chevening, Apperfield, Bertrey, Hayes, Brasted, and
Ovemeys in Sundridge, with rents of assize and lands in
these manors : he was also tenant in fee-simple of a manor
and lands in Nockholt under his father's will, and tenant
in tail of the advowson of Hever, which had been entailed
on his father, (passing under the word ' hereditament,' and
being an advowson in gross never having been aflfected
by the later disentailing deeds).
that the Kentish Buling consisted of four "yokes" orjuga, and that the
I^orman carucate was sometimes equal to the jugum or quurtcr-suling, as
was mentioned before. ''Hugh de Montfort holds one manor Eastwell
.... taxed at one suling. There are three yokes within IfugKs division,
mul the fourth is without, being of the fee of the Bishop of Bayeux. The
arable land is three carucates in all."
' Each. Rolls, 48 Hen. III. 39, and 34 Edw. I. 37 ; Hast. vii. 409.
p2
2 1 2 The Tenures of Kent [chap.
Eichard Lord Dacre died in 1630, leaving issue two sons,
Francis Lord Dacre and Thomas Lennard, having, both by
a deed executed in 1629, and by his will, settled all these
estates on his eldest son in tail male.
Francis Lord Dacre (after exercising certain join-
turing powers) disentailed the whole property in Hilary
term, 1649, and afterwards devised it to his eldest son
Thomas in tail male. He died in 1662, leaving three
sons, Thomas, afterwards Earl of Sussex, Francis Lennard,
and Henry Lennard.
His last-named brother died in 1703, leaving three
daughters ".
In Trinity term, 1706, the widow of Henry Lennard, as
the guardian and next friend of her three infant daughters,
'filed a bill in Chancery, by which she claimed for them
one-third part (being their father's share) of the manors
of Chevening, Cowdham, Nockholt, Brasted and Chepsted,
with all their rights, members, and appurtenances, together
with the third part of the other lands (above mentioned),
the names of which could not be given until certain jointure
deeds were produced by the Earl of Sussex, as heirs of the
■ A pedigree of the persons principally interested in the proceedings
in Zomard v. Sussex and Burridge v. Sussex : —
Sampson Lennard (1).
Henry Lord Dacre (2).
Richard Lord Dacre (3).
Francis Lord Dacre (4). Thomas Lennard (5).
1 r I
Thomas, Earl of Sussex (6). Francis Lennard (7). Henry Lennard (8).
Margaret (9). Anne (9). Catherine (9).
IX.] Tenure by Barony. — By Castleguard. 2 1 3
body of Richard Lord Dacre (3), by virtue of the settle-
ment made upon him by his father (2) : all the said manors,
lands, and tenements being of the nature and tenure of
gavelkind. And it was alleged by the bill that on the
death of Eichard Lord Dacre (3), his two sons, Francis (4)
and Thomas (5), had inherited all the said manors, lands,
&c., as co-heirs in gavelkind. And that Thomas (5) had
conveyed his share to Francis Lord Dacre (4) for valu-
able consideration. And that the Earl of Sussex had
unjustly claimed to be the sole tenant in tail of the said
manors and lands, &c., and the reversions expectant on
the life-estates of the jointresses : whereas he and his
two brothers were co-heirs of the whole according to the
custom of gavelkind : and the share of Henry Lennard (8),
his brother, had now descended to his three daughters (9)
as his co-heiresses.
The Earl of Sussex by his answer shewed that —
a. The manor and lands of Nockholt had never been
included in the settlement made upon Eichard Lord
Dacre;
h. That the entail of the manors and lands in Apper-
field, Cowdham, Hayes, and Bromley, had been barred
by his father in 1649, and the whole devised to himself
in tail male. Supposing, therefore, that the whole were
gavelkind, yet even then, being socage, they would have
been deviseable in that manner ;
c. That Thomas Lennard (5), his uncle, had neither in-
herited any portion of the manors and* lands claimed, nor
sold any rights over them for a valuable consideration ;
d. That the manors of Cowdham, Bertrey, and Apper-
field, and all the lands and tenements in Cowdham,
Bromley, and Hayes, settled upon Eichard Lord Dacre,
were not of the nature or tenure of gavelkind, but then
{
214 ^^ Tenures of Kent. [chap.
and for all time whereof the memory of man runneth
not to the contrary, were held of the Crown in eapite,
and by castleguard for the ward of Dover Castle, and
were never partible among heirs male as in gavelkind \
e. That the manors of Brasted, Chepsted, and Cheven-
ing, and the advowson of Hever, had never been gavel-
kind, but had always been held of the Crown by knight-
* Cowdham. Described in Domesday Book as four sulings held by Odo,
then Earl of Kent. On his disgrace it was made part of the barony of
Maminot, being held as two knight' s-fees by castleguard. In 56 Hen. III.
William de Saye died holding it in barony, and was succeeded by William,
his eldest son. (Rot. Esch. 66 Hen. III. 37, 12; Philipott, 123; Hot.
Esch. 23 Edw. I. 42.) Geoffi*cy do Saye sat in the House of Lords as
Baron Cowdham in 28 Edw. III. His son, dying in 49 Edw. HI., was
found by inquisition to have held Cowdham in capite hy military Bertiee^
i.e. by barony with a castleguard rent. In 6 Hen. IV. the manor de-
mesnes and rents of assize were found to be held in eapite as before.
(Hast. ii. 60, 75.)
Apperfield {oTigmaRj Appuldreor Appletree Field), was part of the
two knight' s-fecs in Cowdham above mentioned, and was held of that *
manor as one knight's-fec (according to the Testa ds Nevil) in the reign of '^
Edward I. In the Book of Aid 20 Edw. III., recording all the Kentish -i
lands held by ancient knight- service, this manor is described as one ^
knight*s-fee held by Stephen de Ashway and his parceners {sciL husbands ^
of co-heiresses), which Henry de Apperfiold held of the king (as of his ^
honour 6f Saye) by service of castleguard. (Lansd. MSS. 369 ; Hast. ii. - -<
69.) It is thus described later in the Feodary of Kent, (35 Hen. VIII).
lUrtrey was part of the same two knight' s-fees of Cowdham, and was ^*-
held by the family of Saye by military service. Walkelin de Maminot ^*
gave the tithes of 246 acres of his demesnes in Bertrey in free alms to the ^
monks of Rochester. The terms of the deed, which have been before ^^
quoted, shew the distinction between his demesnes {dominium meum) and -^^
the gavelkind land of the manor. ('* Quod si aliquid de pncdicto Dominio ^^
in rusticanam servitutem translatum est,** &c.) (Somn. Gbv. 127 ; Selden, «.^
Tithes, 313 ; Registrum Roffense, 268 ; Hast. ii. 73.)
" Brasted, The manor demesnes and rents of assize were held of the ^^
Archbishops of Canterbury as part of the barony allotted to them at the '^
Conquest. It is described in the Book of Aid, 20 Edw. III., as one-fourth
/
IX.] Ihmtre by Baronff. — Bff CasUeguard. a 1 5
He was not entitled to this advowson .by virtue of tho
settlement made upon Eichard Lord Dacre(3), but by
a much earlier instrument^ the general wording of tho
will of Sampson (1) having entailed this advowson among
other hereditaments.
f. But the manors of Brasted and Chepsted had also
been in the ownership of Sir Henry Isley, when all \m
socage lands were disgavelled by tho Act of 2 and 3
Edw. VI.*
of a knight's-fee. It had been held in francalmoigne before Uie iUm<{\ii%i.
The owners of the manor owed services of sergeanty \a) the An;hbit*hoj>,
(Hast. iii. 146.)
Chetening was also held by knight-serrioe of tibe Archbx4iQj>t<« < tn^,
poii mortem Rob. de Creveqner, 47 Henry IIL 33; Ha«t, iii. 1<>#5.; It
was part of the Archbishop's hononr or manor of <>tford> lli^f yurVij^
mentaiy Survey taken in 1649 of all the Crovxt^JUaudv w^ttA^Mut ih^.
differences of tenure in Chevening, which prewrve U*^ <iiHiiju<^>^ U>
tween the viUani and hordarii, the gavelkind texutstib zsx^ \k^ <^i;itivt«tv«it
of the demesnes who at first were inferior to ih^mi. T W^ wv '^>w v m*^
of land, yoheland and inland, paying different bwot» luud ^MnitiHtU ,
ihiBTe are also copyholders, the representatives of tJiai mmih^rv^^A, <%k^ ^
cottiers, cotarii, mentioned above to be chiefly found */u ^^h^f<'h ^Mi*ty
The manor of Chevening claimed in the suit of l^mnmi v ^¥m^^ *#
entered in the Book of Aid 20 Edw. III. as one-half at % km^\4^A
Jffever. The manor had always been held in knigbt^mfrt)^:* ; it V i^
specially described in Domesday Book, but must havi? Ua* '^'XstM ui
the description of Great Orpington, of which mari/>r H U ¥ y*ftuHt.
A moiety of it was granted by th§ Abbot of St. Augu^iAV'^i mi i M¥> S
to William de Hever, to hold as the fourth part of a kA»i|5l»t'ii-t4^ '^m
Hast iii. 191, and Calend. Geneal. 170.) The ailvwiK-jM wikt v^ v>4m^
of the same tenure as the manor to which it was orijpttWJ^ i^^fiMHiM^
« Chepsted was part of Chevening manor, which \mn U^Mi a(H*«Ni U> i^i^^^i
been part of Otford manor. It must have been dimmm hnnK u^i^u^'^
as it was always held by knight-service. In theBook 4rf'AJ<ljli)i>ii^ i.j
mention is made of one-twentieth part of a knight*(MGM^4i«ll4;<I,<;u^^^.
The demesne lands of this manor are described by UmiM. .iii l^) '^ ,^
entry in Domesday Book shews that there was a fffuL^ .^i\ ^^ ^^^
demesne land within the manor of Otford held bjr tik Ai^rtitfjjw^^, ^^:
by " three thanes, Taint,'* his military tenants.
There were other estates in dispute in this suit> u ll#j*»,:^LV»4tM^;r
2 1 6 The Tenures of Kent. [chap.
g. In the same way the manor and demesnes of Cheven-
ing had been in the ownership of William Koper, when
his socage lands were disgavelled by the same Act.
h. The farm in Sundridge, and the other lands in dis-
pute not already mentioned, had also been in the owner-
ship of persons whose socage lands were disgavelled ; and
there was finally one small farm which the Earl believed to
have been disgavelled, but of which the tenure was not
very clearly known, several exchanges of land having taken
place.
No further proceedings appear to have taken place im-
mediately, owing to the death of Mrs. Lennard the plain-
tiff, in 1706, in which year died also the EarPs second
brother Francis (7), without issue and intestate.
Soon afterwards the Earl contracted to sell the manor
of Cowdham and certain other lands and tenements which
had formed part of the disputed estate. Upon this the
guardian of the Earl's nieces (9) made the same claim as
had been advanced before, and demanded in addition
a moiety of the share, to which Francis Lennard deceased
was alleged to have been entitled as one of the co-heirs in
gavelkind. The case was decided finally by a trial at bar,
in the Queen's Bench, where the Earl of Sussex fully sus-
tained the truth of the statements before made by him.
It was decided that the lands, lying in Kent, were prima
facie presumed to be gavelkind, until the presumption was
rebutted by the proof of the ancient freedom of their
tenure by castleguard and knight-service. As to the re-
in Sundridge parish, besides the lands in Nockholt, which last are pre-
sumed to have been gavelkind on the authority of an ancient grant of
** demesne land in Nockholt tenendum in gavelkind'^ (Somn. Gav. 180.)
But there was no necessity for proving an ancient military tenure of
these lands.
i
IX.] Tenure by Barony. — By CastUguard. 217
maining lands, not so held in ancient times, the fact of
their haying heen disgavelled was proved by the inquisi-
tions po^t mortem of the persons who had owned them in
31 Hen. VIII., and 2 and 3 Edw. VI. ^^The evidence
that the lands were disgavelled was very clear as to all
but one farm of thirty acres and worth £30 per annum:
and that being left to the jury they gave a verdict for the
whole for the defendant ^."
In the course of this case the inquisition pod mortem of
Bichard Lord Dacre was put in to prove the settlement
made on him and the heirs of his body, which had been
transcribed in it totidem verbis. It was objected that this
was not good evidence of the terms of the settlement, but
the objection was overruled ".
We could not want anything to prove more clearly that
these castleguard manors are not gavelkind; and if the
manors, then their appurtenances before enumerated, as
the demesnes, the advowsons, rents of assize, and all
profits of the soil annexed to the seignory, such as stall-
age, pickage, and the like.
But it must be remembered that this freedom is not
due specially to the castleguard service or the castleguard
rent ; nor is it due merely to the fact that this tenure was
a species of ancient knight-service, and that '' no ancient
knight-service land is gavelkind.'^
Such a rule must be empirical and liable to cause con-
fusion, if the general principle be not clearly apprehended :
9cilicet gavelkind is nothing but ancient socage, and any-
thing originally held by a tenure superior to socage is not
' Burridge v. Sussex, 2 Raym. 1292.
■ As to the admissibility of these inquisitions, and the purposes for
which they generally issued, see Taylor, Evid. 1295 ; Phill. Evid. i. 392;
1 and 2 Vic. c. 94, § 12 ; and Calend. Gcneal. i. pref.
2 1 8 The Tenures of Kent. [chap.
gavelkind. Castleguard is one of these superior tenures :
others are barony, sergeanty, knight-service, and francal-
moigne the highest of all.
A question has sometimes arisen as to the tenure of
particular advowsons. In the case just cited it was shewn
that the advowson of Hever was always held by knight-
service, and it is important to remember that the advowson
is of the same tenure as its manor. Thus, for example, the
manor of Chilham, held by barony and castleguard, had
no less than six appendant advowsons, all of the same
tenure as the manor itself.
In ancient times the lord of a manor nominated the
clergy of the churches within the lordship, and this right
^ of iwmiuutionor^dyosgBiaujoon became hereditary. It
passed with the manor, or with such fragment of the ^
manor as the lord might define by a grant. Thence it<^^
♦ Gib«. was said to be appendant to the manor*, i.e. "to the de- — -
756; Co. . ^^ '
litt. 122 mesnes, which are of perpetual subsistence, but not to^^i^o
Abr. 60. rents or services which are extinguishable and cannotd^^^t
therefore support such appendancy." Being appendant^" -iit
to the demesnes, it must be held originally by the same^^ -*®
tenure. If they were gavelkind at first the advowson ia^-Ss
gavelkind now, and this whether the advowson remaiin^c^J
appendant or be severed.
But if the manor and demesnes were originally held inr^-D
francalmoigne or by services of chivalry, then the advow- ^^^•
son anciently appendant on them is not gavelkind.
The manor of Ashford was among those estates which
were held of Dover Castle by payment of a castleguar
rent. It is described as having been held by the grea' — *
family of Criol "by knight-service of the king in capif^^
by ward to Dover Castle and the repair of a tower ther^^
t Hast, called Ashford Tower*."
vii. 528.
il] Tenure hy Barony. — By Castlegtmrd. 219
It was always eixumerated among the military lands
►f the county, its owner having paid aid for it as such in
50 £dw. in., as appears by the Book of Aid taken in that
rear, and the Feodary of Kent, as well as the more ancient
•oils of knight's-fees in the Exchequer. In 3 Edw. VI.
t was granted by the king to be held in socage in capitCj
i change of tenure which could not make it gavelkind, as
ihewn by the cases before cited. It would appear from
he history of this estate given by Hasted, that on the
leath of Mr. Eoper in 1754, intestate, the inheritance of
;hi8 manor, with those of Wall and Esture, descended on
lis two sons as co-heirs in gavelkind. "But they being
nfSants and there being many incumbrances on these
estates, a bill was exhibited in Chancery, and an Act
procured 29 Geo. II. for the sale of them." This descrip-
don might easily lead to mistakes as to the tenure of all
lands anciently held by castleguard.
The estate really ordered to be sold by the private Act
29 Geo. II. c. 24, comprised the manor of Ashford {not
the demesne lands), the manor and parsonage of Slurry,
and the manor of Haugh, besides several pieces of land
in Ashford. Part of the estate was gavelkind, but clearly
not the manor of Ashford, for nothing can change the
descendible properties of land held by ancient knight-
service. And the Act recites accordingly that " whereas
the said estates are now vested either in the said T.E. as
heir at the common law or in the said T. E. and H. E. as
co-heirs in gavelkind," &c., and elsewhere speaks of the
brothers as the " right heirs at common law, and in gavel-
kind respectively."
Several loosely reported cases of partition among reputed
co-heirs may doubtless be explained in the same way, lands
of diflferent tenures having passed in the same course of
220 The Tenures of Kent. [chap, ix-^ ^
ownersliip, wliile disputes as to partition had reference^^^
only to those of the customary tenure.
The decision in the suit of Lennard v. Sussex above cite(^^^
makes it clear that this was the case with the castleguard^^
manor of Ashford *.
• A list of all the knight's-fees held of Dover Castle is given in
Feodary of Kent, and in the Eed Book of the Exchequer, 157 d.
The total numher was thus apportioned among the eight haronies : —
Constabularia 56
Dover 15
Avrenches 21
Arsic ....... 18
Peverel 15
Maminot 24
Port ... ... 12
Fitz- William 6
Crevequer 6
CHAPTER X
Tenures by Sergeanty.
Brand Sergeanty.— Its yarieties. — Petty Sogeanty at first a Iditary
Tenure. — ^Afterward held to be Socage. — Grand Sergeanties in Kent —
WESTPECKEAM, SEATOX, SHORXE, ARCHERS COURT,
BIL8INGT0N, ETURST, Ac.— Petty Sergeanties in Kent.— OX£LV.
ROATH, ST. MART CRAY, LULUXG STONE.— Xo^$ C^e.—
OTHAM, BEKESBORNE, &c.— Sergeanties held of the Archbishop
of Canterbury. — Spread of Socage Tenure.
Sebgeantt was another of the military tenures superior
to socage. Lands originally and anciently held by any
variety of sergeanty were therefore in Kent descendible to
the eldest son, according to the general rule before laid
down.
The tenure was of two kinds, grand and petty sergeanty.
The services were "often honorary and sometimes ludi-
crous," but the tenure ranked among the noblest.
Grand sergeanty is thus described in the books : " where
one held of the king by such service as he ought to do in
his proper person to the king ♦, as to carry his banner or • Bra-t.
lance, or to be his carver, butler, chamberlain of the Ex- Tenures 2;
chequer, or the like ^ " J^^^ *•
It differed from ordinary knight-service in the following
particulars, viz. : —
a. The services were in general due within the realm.
b. No escuage was owed by the tenant, and no aid
except to ransom the king f . t Madox
c. The amount of the heir's relief was different. " '.
■ " And note, that all which hold of the king by grand sergeanty, hold
of him by knight-service ; and the king shall have ward, marriage, and
Telief."— (Z4«. §. 158.)
222 The Tenures of Kent [chap-=s.
d. The service was certain, and only the time of render^
ing it was uncertain.
The tenure was not abolished by the act 12 Car. II_—
• Co. utt c. 24 ♦, but so regulated as to remain a dignified specie&^M
of socage, the tenant still being liable for the purely hon
orary services, if demanded.
The definition above given, ^* where a man ought to d(^
the service to the king in his proper person^^ &a, thougk —
correct as far as it goes, does not include all grand ser
t Litt geanties f. A case is cited by Littleton from the Yearboofc=iz
** ' 11 Henry IV., of one who held land in capite by the servio^^
of finding a man to serve the king in his wars at any plau. J
within the four seas : " And the Chief Baron of the Ex
chequer demanded if this were grand or petty sergeanty^
And Hanke J. said that it was grand sergeanty, because hLm r
had a service to do hy the body of a man^ and if he cannot Jinc=^
a man to do the service he himself ought to do itj^ And f^^f^^ ^ft
was acknowledged by the other judges.
From this case Coke drew the distinction that there axm^rye
two classes of tenants by grand sergeanty, —
1. Those who must serve in person ;
t Co. litt. 2. Those who may send a deputy J.
In the latter class are those whose service was to carr^^^
a banner, to blow a horn on an enemy's approach, to fin^^ -^^^
soldiers for internal war. The distinction appears to b -^oe
sound, although it contradicts at first sight the usual de^^3"
nition of the tenure : but Mr. Hargreave doubted the pro^ ^^ "
priety of the judges' opinion in the principal case ^.
^ Spclman recognised the same distinction in his description of thti-^^^^
tenure : — ** Grand sergeanty is that military tenure in which one hold^^^^
lands and tenements of the king in capite by the service of doing 8om(^^^
honorary office by the body of a man, himself or another {per personan^
/lomifiis) : and it is called military, not because the service is always to b^
i
X.] Tenures hy Sergeanty. 223
We find both classes in Kent, as will appear from the
instances selected to illustrate the rule that ancient tenure
by sergeanty is a bar to the presumption of gavelkind *. • Co. utt
Petty sergeanty was also at first a military tenure. The
service consisted in "rendering yearly to the king some
implement or other thing pertaining to warf." It dif-tLitt.
fered from the last-mentioned tenure in this : the services
were not personal, or "done by the body of a man:" and
they were certain both in their nature and in the period
of payment J. This was eventually recognised to be t Wright,
nothing but a rent-service, and the tenure to be as much Co. utt. *
socage, as if an ordinary. lord had reserved the rent of
a rose, a spur, or a peppercorn "".
Though altered in its incidents among other tenures in
eapite by the act for abolishing feudal tenures, petty ser-
geanty still survives as a superior kind of socage §. losb^***
In the time of Bracton it would seem to have been
a military tenure : for he wrote, that where one held by
rent-service with the addition of any service to the king
or escuage to the smallest amount, that was knight-
service II. i ««*•«•
But when Littleton wrote it had long been settled that
petty sergeanty was socage in effect ; and as to escuage or
tenure by payments in lieu of personal military service, if
the amount werefixed^ that also was socage ^. ga^ilol
performed in war, but because as with all military tenures, the king had
waidfihip, marriage, and relief, from the heir." — {Glossary, Sergantia.)
* ''Sargentia minor inter civilia servitia, quae socagia vocant, nume-
rator : et dicitur cum quis ratione feodi regi tenetur annuatim exhibere
exigunm aliquid ad apparatum bellicum pertinens, arcum, gladium, cal-
eaiia aorea, &c., quae juxta "VletsB sententiam dimidiam marcam, non
exoedant." — {Spelm. Gloss., Sergantia,)
As to the incidents of petty sergeanty, see further Magna Charta, c. 37
(9 Hen. III. c. 27) ; Bracton, ii. 35 ; Stat, of Wards and Reliefs, 28
Edw. I.; Reeves, Engl. Law, i. 38; Fleta, i. c. 11.
^
224 The 1 enures of Kent [chap.
But the important point to remember for our present
purpose is that lands in Kent held originally by sergeanty
of either kind are descendible to the eldest son. This rule
is unaltered either by the early recognition of the feet that
petty sergeanty was socage, or the later conyersion of
grand sergeanty into socage by the statute of Charles 11.
Such socage has nothing to do with gavelkind. Besides
this, most of the estates held by sergeanty of either kind
in Kent, are also described in Domesday Book as being-
held at the Conquest by barony or knight-service.
The charter of Edward I. produced in the case of Gate —
wyk V. Gatewyk (extracted at length in Kobinson^s " Gavel
kind") is very explicit in its language respecting ser
geanties: "We will that the said lands descend to hi^^
firstborn or other male heir, &c., as those descend whicl 1
he holds hy sergeanty or by military service, entire an( Jil
without partition among other males "*."
The' sergeanties of Kent are enumerated both in th»_Me
Testa de Nevil (pp. 205—219), and the Red Book of th^-^ne
• Lib. Exchequer *, with c;reat particularity. There are al&^^sso
Rub.l28d. . « , . n ;. . . .
notices of the conversion 01 sergeanties into tenures b^c=)y
simple knight-service, and vice versa. It was forbidde^^n
in strict law to aliene lands held in sergeanty in th~ ^^is
manner, the king having a right in such cases to resunr":::*ie
the land, and this right was occasionally exercised: ("Se. ^r-
gantia non debet lacerari vel alienari ^.")
^ *' Qiiare volumus et firnie praDcipimus pro nobis et hcredibus nosi
.quod omDcs terraD et tenementa, quae proDdictus A. in gavelykendam
fcodo tenet et habet in comitatu pracdicto, ad primogenitum suum
alium heredeni suum propinquiorem post ipsum, sicut et ilia quae
Sorjantiam tenet vel per servitium militaro, integre absque partitii
inter alios inde faciendd descendant." — {Roh. i. c. 5.)
' See Flacitonun Abbrcv., Trin. 7 Johan. 5 ; and Mic, 38 H(
III. 18.
/
.] Tenures by Sergeanty. 225
The manor x)f West Peckham is an example of the dif-
rent varieties of sergeanty. Before the Conquest it was
thane-land," or allodium^ held by Earl Leofwin, brother
• Harold II. * ; it then became part of the barony of the • Hwt.
onqueror's nterine brother, Odo of Bayeux, being de-
»ribed in Domesday as consisting of two sulings with four
•acts of forest (lying in the Weald of Kent). One-sixth
r the land was held in demesne.
In the reign of John it was a sergeanty held by the
Tvice of finding a man to carry the king's gos-hawks
^yond sea f. t Lib.
Soon afterwards it was held as two sergeanties, the first 128 d.
Y the service just mentioned, the second by the petty
jrgeanty of finding a ship for the king J and of making j Co. litt.
money payment at the same time. This part, then, had
acome socage (not gavelkind), and is afterwards recorded
\ have been held by homage and fealty of the king, i. e.
I socage ' §. § Litt. §.
The former portion was found in a trial before the
ddges itinerant in 21 Edw. I. at Canterbury, to be held
y the grand sergeanty before mentioned : it was also
bund "that of this sergeanty Gilbert de Clare, Earl of
Houcester, holds 200 acres of land worth yearly lOOs.,
tid 678. yearly in rents of assize from the freeholders,
^ ** 8. de BendeviU tenet Peccham in seijantiA, et debet invenire navem
?|gi ad Bervicium suum et offerre Regi tres marcas." — (^Teata de Nevil,
«•)
*^ Peccham tenetur per servicimn mutandi unum austurcum Reji^i per
K^um." — {Inq. p. mortem^ John de Peccham, 21 Edw. I. 35.) I> / this
iTii»ition it also appears that John de Peccham left three daughters, '
'^hom the eldest was heir to his land in sergeanty.
• *Bob. Scarlet tenebat W. Peckam in capitc per homagium," &c. His
other was heir. {Inq. p, mortem 33 Edw. I. 26, and Lansd. MSS.
^«, 36.)
a
226 The Tenures of Kent. [chap.
being part of the same sergeanty, which had become dis-
membered : and the said Earl failing to produce any in-
strument shewing his tenure, the lands were taken by the
• Harri-, Sheriff for the King's use *."
234.' The other portion is noticed to have been held in grand
sergeanty and knight-service by Lionel, Duke of Clarence,
as tenant by the curtesy of England. He held a moiety
of the manor which had been divided as above mentioned,
not a moiety of that moiety, which would have been the
case if the land were gavelkind *.
W. Peckham is said in Domesday Book to have had one
of its six carucates in demesne ; in the inq. post mortem of
1 11 Edw. Adam at Brook f , it was described (according to Hasted)
as ^^a capital mansion, with rents of assize from the free-
holders, and 184 acres of arable and wood."
The following is an instance of a grand sergeanty which
might be performed by deputy. The manor of Seaton in
Boughton Aluph was held by the service of going, or pro-
viding a man to go, as Vautrarius^ i.e. leader of the king^*
greyhounds, whenever the king went to Gascony, "unt>^
he had worn out a pair of shoes worth fourpence boug-l^t
at the king's cost^." The word Vautrarius is r^^^
Vantrarius by Coke and Hearne in the Lib. Nig, Scc^^
carii^ and taken to be "the man marching before t-^
king as his fore-foot man." " And this service bei^ ^
admitted to be performed when the king went to
cony to make war was knight-service^. ^^ The est
K Thus Lord Abergavenny held the neighbouring estate of Yoke's-pl
as tenant by the curtesy in 16 Edw. lY. This manor is mentione
the Feodary of Kent to have paid aid among the other military
in 20 Edw. III. (Hast. v. 83.)
^ Blount, Anc. Tenures, 142 ; Hast. vii. 388.
i Inq. post mortem John de Criol, 48 Hen. III. 39, and Ric. de lluck^^^
11 Edw. II., Co. litt. 69 b.
X.] Timtres by Sergeanty. 227
afterwards held by castlegnard serrice of Doyer
Castie\
The manor of Shome is another example of the same
Tarietj of grand sergeanty. Sir John de Xorthwood held
it as one knight's-fee of the Crown\ and his heir is re-
ceded to haye held it of the Crown by the seryice of
carrying a white banner or standard to Scotland when
the king made war, for forty days *, at his own expense. • Hmi. i
The manor of Seale* is said to haye been held by a some-
what similar tenure at the end of the fourteenth century,
TK. by the sergeanty of blowing a horn on the approach
of an enemy. This tenure by Comage was also held to
be a yariety of knight-seryice.
The manor of Bilsington was a grand sergeanty of the
ordinary kind. It was part of the barony of Odo of
Bayeox, and upon his disgrace was granted to William
de Albany to hold as the king's chief butler (pincema
Regis) at his coronation. The manor being diyided be-
tween co-heiresses, the honorary sendees were multi-
plied. Thus Bilsington Inferior has been held ^^ by carry-
ing the last dish of the second course to the king's table,
^ A stin more ludicrous service was due firom the tenant of Copeland
and Atterton, otherwise called Archer^s Court iu the parish of Rirer.
Tke landB were held in grand sergeanty by the service of holding the
kiBg^s head between Dover and Whitsand, as often as he should pass by
•ea between those ports, and have occasion for the service. (Hast. ix«
440. See L^. po$t mortem of Salomon de Chanuz 31 Edw. I. 34.)
'^Temiit in capite de domino r^e quoddam tenementum apud Ceper-
load ei Atterton per scrvitium tenendi caput ipsius domini regis quo-
tienaeonqae transfrctaverit in pardbus transmarinis .... (Tenuit etiam
^fireraa tenementa in gavelkind)." — {Calend, Geneal, 644.)
He was succeeded by his daughters as co-heiresses. It is said that the
'i^t to perform the service was claimed as late as the end of the sixteenth
•eotury. {L^. post mortem Sir Matt. Browne 4 and 5 Ph. and Mary.)
* Imq. po9t M'rtem Roger Xorthwood, 13 Edw. I. 25.
* Co. Utt. 69 b, 109 b; Harrb, Hist. Kent, 274, Philip 309.
228 The Tenures of Kent [chap.
and presenting him with three maple cups," down to the
present time. The other portion of the manor was held
by the Priors of Bilsington "by serving the king with
• Hast-viii. his cup on Whit-Sunday ♦."
The manor of Hurst and the estate of Goldenhurst
formed a grand sergeanty, the tenant keeping a falcon
for the king's pleasure. Part of this estate was converted
into ordinary knight-service, and held as one sixtieth part
t ibid.329. of a knight' s-fee ° t-
Exch.463. The Grange (anciently called Grenech) in Gillingham
was held by the service of finding a ship and two anned
men for the fleet of the Cinque Ports. The tenant is also
said to have owed the service of an oar whenever the
king sailed to Hastings **.
The manor of Ashton was held by the office of guarding
and carrying the king's falcons. i
These were all grand sergeanties, and therefore kniglkt;'
service, so that no doubt could be thrown on the fireedaKH
of their tenure, and their descent at common law. Rmit
the cases of petty sergeanty have sometimes present-^i
a difficulty, scil. that of distinguishing from gavelkLMKii
lands those which were turned into socage in very ea^rrly
times. All the petty sergeanties in Kent will be fou^::^^^
by inspection of Domesday Book to have been parcels ^^
the baronies there described, and to have been in gener::==^
held by knight-service of those baronies.
Being afterwards granted to hold of the Crown by yearr: jrly
render of something pertaining to war, they were s^ — ^^^
classed among military lands, but soon recognised to ^^
in reality socage. Yet being sergeanties the rule applr:^ -i^
" Testa d<i Nevil, 210.
<* Inq. post mortem Mauasscr de Hastings, 5 Edw. I. 7, TMta=^ ^
Kevil, 219.
/
X.] Tenures hy Sergeanty. 229
to them^ whioh has been quoted from the case of Gatewyk
V. Gatewyk at the commencement of this chapter. We will
now notice a few of the various forms of petty sergeanty
in this county, and one or two cases from the records,
which distinguish the lands held by them from gavelkind.
The manors of Oxenhoath * in West Peckham, Lulling- • Hast. v.
63
(Stone, part of Little Delce (see inq. post mortem of Alice
Charles, 9 Eic. II. in last chapter), St. Mary Cray, Elvy-
land in Ospringe f, and others, were held of the king by t ib. vi.
the sergeanty of paying one pair of gilt spurs yearly.
Of these LuUingstone was held in capite as the fourth
part of a knight's-fee, and paid aid as such in 20 Edw. III.
with the other military lands. It is described J as "atib.ii.542.
mansion, lands, and woods, with rents of assize in LuUing-
stone and Peyfrere." The two estates are separately de-
scribed in Domesday Book, having been held by knight-
service of Odo of Bayeux, as parts of his barony.
St. Mary Cray was part of the same barony, held after-
wards by the tenure of castleguard as well as sergeanty § ; §ib.ii.ii6.
it is numbered among the military lands in the Feodary
of Kent, and in the roll Constabularia of the fees of Dover
Oistle.
A suit took place respecting the tenure of Elvyland in
ihe twenty-first year of Henry III., which shews that none
if the above-mentioned estates were held in gavelkind.
Dionysia, widow of Eichard Noel, was summoned to
mswer for deceiving the king's officers by affirming that
ler husband held his land in gavelkind instead of by
lergeanty p.
On appearing she denied that she had said whether he
P Noel's Case, Placita coram Rege 21 Hen. III. rot. 7 dors. Kent ; set
mt in the pnblished Ahhreviatio Placitorum, 1.
230 The Tenures of Kent [chaf^**
held in gavelkind or by sergeanty. And she said thar^ — t
she herself believed it to be gavelkind.
A deed was produced by which Eichard I. had enfeoffed^H
her husband's brother, from whom the inheritance ha^Hl
descended to her husband, setting out that he was t(^^
render for the land one pair of gilt spurs yearly.
And she said that she had paid the king 100s. to havfs
the custody of the heir, her son, whether the tenure wer^^
gavelkind or sergeanty.
The counsel for the Crown argued that she had £alsel^ —
called the estate gavelkind, and had deceived the king^
for she would never have had the wardship of the heiscr
for so insignificant a price if the king had known tha'tt:
the tenure was a sergeanty.
She was permitted, however, to retain the land in dis. —
pute, until it should be clear who had caused the deceits ^
the land not being gavelkind, and also until it should \> ^^
decided whether such a sergeanty was socage or knighi=^-
service.
The case was soon afterwards tried again at Wes'^lt-
minster before the king in council propter difficultatei^^^ ^
and it was resolved, (1) that Dionysia Noel might rcta^S-^^
the wardship and marriage without making any furthe^^^^^^
payment to the king; and (2) that she had not wilful^ K^-5
deceived the Court, having produced a deed which clear)^^^^^^-
set out the services; and (3) that the wardship and macr- — -^
riage were not to be those proper to a gavelkind tenanci
nor to a tenure in socage^ but to a sergeanty^ i.e. a militar
sergeanty.
It is clear enough that the land was not gavelkinc
But it is not evident why the judges held it to be a mil
tary tenure, except on the principle above stated, that
sergeanties were at first held to be knight-service.
/
X.] Tenures hy Sergeanty. 231
But the rent paid to the king was certain, and paid at
certain intervals. It must therefore have been socage
after all, in accordance with the theory held in later times.
It happens fortunately that great doubts having been felt
as to the accuracy of the judgment on this point, the
verdict of a jury was again taken, which finally decided
that it was socage (not gavelkind).
"The jury further declare upon oath that the said William
Noel held of the king in capite by petty sergeanty, videlicet by
the service of paying one pair of gilt spurs yearly, worth sixpence,
and this tenure is socage \"
The manor of Bekesboume (which is variously called in
ancient deeds Bum, .Limingsbum, and Levingsburn) was
port of the barony of Odo of Bayeux, and retained by him
is part of his own estate. On the confiscation of his lands,
hia manor with its demesnes was given in sergeanty to be
leld by finding a ship for the king, when he should go
>eyond seas, and the payment of three marks ♦. ^t/^I^ ^%
This tenure has been called grand sergeanty f because t Hast. ix.
►f the apparent uncertainty of the service. ^^"
But Coke said that such a tenure would be properly
sailed Liberum servitium^ which is a term never applied to
oilitary service. "And it is clearly neither grand ser-
geanty nor knight-service, because nothing is to be done
* William Noel was the son of Richard and Dionysia, named, above.
?he verdict was given in the Inq. post nwrt, of W. Noel, 7 Edw. I. 47,
^alend. Geneal. 286.
** Tennit de domino rege in capite per parvam scijantiam videlicet per
ervitinm nnius paris calcaiiorum dcauratorum pretii 6d., et est soc-
ginm." See also 20 Hen. III. 8, Inq, post mort, of Richard Noel : ** Elisa-
leth Noel held the land by the same sergeanty in 21 Edw. I., as appears
)y the pleas of the Crown before the justices itinerant in that year." —
JTasi. vi. 614.) Nich. de Gemnde paid aid for it in 20 Edw. III., as one-
brtieth part of a knight's-fee.
232 The Tenures of Kent [<
by the body of a man, nor touching war, but ships to b^
•Co.iiu. found*," {ad tramitum nostrum ad mandatum nostrum)^ ;
Bract.' ii. and unless the ships were intended to be supplied in tim^SBe
of war, it would not even be petty sergeanty. In no ^<" >
however could it be gavelkind. 80 far from being divisi
ble among sons, it seems to have not been divided evenK—
among daughters ^
The manor and advowson of Otham were held in ser
geanty, and are found to have been divided between tw<^»
brothers, Robert and Walter de Valoignes ; but this wa^^
not by any claim of gavelkind, but by a deed of gift, whiclK^
was produced at Canterbury before the judges in eyre^,
21 Edw. I. This estate paid aid in 20 Edw. III., as on^
knight's-fee, having then been further subdivided as re^ —
fHaat. V. corded in the Feodary of Kent f*
The manor of Eastbridge was held as a petty sergeantj^
by Hubert de Burgh, who found the king one sparrow —
Jib. viii. hawk yearly for it, in lieu of all services J.
The estates called Wavering and Overhill Farm in::*-
Boxley were held in sergeanty by the service in each cas^^^
of ^^ finding a horse of a certain value, and one wallet an
a IrorJie^ or skin for wine" whenever the king shouli
march with his army to Wales ^
' An action was brought by William de Aiding, or Galding, and hi^
wife Avicia, against one W. de Bcke, tenant of this estate, to recoYC^
forty :.cre8 of land as her reasonable share of the inheritance of her uncled
lately kxeasod. The case was decided against her on proof that thc::^^
land 'NT :} held in sergeanty and therefore could not be divided. **Lim —
ingbor.. ? est serjantia llegis et non debet partiri." — {Ahhrev. Placit^-
34, 39. )
Thi. parcel of forty acres is described in the suit as one carucate op
land.
' ** "^'illielmus de Longo Campo tenet Ovenell mancrium quae est ser^ —
jantia domini regis . . . . et debet in venire domino regi unum equum et^
^1
9 c
X.] Tenures by Sergeanty. 233
This was a petty sergeanty for the same reason as in
the foregoing case *. los b. *
It appears from the Escheat KoUs f that part of the t Cai. Ge-
estate thus held in Wavering consisted of rents-service
(which have been shewn before to descend in the same
way as the manor so long as they are appendant to it) ;
and that the widow of Kobert de Hougham was endowed
of a third part of the rents, not being descendible as gavel-
kind ; also that the widow of Eobert de Hougham, son and
heir of the foregoing, entitled her second husband to be
tenant by the curtesy of the whole of her estate, instead
of a half as in gavelkind, and that he held other lands and
tenements in gavelkind.
It could be shewn in the same way, by an examination
of the Escheat Rolls, in the case of each estate held by
sergeanty, that the descent to heirs, and the tenancies in
dower or by the curtesy, quite preclude the notion that
^ny of them were considered to be of a customary nature.
Wilmington, an estate in Boughton Aluph, was also
bteld in petty sergeanty, soil, by finding a meat-hook for
Ae king on all visits to the superior manor of Boughton
^uph:{:. It is entered in the Testa de Nevil as a sergeanty J Hast.vii.
oield of the Earls of Boulogne by the service of being the
ElarPs chief cook §. But in course of time the term ser- § ib.p.219.
geanty was restricted to tenures of the king ; at first the
Archbishops of Canterbury, and other barons, affected to
bestow sergeanties of both kinds upon their vassals. These
t:enures were in reality nothing but simple knight-service
anum saccum cum brochi& in exercitu Wallice." — {Rot. Hundred^ i. 215,
^ Edw. I. 7; Blount, Anc. Ten. 61.)
For Wavering, see Inq. post mort. Rob. Hougham, 2 Edw. I. 14, and
29 Edw. I. 48; and of Wm. de Chilton, 31 Edw. I. 14 : Hast. iv. 341,
345.
234 The Tenures of Kent. [chap.
or simple socage, according to the regularity and the
dignity of the services reserved.
In this way the Archbishops of Canterbury made " grand
sergeanties" of the offices to be performed at their conse-
cration and enthronement, and some of the greatest noble-
men held lands of them by the service of attending as
butler, steward, or cupbearer on these occasions ^
The Earls of Gloucester held of the archbishops as
" high stewards" the Castle and Lowy of Tonbridge, and
the neighbouring manor of Handlow. As " chief butlers'^
they held the manors of Brasted, Vielston, Horsemonden,
Melton, and Pettes. At the same date (a.d. 1264) Lord
Badlesmere held Hothfield by the sergeanty of being
chamberlain. The manor of Horton was in like manner
held by the cupbearer, and that of Chartons in Famingham
• Ha8t.vm. by the chief carver *.
190
These manors all formed part of the archbishop's barony,
and being held of him by knight-service were of course
not gavelkind, as was shewn in the last chapter as t^
Brasted particularly, in the proceedings against the Ea^rr
of Sussex "".
The extent in past times of the tenure of petty sergeant;;^
has this importance in our own time, that it has tender
* Somner's Canterbury, ii. 20 ; Dugd. MonaBticon^ by Ellis, vol. i
Cant. Appendix, Harl. MSS. 357 ; Hasted, xii. 535, 540.
''Non prcetereundum est specialia quecdam servitia etiam privatis e3^^^
hibita serjantias olim nxincupatas.*' — {Spelm. Gloss. Serfantia; Nichol -^
Britton, ii. 5, 10.)
" The manors wbicli were retained by the archbishops in their ow — ^^
hands are thus enumerated by Hasted : — " Aldington. Bexley, Bishop^^^
bourne, Boughton, Charing, Dale. Gillingham, Liming, Maidstone, North^^
fleet, Otford, Petham, Reculver, Saltwood, Teynham, Westgatc, ^^est:^'
halimote, Wrotham, and Waltham." — (xii. 547.)
These manors with their demesnes, &c., were held by barony, and
the hands of under-tenants by knight-service.
X.] Tenures hy Sergeanty. 235
to pro pM[ate the n otion that all land in Kent is gavel-
Many estates held by a military tenure at first were
afterwards converted into sergeanties, and were thence- ^
forth held in socage.
In the same way we have seen that more than a hun-
dred estates held by the military services of castleguard
were changed into a tenure by rent-service to guard the
castles. By this ch angeln mos t' cases theylSecame so cage.
Thus me number of estates^ actually held by knight-^
service was continually decreasing, for the same change
was being carried out in other ways at the same time.
Although nothing can be clearer than that a conversion of
a military to a socage tenure in historical times has no
effect at all in making the land gavelkind, yet it is easy to
see that an increasing difficulty may have arisen in dis-
tingnifth ^g ^ etween the socage jvhifib is gavft lkindj and
Qie socage which jsjipti - — -
CHAPTER XI.
Tenure in Francalmoigne.
Francalmoigne at the Conquest. — ^Distinctioii between thig tenure ct*!"' I
Gktvelkind.— Grants in perpetual alms of Gavelkind lands. — Gene^^^
rule. — Escheats to a Lord holding in Francahnoigne. — ^Borough ^
Stokenbury. — Present limits of the tenure. — Alienation in fee-farm,- — "^
Creation of a new socage tenure. — Case of the Manor of WES^''
WELL.'—YaxI^ notices of the tenure.— Suit of Be Bending% v. Fr^^^
of Christcliurch. — Real nature of the claim. — Charter of Edward tJ^^
Confessor. — Remarks on the case. — Opinion of Somner. — Confuai^c 3»^
between Socage and Franopteoigne.— Manor of LITTLE CRAR^^^
,^^,^ I SEXTEIES.ZmSOIiE.'iMe^OTSongmsLilymTTBnotlm
r^ I heoome (h.YoM^t-SITEZBJFICIl, JFABEROENE.
We may now turn to the history of those nnmerow::^"-^
estates in Kent which anciently were held in free alms ^^i^^
francalmoigne.
An earlier chapter shewed the opposite nature of tenur*^^^
in francalmoigne and gavelkind before the Conquest. Tfc=*-*
one was socage, the other ^'free from all earthly service ^^-
the highest among the high allodial tenures. It was she^^^^"^**
also that in each manor owned by the Church the d^^'
mesne lands were held in free alms allodially, and tfci^^
tenemental portions alone charged with socage rents aa
services.
When the English feudal system was perfected, by far
the larger portion of the allodial lands of the Church was
rendered liable to military service. After this time the
prelates and monasteries held their demesnes for the most
part by barony or knight- service, so that there is no need
here to recapitulate the arguments for the freedom of such
land from the customary qualities of gavelkind. To use
^^^. il" Taan n FnmcaJnmijnf.
* oommoii plumsie, tiiese are among " the ancient knight-
But we hare now to consider the nature of those manors
'wtich were not feudalized, but left to retain their ancient
fieedom% and to remain as nearly allodial as the la>v
'Would sufEer, Le. to be held iji capik in francalmoigne^
Of the Chnreh lands held in Kent by the Archbishop
<^ Canteibaij, the Bishop of Eochester, the Abbots of
St. Augustine, Battle, and Ghent, and the Priors of Om*
terbmj and Boehester, all but the estates of the priors
last named were feudalized in the manner above mentioned.
£wen the lands of these priories were includeil by the
I>ome8day eommissioners in the baronies of tlie archbishop
and hiahop respectively; those of the Prior of Christ*
clraich were entered under the title of terra monachorum
Artkiqmcopiy the others under terra ejjiscopi liojrensi^\
But we hare also seen, that shortly after the completion
of the Survey an ancient practice was revived, and the
ostites of the priories were separated from those pwjx^rly
belimging to their respective sees, and the momisteries
c^btained permission to retain their ancient tenure of franc-
*^oigne. This was now a tenure properly so called,
**tliough neither fealty nor temporal services were re-
*^^^cd*, for since the Conquest all lands and tenements • c\v mt.
*^^ holden either mediately or immediately of tho Crewn ;
^*' the tenure is as nearly allodial as is possible, and as
f*"^^^ from feudal services or their modern equivalents as
^ tlie ages before the Conquest. Tho opposition bet ween
^ ntitures of francalmoigne and gavelkind is still as
^^lied as ever.
Of the whole mass of allodium in Kent, part was bur-
^^ed with new services, and in some cases, a little later,
' << Francalmoigne est le pluis haute senico."— (Co. /i'//. Or> a.)
238 The Tenures of Kent. [chap.
with new rents-service; yet this did not make the land
gavelkind: a fortiori^ therefore, the part which was left as
free as before could not become so converted.
But after all, the simplest argument arises from the
legal definitions of the words gavelkind and firancalmoigne,
nor would any arguments be required, if some of the trea-
tises on the subject had not changed the general rule into
the narrow maxim, that "ancient knight-service is in-
consistent with a gavelkind tenure,^' instead of saying that
"nothing is gavelkind which was not originally socage."
It will be shewn briefly how this confusion in most cases
arose.
Meanwhile we know that ex vi termini lands held in
ancient francalmoigne are free from temporal service, and
therefore from all certain service, whether fealty or pay-
ment of rent. Indeed the very reservation of the smallest
rent destroys the freedom of the tenure ^, " for none can
so hold if there be expressed any manner of certain ser-
• Co. litt. vie® t^^t ^® ought to do *."
^^ ^' In the same way gavelkind ex vi termini implies fealty^
rent- service, and an ancient power of distress in the lor^^
^ See Ail. 13 Hen. IV. Rent reserved on a francalmoigne tenancy, »:^=*-
a claim made on the abbot for 10s. rent by reason of his tenure. Cl^-^— "^
discharged because such a tenant cannot owe such a service.
" Un don en fraunkalmoign rend certain rent par an — laquel ne p '^^^
estre dit fraunkalmoigne.'* — {Fitzh, Mesne, 109. See also Mic. 4 Edw.K^^^
35.)
Since the Ueformation the uncertain spiritual services have been
some cases changed to certain spiritual and charitable services, but C^^^
does not aflPect the main argument.
** Albeit the tenure in francalmoigne is now reduced to a certainty, ^^^
seeing the original tenure was in francalmoigne, and the change is ^^
general consent by authority of parliament, whereunto every man is par^^^^
the tenure remains as it was before." — (Co, litt. 95 b. ; 2 Edw. YI. c. ^
1 Eliz. c. 2, 12 Car. II. c. 24.)
XI.] Tenure in Francdlmoigne. 239
of the manor. In other words it is socage, and therefore
Bobinson " confined the description of gavelkind lands to
lands originally of socage tenure."
Thus Somner also, in defining the true sense of the word
gavelkind, as that land for which rent was anciently paid
by the freeholder to his lord, desires his readers to observe
that besides the ancient socage tenures there were in Kent
" divers sorts of land by the nature of their tenure not
eensive or censual (rent-paying), nor of the kind to pay
* gavel/ i.e. such rent- service as arises from ignoble and
plebeian tenures with which alone ^gaveP is conversant;
those lands namely held in alhdio^ in francalmoigne^ in
knight-service, in frank-fee ", and the like *." • somn.
And in another place he shews that the words " tenendum hi^ '
m gavelkind could not have consisted with a tenure in^®"**^^-
francalmoigne, which excludes the return of all but divine
services and burdens "f." (In another place he confuses t Somn.
socage with francalmoigne, as will be shewn later.) ^' ^'
For these reasons we find in the report of the Eeal
^Property Commissioners the following question, answered
fcy an eminent authority on Kentish tenures (Mr. Bell) : —
*' Are there not some estates in Kent which were never gavel-
:idndP
** There is one description of land on which the question has
^ftrisen^ viz. monastery lands^ which were oot held in gavelkind but
:£n free alms."
The rule, then, which is now to be illustrated, may be
^d;hus expressed: —
All manors^ and therefore all demesne lands, advowsons^
^:atnd rents-service appendant to the seignory^ which were origin
« "Frank-fee'' in Kent usually means all that is not gavelkind; when
^^:«8ed as aboYe in a more limited sense it appears to mean free land con-
"^erted into socage before the Act 12 Car. II. c. 24.
240 The Tenures of Kent [chap.
nally held in francalmoigne^ are now held in a tenure superior
to gavelkind^ and are descendible at common law.
Taking all the lands in Kent which have been held in
this spiritual tenure, we find that they are thus divisible :—
1. Those still held in the original francalmoigne tenure.
2. Those which were originally so held, and at or before
the dissolution of monasteries were given to laymen to
hold either in socage or by knight-service.
3. Ancient knight-service lands given in free alms be-
tween the Conquest and the Reformation.
4. Ancient socage or gavelkind land acquired by tenants
in free alms.
It will be convenient to dispose first of the class last
mentioned, as being least important.
Gavelkind land might be acquired by the tenant in free
alms either by gift or by escheat. In the first case the
land retains its customary qualities in the hands of lay
tenants, although they would naturally have been sus-
pended while in the ownership of the ecclesiastical cor-
poration ^.
In the same way, if the king becomes seised of gavel-
kind land jure coronw^ the customary qualities are sus-
pended, not destroyed.
No custom inherent in the land can be destroyed by
a change of tenure.
In the second case of an escheat of gavelkind land to
the lord of the manor, being a tenant in francalmoigne, the
same rule of law is maintained.
It has been said that a contention was anciently raised,
that such an escheat to a lord holding by knight-service
destroyed the gavelkind customs. The Kentish Custuinal
only mentions lords of manors held by military service
*" Lubhingfon v. Llandajf^ 2 New llep. 491.
XI.] Tenure in Francalnmgne. 241
(" a seigneur que tiene per fee de hawberke ou per ser-
jauneye"); but the words of another record of precisely
the same date are general enough to include escheats fall-
ing to a lord holding by any of the superior tenures.
In the assizes held at Canterbury in 21 Edw. I., before
John de Berwick and the other justices, it was found " by
a jury of the body of the county," that ^* when gavelkind
land escheats to the lords of the fee the tenure is changed :
and in like manner when the land is given back into the
hands of the lord, the services being too heavy for the
tenant, without any expectation of recovering them
(^ quando redduntur in manus hujusmodi dominorum prsB
nimio onere servitiorum sine spe ipsa rehabendi'); but if
the lord should give them back on any conditions, the land
shall be gavelkind again, and any lord may release the
services of a tenant, and yet the lands remain partible
according to the custom of gavelkind "".'^
Eobinson further quoted from "an ancient book of
4 Edw. II., in a nuper oliit^ that if lands, which have been
departible and departed come to the lord by escheat, they
fihall not be partible in hii^hands,'^ or in those of a pur-
chaser from him("vel in manibus alicujus alius perqui-
sitoris non possimt partiri").
But it has long been settled that the unity of possession
ty any lord (whether holding in francalmoigne, in chivalry,
or in socage) " cannot hurt the customs of gavelkind *." • ^^"^^
And in the customary process of gavelet, when prac-
^tised, the land did not lose its customary qualities accord-
ing to the later interpretation of the law; although the
IKentish Custumal asserts that "the lord shall hold the
land as part of his demesnes."
• Itin, Kane, 21 Edw. I. 35, and iOl. 26 Edw. I. 21, B. R.
242 The Tenures of Kent [chap.
It has been, however, held that the customs of gavel-
kind will be suspended while the land is so held. In the
same way it was once doubted whether, where the lord
of a manor purchases customary copyhold land within the
manor, the customary descent will remain. But the cur-
rent of later opinions has decided that no change of
tenancy can interfere with an ancient custom, which has
grown into the land itself.
It is therefore clear that ancient socage lands in Eent,
acquired in any manner by a tenant in francalmoigne, did
not thereby lose the qualities of gavelkind. From which
it as clearly results that the mere ownership of a tenant
in francalmoigne is no bar to the common presumptioni
that the land lying in Kent is gavelkind till the oontrary
is proved ; and the tenure in francalmoigne must be ancient
that the presumption may be rebutted, i.e. more ancient
than 18 Edw. I., the latest date at which this particular
tenure could be created, except by the Crown : more an-
cient even than the reign of Richard I., the time of legal
memory, for the title must be taken back to the date of
the Conquest, when the privileges of gavelkind were con-
firmed. This can be done by the help of Domesday Book
in almost every case of importance.
Gavelkind land granted in francalmoigne owed no ser-
vice; but services of several kinds are implied by the
word gavelkind. The answer to this apparent contra-
diction may be found in Littleton : —
" And note, that where such man of religion holds his tene- -
ments of his lord in francalmoigne, his lord is bound by the law ^
to acquit him of every manner of service which any lord para- —
§ 142 . '"^^^t will have or demand of him for the same tenements ; andX
Co. litt. if he doth not acquit him, but suffereth him to be distrained, &c.,^ -
F. n! B. ^^ ®^^^11 have against his lord his writ of mesne, &c. *
135.
XI.] Tenure in Francalmoigne. 243
"And not of services only, as fealty, homage, rent- works, &c.,
bat also of improvement of services ; as if lie (tenant in francal-
moigne) were distrained for relief. Aid pour fille marier, Aid pour
/aire Jib chevalier," &c.
It is for this reason that we find none of the francal-
moigne lands of Kent charged to the Exchequer for the
aid levied in 20 Edw. III., towards making the Black
Prince a knight, as were all the military lands in the
county.
We now come to the consideration of lands which were
anciently and originally held in francalmoigne, and which
are now held in that tenure, or have come into the hands
of laymen. These, it has been said, cannot now be gavel-
kind. It is of course understood that only the demesnes
are here described, and not the ancient socage portions
of the manors belonging to the Church.
It is found in some cases that an estate of socage lands,
with nothing reserved in demesne, is separately described
in Domesday Book as having been held of a francalmoigne
manor. Here, of course, the whole was gavelkind, accord-
ing to the rule laid down. An example of this kind is
afforded by the case of " the borough of Stokenbury,'' in
the manor of Eastfarleigh and parish of East Feckham.
It was thus described in Domesday Book among the lands
of the Bishop of Bayeux : " Kalph, son of Thorold, holds
of the bishop half a suling in Stokenbury. In the reign
of Edward the Confessor two free men (liberi homines) held
it, as now."
It might be contended that the ownership of these free
jnen is not conclusive as to the gavelkind tenure; they
might be, and were probably " drengs," or lesser thanes.
But it will be observed that nothing was held in demesne
l)y the bishop^s tenant, and therefore we find that ^^all
r2
244 The Tenures of Kent , [GfiAr#
the lands In this borough pay quit-rents,'^ i.e. are garcT
• HaitT. kind*.
1Q&
At the dissolution of the monasteries the king resumed
all the franoalmoigne tenements of the smaller monasteries^
and of the two great priories of Christchurch in Canter-
bury, and St Andrew's in Bochester. Immediately after-
wards he granted a great portion of the lands and tene-
ments so resumed to the Deans and Chapters of his newly
constituted Cathedrals of Canterbury and Bochester^ to
hold as before in francalmoigne (in puram et perpetnam
eleemosynam). The services due to him, his heirs and sue-
cessorSy were somewhat changed; instead of pi-ayers for
the souls of the donor's funily and suceessors, the tenante
are bound to carry out the donor's charity, by performing
divine service, educating children religiously, and dis-
pensmg alms to the poor. The burden of the trinoda
necessitas was laid upon the tenants according to the old
law; they were therefore bound to contribute from ^mx
revenues to the building and repairing of roads and
bridges '.
The manor lands and tenements thus given, which had
been held in francalmoigne by the monasteries of Christ-
church and St. Andrew, are thus held as freely as the
former tenants held them at the time of the Conquest, and
^ '' Ut in postenim ibidem sacrorum eloquionim docomenta et noetriD
salutifersB redemptionis sacramenta pure administrentur, bonomm momm
disciplina sincere obseryentur, juventus in literis liberaliter institaatar,
senectus Yiribus defecta . . . rebus ad victnm necessariis condigne foyeatur,
ut denique eleemosjuarum in pauperes Christi elargitiones, yiamm pon*
tiumque reparationes, et cetera omnis generis pietatis officia iUinc ezu-
beranter in omnia yicina loca longe lateque dimanent . . . dedimus et
concessimusy &c. habendum tenendum et gaudendum . . . decano et capitolo
Ecclesise Cathedralis et successoribus suis in perpetuum tenenda de nobis
heredibus et successoribus nostris in puram et perpetuam eleemosynam/'
— {Letters Patent granted to the new Cathedrah, 31 Hen. VIII.)
XI.] Tenure in Francalmoigne. 245
.can have had no customary qualities superadded to them
by the grant just quoted. In case, then, any of these
estates should at some future time be separated from the
cathedral possessions by sale, exchange, or any other
means, it will be sufficient for the lay owner to shew the
free tenure at the Conquest by an extract from Domes-
day Book, and at the foundation of the cathedrals, by
a reference to the particulars of the Letters Patent just
mentioned. It is of more importance to our present in-
quiry to consider those estates which, either before or at
the dissolution of the monasteries, were aliened by the
tenants in francalmoigne to laymen, or resumed by the
Crown.
The most usual courses of such alienation before the
dissolution of monasteries were these : either the land was
aliened to a tenant in fee simple, reserving a fee-farm
rent, or to a like tenant in consideration of military ser-
vices, or it was exchanged with the Crown for other lands.
As a general rule the tenants in francalmoigne might not
aliene their lands without very special license*; but the
Kentish tenants, of whom we are speaking, were found in
the reign of Eling John to have possessed the privilege
from time immemorial ^.
The first mode of alienation mentioned must have been
used before 18 Edw. I. to be legal, the statute Quia Emp-
tores forbidding any one to aliene land to be held of the
alienor and his heirs.
The effect of the alienation was to create a new socage
tenure by fealty, " being the lowest and least tenure the
law can create, because fealty is incident to every tenure
« Magna Charta, 9 Hen. III. c. 36, 18 Edw. I. c. 1 ; Book of Entries,
119; Mic. 45 Edw. III. 118; 24 Edw. III. 71 ; Dyer, 109.
'^ Abhrw. Plaeit. Corona, 56, Pasch. 9 Johan. 2. Cant.
246 The Tenures of Kent. [chap.
but francalinoigiie : and the law, according to equity and.
justice, gives this fealty to the lord of whom the land was
• Co. utt. before holden *." In the same way a transfer of the
98 a. 99 b • •
'seignory converted the tenant in francalmoigne into a
tenant in socage owing fealty.
There is a very early case, which shews not only gene-
rally that lands originally held in francalmoigne were not
gavelkind, but also specially that an early conversion of
the tenure into socage would not change the tenure to
gavelkind^ either in the hands of the alienee, or afterwards
if resumed by the original tenant.
The case has been mentioned by Ducange (title, ' gavel-
kind') and by Eobinson in the "Treatise on Qtivelkind."
A copy of the proceedings had previously been taken by
f Gav. Somner -f from the archives at Canterbury, to which Hasted
177. ' refers in his history. This copy, however, was inaccurate
in certain particulars, and was not besides received as
a primary authority. It has therefore been thought better
to extract the whole case from the original record, the
writer having had occasion to procure an office copy
of it.
The upshot of the claim made will be seen to have been
the same as was put forward and refuted in Gouge v. Woodin^
cited above, viz. that an early change to socage converted
the land into gavelkind.
It has also been thought expedient to add other early
notices of the land in dispute, which serve to explain some
points in the history of the manor, which were not made
clear by Uastcd and other historians.
The property in dispute consisted of the manor of
Welles, or WestwcU, and certain lands within it.
Before the Conquest this estate had been given to the
monks of Christchurch, Canterbury, in francalmoigne, and
XI.] Tenure in Francalmoigne. 247
was therefore allodium or "thane-land," as opposed to
gavel-land or gavelkind, as shewn in the earlier chapters.
" By whom or when it was given I have not found,"
said Hasted: it is, however, mentioned in Edward the
Confessor's deed of confirmation above described, among
the other estates given in free-alms to that Church by
different kings and nobles \
It was thus described in Domesday Book under the title
of " Lands of the Monks of the Archbishop :" —
"The Archbishop holds Welles. In the time of Edward the
Confessor it was taxed for seven sulings, but now for five. There
are eighteen ploughlands of arable^ four in demesne, and twenty-
one viUani with five husbandmen hold twelve and a-half, &c/'
On the division of the estates of the church of Canter-
bury, between the monks and the archbishop, this estate
fell to the share of the former, being held by them ad
eibumj i.e. for the use of their refectory *. • Hast. vii.
"Their title," said Hasted, "seems to have been very^^^"
precarious, for it was continually contested." This is not
quite a correct way of stating the facts, as will be seen
from the following brief account of the transactions to
which he alludes.
* " Carta regis Edwardi Confessoris de terris in Chertham confirmans
EcdesiflB Christi omnes terras quas ante contulerant reges episcopi comites
magnates. . . . Scquuntur terranun nomina (ex quibus qusedam crasa)."
— (^Cotton, MSS, Claud, A, 3, 5, copied in Kemlle's Codex Diplomaticus,
and EUii Dugd, Mon, i. 99.) The deed in the British Museum is the
original, signed by the king. The names of manors in the schedule
which still remain legible include among others Sandwich, Eastry, Thanet,
Adtsham, Chartham, Godmersham, Westwell, East Chart, Great Chart,
Verehome, Apledore, Mepham, Cowling, Famingham, HolingbomO, East
Farleigh, and East Peckham.
It has been mentioned before that the freedom of the tenure of Adisham
became proverbial, the letters L. S. A. {liherum sicut Adisham) denoting
a perfect tenure in francalmoigne.
248 The Tenures of Kent [chap.
It appears that the Prior of Christchurch in very early
times aliened this manor with its demesnes in fee-farm to
an ancestor of one Matilda de Westwell, to whom the
inheritance descended {cujtis hereditas manerium illud fidt).
The prior retained the seignory of the manor, as was legal^
until the statute Quia Emptor es^ 18 Edw. I. Such an
alienation by a tenant in francalmoigne converted the land
•900.123; into socago *, as we have already noticed,
gs'a.* This Matilda de Westwell married Eobert de Valoignes,
dominus de Sutton^ and died, leaving issue one son, Peter,
named de Bending from another estate. During his mi-
nority he remained in his father^s wardship ; the latter held
the estate of his late wife as tenant by the curtesy of
England, and paid the fee-farm rent to the Prior of Christ-
church as superior lord of the fee, thereby acknowledging
his title subject to the newly-created tenure in fee-fSEurm.
This appears not only from the legal proceedings below
recounted, but from an entry in the Close Rolls, 17 Johan.
m. 6^, to this effect.
" The king to Hubert de Burgh, high justiciary of England, &c.
We coram and you to pay to the prior and monks of Christchurch,
Canterbury, their fee-farm rent from the manor of Welles, now
in our hands by reason that Robert de Valoignes, their tenant
of that estate, is in rebellion with our enemies ; notwithstanding
this let them have the rent, though Robert de Valoignes himself
be with our enemies V* &c.
^ p. 254 of the volume of extracts published by the Record Com-
missioners.
* Eot. Claus. 17 Joh. m. 6: "Rex Hub. de Burgh justiciario An-
glian, &c. Mandamus vobis quod habere faciatis Priorem et conventum
S. Trinitatis Cantuar. firmam suam dc manerio do Welles, quam tenetis
in manu nostra eo quod Rob. de Valoignes qui fuit corum firmarius
ejusdom villac est cum inimicis nostris, ct nihilominus illam eis habere
faciatis licet ipse Robortus cum eis fuerit. Teste me ipso apud Col-
chester xix. die Martii/*
XI.] Tenure in Francalmoigne. 249
This Bobert de Valoignes was restored to favour early
in the next reign, as appears by the Close Kolls of
9 Hen. HE., but does not appear to have been restored to
his tenancy of Westwell thus forfeited ; and in 8 Hen. III.,
his son Peter de Bending, the heir in remainder, released
all his rights in the matter to the Prior of Christchurch,
"for which they gave him a sum of money and their
manor of Little Chart in fee-farm as therein mentioned °."
Three years afterwards another Kentish knight, Stephen
de Harengod or Heringod, claimed to hold this manor
in fee-farm by a writ of right in the King's Court ", but
released all his claims in the same way in consideration
of receiving thirty marks in silver.
By virtue of the forfeiture of the estate of the tenant
for life, and the releases given by the other persons claim-
ing an interest in the estate, the prior and monks held
Westwell in peace, until, in 1241, a writ of dower was
brought by Burgia, widow of Peter de Bondings, claiming
one-half the manor as her free-bench or dower in gavelkind.
"Pkas of the Croum in divers counties^ Trin. 25 Hen. III.,
r.49.
''Burgia^ the widow of Peter de Bandings, claims against the
Prior of Christchurch a moiety of the manor of Westwell as her
free-bench according to the custom of gavelkind, of which manor
she had been endowed by her late husband.
''And the prior appeared and said, that she could not claim
a moiety of the said manor as her customary free-bench or dower,
because he himself holds that manor by virtue of a gift from the
■ "The original deed is in the Surrendon library, with the seal
annexed, on which is the legend Sigil Petri de Bendingies,** — {Hiast.
TiL 414.)
■ Rot. Clans, (p. 205) 11 Hen. III. m. 25 in dorso: "Stephanos
Haringod attomat Johannem de Hokering contra Priorem S. Trinitatis
Cantoar. de manerio de Welles."
250 The Tenures of Kent. [chap.
king's predecessors, who once held the manor in their own hands,
and who gave it to God and the Church of the Trinity (in Can-
terbury) as freely as they held it themselves in pure and per-
• Co. litt petijpl alms (francalmoigne) *."
'' So therefore the manor had never been parted and was not
partible, because the king, who gave it to his (the prior's) pre-
decessors, had not held it as gavelkind °."
''The demandant then asserted that the manor was partible
and held in gavelkind. Wherefore one Robert de Yaloignes, the
husband of Matilda de Welles, to whom this manor had descended
as heiress, after the death of his said wife held one moiety of it as
his free-bench (or curtesy) by the custom of gavelkind.
'' And Peter her late husband held the other moiety (as heir to
his mother).
" Moreover she said that her kinsman, H. Bellet, on her mar-
riage had purchased with his own money the life-interest of
Robert de Valoignes in the moiety first-named for the benefit of
herself and her said husband (so that he had acquired the whole
manor).
''And the tenant, the prior, said on the other hand, that the
manor was not gavelkind, and not partible, and that Robert de
Valoignes had not hejd a moiety as hia customary free-bench or
curtesy p."
° **Placita coram Rege in Divers. Com. Trin. 25 Hen. III. Rot. 49."
In which are found "Placita ct Assisae Captae apud Cantuar. in com.
Kane, in Octav. S". Trinitatis anno rcgni Regis Henrici fil. Johannis xxv**.
Coram W. de Ebor Praeposito Beverley et sociis suis.*-'
Memb. 10, Calehull. "Burgia qua) fuit uxor Petri de Bendinges petit
versus Priorem S*. Trin. Cantuar. medietatem manerii de Westwell ut
francum bancum suum, &c. Et unde pra^dictus Petrus earn dotavit., &c.
Et Prior venit et dicit quod ipsa non potest petere medietatem pnedicti
manerii nomine franci banci quia dicit quod habet manerium illud de
dono pneccssorum domini Regis qui manerium illud aliquando tenuerunt
in manu sua, et qui illud dederuut Deo et EcclesioB S". Trinitatis adeo
libere sicut illud tenuerunt in puram et pcrpetuam eleemosynam. Ita
quod nunquam manerium illud postea parti tum fuit nee est partibile.
Quia dicit quod dominus Rex qui manerium illud dedit prxdecessoribus
Buis non tenuit illud nomine Gavelkindeis."
p " Et Burgia dicit quod pnedictum manerium Gavelikind et partibile
XI.] Tenure in Francalmoigne. 251
The matter was referred to a jury of knights, not gavel-
kind tenants, who delivered the following full verdict in
&vonr of the monastery : —
1. That the property in dispute was anciently " a free
manor" {liberum manerium) belonging to the predecessors
of the king.
2. That it had been given in francalmoigne to God and
the Church, so that it was never gavelkind, never parted
and not partible.
3. That the said Eobert de Valoignes had never held
a moiety of it as his customary free-bench ; on the con-
trary, upon his wife's death he had held the whole as
tenant by the curtesy at the common law, together with
the wardship of their son Peter de Bondings.
4. That the sum of money paid by Bellet as aforesaid
was paid in consideration of getting the wardship of the
heir from his father. Therefore the prior was confirmed
in his ownership \ &c.
^^ Ita quod quidam Bob. de Yaleines qui dnxerat in uxorcm Matilda
^^ Welles, cnjus hereditas manerium illud fuit, post mortem ipsius
~*tildaB haboit nomine franci banci medietatem illius manerii, et Petrus
J**" ipsius BurgisB habuit dliam (illam, Somner wrongly) medietatem.
.^^ quod Harveus Bellet consanguineus ipsius Burgiae postquam idem
^t»"Us desponsaverat ipsam Burgiam redcmit illam medietatem per
^^''^aijioB Buos de praBdicto Roberto ad opus ipsorum Petri et BurgiaB. Et
^.'i.o^ ita sit offert domiuo Kegi xx* per sic quod inquiratur, &c.
** Et Prior dicit quod prfiedictum manerium uon est Gavelikind, nee
^^^•^bile, nee praedictus Kobertus unquam habuit ibidem medietatem
^^•^dicti manerii ut de franco banco suo, et quod ita sit ponit se super
*^^triam . E t ideo fiat in j uramentum . ' '
^ •'Jnratores de consensu, etc. veniunt et dicunt super sacramentum
y^'^^Ha quod prsedictum manerium fuit quondam manerium liberum pno-
^^^^^sBsorum domini Regis et quod datum fuit Deo et ecclcsias S. Triri. in
^^^am puram et perpetuam elecmosynam. Ita quod manerium illud
^^^quam fuit Gavelkind nee partitum fuit nee est partibile. Nee pnc-
^clua Kobertus unquam habuit medietatem praedicti manerii nomine
L
V
252 The Tenures of Kent [chap.
There are several points in this case which require
notice, besides the broad conclusion.
I. Eobinson mentions the case in his chapter on tenancy
by the curtesy, but only to notice the claim to a moiety
without any mention made of children by the marriage.
The form of the plea corroborated his just opinion that the
widower is entitled to his customary estate by curtesy, or
free-bench, whether issue were bom of the marriage or not
In the latest edition of Eobinson's treatise Somner's copy
of the case is extracted in an editorial note. A doubt is
expressed whether the finding in Doe dem. Lushmgton v.
Llandaff ^OQ^ not contradict the position respecting "an-
cient francalmoigne tenure." This will be shewn to be
groundless when the last-mentioned case is discussed later
in this chapter. It is a doubt which was not felt by
Bobinson for the simple reason that he had already defined
gavelkind to be ancient socage and nothing else, and firane-
almoigne cannot be socage. It may seem at first sight
strange that he should not have enlarged upon a case
which is important enough to affect the titles of several
estates, were an endeavour to be made to dispute its con-
clusion. We may, however, remember that he was writing
very specially of gavelkind lands in Kent, not of the lands
which were never gavelkind. Further, that the authoritj
of the case had never been called in question, nor w^
there even an authorized record of it, so that there was i>^
reason to discuss its validity. There are two other thin^
to be remembered. First, that when Robinson's treatL^
franci banci. Scd dicunt quod post mortem proedictaB Matilda ten^^
idem Robertus totum manerium cum custodiA praedicti Petri. Ita qu
pnedictus Herveus dedit ei quandam summam pecunioB pro custodia il^^
Et ideo consensum est quod Prior tcneat sine die. Et Burgia in mise^^
cordiH pardonatur."
XI.] Tenure in Francdlmoigne. 253
was written (to use his own words) ^4t was a common
mistake among strangers to the county that there now
remains in it but little land of the nature of gavelkind ;"
wliereas now it is generally assumed that the whole of
Kent is subject to the custom. But the most that this
emin^it writer asserted was this : ^^ I believe I should not
seem much mistaken, were I to assert, that there is now
near as much land in Kent subject to the control of the
eostom, as there was before the disgavelling statutes were
made." Secondly, he does not even go into the question
of the extent of lands held in Kent by ancient knight-
senrioe, but on the reading of a record of the date of
18 Edw. n. and of the Stat. 18 Hen. YI. 2, assumes that
very little land in Kent was ever held by military service,
and that " well-nigh all was of the tenure of gavelkind."
It will be shewn in the next chapter how far this conclu-
sion was accurate.
2. As to the plea that ^^ the manor was not partible be-
eanse the king, who gave it to the prior's predecessors,
had not held it as gavelkind, {nomine gavelkindy^ It has
been shewn in the earlier chapters that allodium held
before the Conquest by the Crown or the Church was of
the yeiy opposite nature to that of gavelkind. Such is the
tarae meaning of this plea. Somner, however, drew from
it **this double consectary (admitting the plea for law).
^Chat the king may hold land in gavelkind. That the
^ing holding land in gavelkind, in case he grant it to any
Religious house in francalmoigne, it remaineth notwith-
standing partible as before it came to the Crown, in their
liands at least, whom the religious men enfeoffed with
it ♦." It does not appear that he knew the gift to Christ- • Somn.
ohurch to have been made before the Conquest.
3. The jury found that the estate in dispute had an-
254 ^^ Tenures of Kent [chap.
ciently been a free manor (liberum manerium) in the pos-
session of the Crown. Somner's copy of the proceedings
omits the word '^ Kberum," which is important. Not that
we know of the kings before the Conquest possessing any
" gavelkind manors," which seem to have been created oat
of ancient socage lands between the introduction of the
feudal system and the enactment of the Statute Quia
UmptoreSy and not afterwards or before. But the words
"free manor'' point to the fact that Crown lands at that
early period were allodial, like those of the Church, and
therefore not gavelkind. The finding of the jury that the
manor once belonged to the Crown is somewhat remark-
able, from the fact that no evidence has been preserved at
Canterbury of the date of the donation or the name of the
donor. The gift is simply confirmed, without specifying
particulars, by the Charter of Edward the Confessor.
4. Somner moreover, not being a lawyer ', did not com-
prehend the full bearing of the case, which he had ex-
tracted from the archives. He did indeed "admit th^s
* Gav. p. prior's plea for law*," and he himself distinguished gavel-
kind from francalmoigne very effectually in the passages
lately quoted. Yet in other places he shews that he was — :
puzzled by the erroneous idea that every tenure must b^ ^
either socage or knight-service, a broad division which l— i
perfectly correct as to fo^-tenures, " but leaves still behinc^ -
the other species, of a spiritual nature, namely, francalKI
t stepb. moigne t."
Blackst. A 1 1 . 1
L 226. Among the tenures which are " species of socage, or lan^-J
' See the conclusion of his treatise : ** Many other things cflfer then
selves to his discourse that would treat of gavelkind to the full, but the^^
are (I take it) mostly points of common law, which because they are dc^
only out of my profession, but beside my intention too, I will not wad^^
or engage any further in the argument.'' — {Gav. 170.)
XI.] Tenure in Francalmoigne. 255
said to be of socage kind/' Sbmner appears to have in-
cluded francalmoigne. ^^ It is quit of all service whatso-
ever, as well spiritual (unless uncertain) as temporal. But
because it had not to do with military service on the one
band^ so neither with villenage on the other, and hath its
privilege expressed in that epithet of libera^ it is referred
to socage as in some sort such *." In another place he • somn.
refers to " that dichotomy of chivalry and socage tenures"
by which the lands of all common persons in England may
be distributed f. t ibid. 86.
He appears to have been thinking of the passage in
Fleta% on which Littleton grounded his remark that
" every tenure which is not tenure in chivalry is a tenure
in socage {." "J5fi?r^," said Coke, "A^ meaneth temporal tl'^y^i
services and not francalmoigne^ as ly the examples he put is 86 a.
manifest^ and as in the proper place shall appear more at
.^ . . . • 97—100.
This confusion in Somner's mind between socage and
francalmoigne, the most opposite of tenures, clouded all
the conclusions drawn by him from the case above ex-
tracted, and prevented him from setting out the simple
Tole that nothing can be gavelkind which was not an-
ciently held in socage.
The manor and demesnes of Westwell remained after the
decision above cited in the ownership of the prior and monas-
tery, vdthout any further claim made by the families of the
jTormer tenants. In the roll of proceedings De Quo Warranto^
^taken 7 Edw. I. and 21 Edw. I. (and lately published by
the Becord Commissioners), Westwell appears as one of the
* ** Ex donationibus autem, feoda militaria yel magnam seijantiam non
<xmtinentibns, oritur nobis quoddam nomen generale, quod est socagium.*'
^^FUta, i. c. 8, and iii. c. 14 ; Balrymple, Feuds, 37 ; Wright, Ten, 211 ;
JSamner, Gav, 35, 37, 38, 40, 47, 114, 150, 178.)
\
256 TTie Tenures of Kent [chap.
numerous manors in which the prior had the ancient fran-
chises which had been enjoyed by tenants in francalmoigne
from a period long preceding the Conquest*. He had
also the* right of free- warren over all his demesne laDds,
which was confirmed by charter in 1 Edw. II. After the
dissolution the estate was granted to the Archbishop of
• H«8t.vu. Canterbury to hold by knight-service *, but was resumed
by Queen Elizabeth by virtue of a private Act of Parlia-
ment in her third year. The ownership continued in the
Crown until it was finally alienated to private persons in
the fourth year of Charles I.
The manor of Little Chert was, as above mentioned,
granted in fee-farm to Peter de Bondings. It was there-
fore held in socage by him and his heirs, though the supe-
rior lordship was still in francalmoigne. The manor is
tibid.4i67. still held by these tenures -f. Even an alienation by
tenants in francalmoigne dating soon after the Conquest ^d^at
did not make the land gavelkind, but only socage de- — ^
scendible as at common law \
* Placita de Quo Warranto y 325. The prior was found to have enjoy£<J^:»B^3ed
from time immemorial ** soc and sac on strande and stream, in wood ancEi^-^^^id
jfiield/* infangthief, freedom from toll, jurisdiction over villeins and otheKi^^-iei
tenants, freedom from land-tax, the right of imposing fines for a long lisr^^-iis^
of oflfences, freedom from payments in lieu of military service, and othec^^-*^
extensive privileges.
" A very ancient instance of this is given by Hasted in his account 0^=^ ^
an estate named Sextries in Nackington.
"This was part of the ancient possessions of St. Augustine's Abbey^^'^^7
It was demised in the year 1046 to Turstin, one of the abbotis househol(^> -^'^^
and was afterwards sold and alienated from the monastery, which acE^-^^^
counts for its not being mentioned in Domesday Book. But in the reigr^^ -^P
of Edward I. it appears by the roll of knights*-fees to have been again i-^ - "
the possession of the abbot, for Natindon is mentioned as his lordship.' — ^^•
—{ITasL ix. 293.)
The entry in the Testa de Nevil is important only thus far. Here wc^ — ^-s^as
an estate once held in francalmoigne, then alienated about the time of tk:^^ — ^^
XI.] Tenure in Francalmoigne. .257
The following is another instance of an ancient franc-
almoigne estate alienated and afterwards declared not to
be gavelkind.
The manor of Sheldwich was given to the monks of
Eeculver in very ancient times *'free from all earthly pay-
ment," excepting only the Trinoda Necessitas^ — or in other
words, to hold in francalmoigne. Shortly before the Con-
quest the estates of this monastery were given to Christ-
church in Canterbury, but there is no special record of
this manor in its archives. Hasted wrote that he " had
not seen how the manor passed afterwards until the time
of its becoming the property of the family of At-Leos in
the reign of Edward I.* " There are, however, earlier • Hast tL
Dotices of its tenure.
In 26 Hen. III. the Abbot of Faversham was summoned
for requiring Eoger Malraains to swear fealty to him for
the manor of Sheldwich, in the way prescribed for socage
and gavelkind tenements. The abbot maintained that his
demand was just, and insisted that Eoger Malmains, as
well as his father then deceased, had held the said manor
and lands in gavelkind, ("tenuerunt preedicta tenementa
de eo in Kavelicunde"). A jury was impanelled to try
the question, who found that the manor of Sheldwich was
never gavelkind^ but was then held by knight-service at
common law *.
Conquest, and then entered (so far as the seignory was concerned) among
the estates which were descendible at common law. The land seems to
have been gavelkind, and the manor has now ceased to exist.
Linsore, an estate belonging to the abbey, and situated in Upper
Eaidres, was alienated be/are the completion of the Domesday Survey, at
a fee-farm rent, and therefore became socage, in the same way as the
estates in L. Chart and Westwell, just mentioned, and was so held of the
abbot till the reign of Henry VIII. (Hast. ix. 307.)
» Pleas of the Crown, 26, 27 Hen. III. r. 16, 21.
S
258 The Tenures of Kent. [chap, xl
Another illustration of the rule (that these ancient franc-
almoigne lands are not gavelkind) appears in the history
of the manor and demesnes of Warehome, in the parish of
the same name.
This estate was given to the monks of Canterbury in
francalmoigne, a.d. 1010, and was accordingly entered in
the Domesday Survey under the heading "Terra Mona-
Chorum Archiepiscopi." It is there described as one
suling of arable land, of which half was kept in demesne,
and half distributed among the socage tenants.
Some time afterwards this estate ceased to be held in
francalmoigne, and became " lay fee." But like the manor
of Westwell and the others mentioned in this chapter, it
did not thereby become descendible as gavelkind. On the
contrary, it is recorded continuously from the reign of
King John to that of Henry VIII. to have been among
the military lands descendible at common law ^, and did
not become socage before the passing of the general statute
12 Car. II. c. 24.
^ Hast. viii. 367. Held by knight-service of the archbishop in 12, IS
John, Testa de Nevil; Ecd I3ook of the Exchequer, p. 132; In^^p^
mortem^ Eichard de Bedford, 1 7 Edw, I. 20.
CHAPTEK XII.
Tenure in FrancaJmoigne (continued).
Case of LuthingUm v. Llandaff.— Tithes of It OB ME RS RAM,— Hdyow-
aon of UPCffUECR.^MasioTB of GORE, BENSTED, KINGS-
DOWN, POZTOiV.— Ecclesiastical Corporations holding lands by
Mnitary Service.— C^iVOira' COrajr.— Eectory of TOWN SUT-
TOJSr.—MeinoT of HONICHILB, RIVER, WEST LANGBON—
Qneen Ediva's gift in Free k\m^,-^MONKTON, ALBINGTON,
8T0WTING, EAST LENHAM, EAST FARLEIGH.—B\^^MiQ
as to Tenure.— ^^iSr P^CXfl'^Jf.— Absence of Quit-rents from
Demesne Lands. — Tenure by Divine Service. — Somner's Theory. —
Harbaldown Hospital. — Total amount of lands held in Erancalmoigne C
in Sent.
The case of Doe and Lmhington v. Llandaff*^ which has • Bo«. and
already been several times mentioned, has been cited K€p.'49i.
hastily by some writers as an authority opposed to the
rule laid down, that no land is gavelkind which was ori-
ginally held in francalmoigne. Even the latest editor of
Bobinson's treatise expressed a doubt whether the autho-
rity of the judgment in De Bendings v. Prior of ChrisU
church was not impaired by this modern decision.
But a very brief examination will shew that the doubt
ia* no solid foundation, and that the reason of the older
UL^gment is in strict accordance with that of the more
modern. The application of the same rule produced dif-
^^xrent result in the two cases, because the circumstances
'^^re utterly diflferent.
-Aji ejectment was brought in the Common Pleas, Trin,
S 07, to determine the tenure of the rectory and tithes of
^odmersham, part of the estate of the Kev. James Lush-
*^^ton, then lately deceased. The rest of his estate in
26o The Tenures of Kent. [chap.
Tong, Bapchild, Milton, Kodmersham, Swade, Murston,
Kingsnorth, Mursham, and Sevington, had previously been
found to be gavelkind ; but it was said that this rectory
and the impropriate tithes ought not to be presumed to be
of the same tenure, because the rectory had been very
anciently in the ownership of an ecclesiastical corporation
(the Knights Hospitallers), and therefore might not have
been gavelkind.
We know that by the presumption of law all lands in
Kent are held to be gavelkind until the contrary is proved-
this proof might have been in the form of shewing that
the land was held in francalmoigne at the Conquest^ but
nothing of this kind was shewn.
The manor of Rodmersham was part of the king's manor^sH
of Milton, and therefore of the nature of ancient demesne.-^ ^.
There is no evidence that the inferior manor was ever any — ^-
thing but gavelkind, as the demesne lands of the superioHt <^)r
manor did not extend into the parish of Bodmersham. Irl^Bt
was therefore held with justice to be gavelkind.
The manor and all the lands within it being of UntJtJi^
nature, it is clear that the advowson was also held vm^^^
gavelkind, being of the same tenure as the demesne land .K^ds
of Eodmersham manor.
It was shown that Ilenry II. gave the church of Rodfc^ ^"
mcrsham to the Knights Hospitallers, being then a chap€E^^^>^l
• Hast. vi. dependent on the mother church of Milton *• That th^^^^*^^
120.
knights appropriated it in the reign of Henry IV., kx*^ — ^*
1408, to their preceptory in West Peckham, where the; ^^^7
held lands by military service. That at the dissolution c^ ^^
the hospital in 33 Hen. VIII. the fee of the rectory c^ ^^
Eodmersham, with the advowson of the vicarage, witjp ^^
taken by the Crown, and granted three years afterwarc^^^^
to John Pordage, Esq., to hold in capite by knight-service^^^^^-
y
xn.] Tenure in Francalmoigne. 261
But it was not shewn that the manor and advowson
were held at the time of the Conquest either by knight-
service or in francalmoigne, or even that the Knights
Hospitallers had held it by the latter tenure.
Beliance was apparently placed upon the antiquity of
the gift in the reign of Henry II. But it was perfectly
well known in those early times whether lands were gavel-
kind or not, and there was no reason against giving
a gavelkind manor or advowson in francalmoigne.
The military tenure created by Henry VIII. was clearly
of no value in deciding the case *. It was further held by • Hale,
Comm.
the Court that — Law, 254.
" The lands belonging to this rectory cannot be distinguished
from other lands in Kent. The law of gavelkind is unUke other
customs. It is not good if it begins only just before the reign of
Richard I. This custom existed long before such other customs,
and almost before any history of England. The real history of
the custom in Kent is that the Conqueror granted to the people
of Kent their existing rights, and permitted them to retain their
ancient laws and customs. The descent by gavelkind (partible
descent) was probably the rule throughout the kingdom.
"That being the case, the appropriation in any subsequent times
of any portion of land to a religious house will not alter its nature.
While in possession of the house it could go to no children, but
as soon as it was granted by the Crown it must have been holden
ack^ording to its ancient tenure. The custom of gavelkind then
attached, and among other things a descent to all the sons equally.
" As to the question of the tithes impropriate issuing from the
land^ now decided to be gavelkind, it is an established notion
of law that a layman was incapable of having any tithes until the
dissolution of the monasteries, and till that time that tithes could
only belong to the Church ; it is impossible that there could be
any ancient descent with respect to them. They could not descend
from ancestor to heir because they could not be in the hands of
any private individual. As to the tithes, therefore, they must
262 The Tenures of Kent. [chap.
descend entirely to the eldest son according to the roles of descent
at common law/'
• Book L A similar case was quoted by Kobinson * from Hughes*
"Abridgment:" —
'' A man was seised of tithes of com arising out of the manor
of D, which is horough-English. The question was, who should
have them, the eldest or the youngest son. The opinion of the
Court was that the eldest should have them, because tithes do
not come naturally out of the land, but by manual occupation.
Also of common right tithes are not an inheritance descendible,
and by the statute of monasteries only it is that they are de-
scendible to heirs."
It will be immediately seen that the question decided
in Lmhington v. Lhndaff^ was not whether lands oriffinatty
held in francalmoigne can be gavelkind, but this, whether r
lands once held in francalmoigne shall be presumed not to ^
be gavelkind without further proof. And it is further "^
to be remarked that it was only suggested that the Knights ^
Ilospitallers held this land in francalmoigne, but noti*^
proved. The case would have been the same if the cir "
cumstances had been thus narrated : " Lands were in the^^
possession of a military tenant of the Crown in the reign-Mix:
of Henry II. They are not described in Domesday Book,^:^
and there is no disproof of a gavelkind tenancy : but they^"^-
might not have been gavelkind when the military tenants ^
acquired them ;" and if a claim had thereupon been set upj^^
that the common presumption as to lands lying in Kent^x:^
should not apply. This is not merely a redudio ad absur^^^
dmi of the argument used in the case, but it is the argu— ^t
ment itself as reported. What then is to be made of thiss i
sentence in Comyn's '^ Digest," *' Francalmoigne lands sur— ^^
rendered at the dissolution of monasteries are gavelkind r
XII.] Tenure in Francalmoigne. 263
see Lushington v. Llandaff^^ ? It is clear that it is only
partially true. Fully expressed the rule would read thus :
* Landf of which the original tenure is not known^ or which,
being gavelkind^ were granted in francalmoigne^ and sur-
rendered, &c. are gayelkind.' But lands proved to have
been originally held in francalmoigne are not gavelkind,
for nothing is of that nature but ancient socage, or what
is presumed to have been such.
It is easy to find instances corroborating the principle
of the decision in Lushington v. Llandaff. As for example,
to shew that a very early ownership by tenants in francal-
moigne was consistent with the customary nature of the
tenement, we notice that the advowson of TJpchurch (an-
ciently called De la Gare) was granted in free alms to the
alien abbey of Lisle Dieu, about a.d. 1187. This advow-
son must have been of the same tenure as the demesnes
of the manor on which it had been appendant, for reasons
stated earlier.
But we learn from the published roll of pleas De Quo
Warranto^ 362, that the manor and demesnes of De la
(Jare were held in gavelkind by Eoger de Leyboume, who
indeed disgavelled it by special permission of the king
among his other lands and tenements in Hartlip, Bain-
ham, and TJpchurch, the charter of permission remaining
among the Patent Eolls. Therefore the advowson which
had been given in francalmoigne was held in gavelkind,
and in lay hands would be partible among the male heirs
in descent.
Or take the case of Densted, in the parish of Chartham.
This manor was given to Harbaldown Hospital, by Hamo
de Crevequer, lord of the fee in 47 Hen. III., to hold in
perpetual alms ♦. Henry VIII. gave it to a private person • Hot rii.
to hold by knight-service in capite, and it has always been MonaHie.
tL 668.
264 The Tenures of Kent. [chap.
treated as gavelkind, having, according to Hasted, been di-
vided by co-heirs male in 1773 *.
The manor of Kingsdown, by Sittingboume, affords an-
other example of the rule laid down in Lushinfftan v. Xfon-
daf. All that we know of its early history is, that Hubert
de Burgh, Earl of Kent, gave the estate to the Maison
Dieu at Dover in free and perpetual alms. Being granted
out by the Crown in a military tenure after the dissolution
of the religious houses, this estate was still treated as
gavelkind, no proof of an original free tenure being forth-
• Hast ?i. coming to rebut the common presumption. Accordingly* "^
it was divided among co-heirs in 1781.
Mere ownership by an ecclesiastical corporation is of *^kf
course no proof of francalmoigne tenure. The original Jlil
grant may have well been in perpetual alms only, whidi, ^^
as we have seen, was consistent with the payment of gavel Mr
kind rents. Or it may have been a grant reserving mili — -i^i-
tary service, as the manor of Polton was given to th^^^nie
Abbey of St. Eadigund, Bradsole, to hold by guard ot^z^of
t3fo»<w6V?. Dover Castle ^t« Several abbots and priors were tenants-J^^^its
vi. 939 •
Hast. ix. by castleguard rent of the same castle, and most of th^-MzChe
Knights Hospitallers' land was held by military service.
We cannot assume that any estate was held in francaU-^i^al
moigne, and whatever the tenure of the ecclesiastical cor:x:^::>or
* Hasted does not account for the whole of the estate. Part doubtle«''^-tl^^
■was held at common law if it is coiTcctly said, that **R. BovehatchC^o-::*<ih
being convicted oi felony^ forfeited his lands in Denst<jd.** If they "SR^-m-n^^^^^
gavelkind they would not have been forfeited, by the maxim, "the fatho-c^^ihe
to the bough, and the son to the plough." The case is different if thc^ ^«^-^<*J
were forfeited for treason.
^ The manor was originally in knight-service, and formed part of tt^ ^^^
barony of Hugh de Montfort at the Conquest. No demesnes are describr^i*' -i^
in Domesday Book, therefore all the land was gavelkind. Other gav^ "^ rc/-
kind lands in the same parish were granted in francalmoigne to tW zM'this
abbey as early as a.d. 1191.
m.] T m mn m Framiiximmgnc, 265
poratioii nu^ bsve been, iiie oamman prufeuiiuption wiH be
applied, nnleBB proof be prodaoed of a temne snperiar to
socage, and aa anient aa tbe Canqnest.
When Budli proof is .given, iiie preaumjitian falls to tbe
ground. Elae ire are driven to imagine a customary
tenure areaied at Hie ttme of ibe diasohitum of monasteries,
for it is mamfestly inqKiBBible Ibat ibe aome estate sbotdd
have been beld £rom Ibe Canqn^ost to Ibe Eeformation in
a snperiiir and an inferior tenure (e^. femealmoigne and
socage) simnhaneonshr.
Ym tbese reasons mter alia we cannot agree in the
doobt expressed by the learned editor of Itobinson's
treatiae (last edition) to this effect: ^^Tbe finding of the
jury in De Bendimffs x. Friar of Ckristcimrch^ appears to
be at Taiianoe vritb the decision of the Court of Common
Fleas in iMdmgtm t. LUmdaff*?'^ • p. fi.
The proof just mentioned mar be ^Ten in different
iraySy ertber by shewing an origxnal and eontinuouB tenure
in franeabnoigne, or if that be impossible, then an original
militjuy tenure before the gift in francalmoigne. The
abaenee of this last evidence was the cause of failure in
tiie argument based on an early ownership of the advow-
scm of Bodmersham by the JBaiights HospxtaQers.
Any history of Kent will furnish iustances where such
proofis eonld be produced. Thus Canons' Court, in Wat-
lingbury, was of ancient military tenure, and was given
in free alms to the Prior of Leeds in the reign of
Henry EQ-i" Again the manor of the rectory of Town-^HMt
Sutton, with the advowson, was originally appendant to"^*"
the superior military manor of Town Button ; and in
9 BiidL n. was granted to the same prior in francal-
noigne, whose successor held it at the Beformation %. xiSmiLJOk.
^TintMiAr estate originally held in barony and then
266 The Tenures of Kent. [chap.
granted in francalmoigne is the manor of Honichild in
Hope. It was held by knight-service from the first owner-
ship by Hugh de Montfort, at the Conquest, until it was
given in free and perpetual alms to the Maison Dieu at
Dover in 31 Hen. III. It follows, therefore, that the
manor and demesnes are descendible at common law.
By a process between the Prior of Dover and the rector
of the parish in 1318, of which the details are given to us
• voLviii. by Hasted ♦, the tithes of the demesne lands of this manor
417. . .
were apportioned in a certain proportion still observed.
This fact affords a means of measuring the exact lands
which were held by ancient knight-service.
These old grants of dominical or demesne tithes
often useful at the present day in determining the original^Fl
limits of the demesne lands.
Thus, too, the manor of Eiver was anciently held by^^^
knight-service. It escheated to the Crown in the rei giLm ; a
of King John, and was divided into three parts. One-^3B-
third was given in francalmoigne to the Maison Dieu a"-jEwt
Dover, another in the like tenure to the above-mentionec^ -^d
abbey of St. Eadigund at Bradsole, and the remainin^^M3g
third to Solomon de Chanuz to hold in grand sergeanty;^^^.
We can deduce the freedom of the first two portions fioxrx' ^m
the fact that the remaining third, called the manor cz^ of
Archer's Court, was descendible to the eldest son. Se^^^ee
inquisition post mortem of Solomon de Chanuz quote^^-^^
t Hast. ix. above in the chapter on grand sergeanty -j". One fractio^i:^ -ion
of a divided manor cannot be held at common law aMi:»^-»n^
the rest in gavelkind, though the manor and its include::^ -*<^<^
lands may be of different natures.
The manor of West Langdon (anciently called Monte^-^s
Langdon) was held originally by the military tenure ^ of
castleguard, being part of the barony of Folkstone. M-T//?
m.] Tenure in Franeabmigne. 267
the year 1192 it was granted, with the advowson, in
bancahnoigne to the Abbey of Langdon.
It would be easy to multiply instances, if they were
needed, of lands anciently held in francalmoigne, which
originally were held by knight-service. A full proof of
9uch JEU^ts is enough to shew that lands are not of a cus-
tomary nature : and conversely, if lands were at first held
in francalmoigne and were then changed into a military
tenure, they are held at common law.
Mention was made in a former chapter of the very
large estate given in francalmoigne to the monastery
of Christchurch by Queen Eadgifu or Ediva ♦, a.d. • Somn.
961, and of the confirmation of the gift by the charter
of Edward the Confessor preserved in the Cottonian
Library f. t KemWe
It included the whole or portions of the manors follow- vi. 4i.
ing, viz. Aldington, Mepham, Cowling, East Lenham, East
Parleigh, East Feckham, Monkton, with certain forest-land
in the Weald of Kent. The demesne lands of these manors
iFere very extensive, and being thus held anciently and
originally in francalmoigne are not of a gavelkind nature.
A. consideration of some points in their history is therefore
important for our present inquiry.
Monkton, comprising nearly half the Island of Thanot,
emd Mepham, were held by the Priors of Christchurch in
h!ancalmoigne until the Eeformation, and were then given
to the Dean and Chapter of Canterbury to hold in the
same tenure ±, by whom the extensive demesne lands are t "wt. \\\.
*' "^ , , 366. TiU.
let for terms of years, and the quit-rents from the gavel- 258.
kind tenants received.
The portion of land in Cowling is not particularly de-
scribed in Domesday Book, but the charter of fr6e warren
268 The Tenures of Kent. [chap.
given to the monks in 10 Edw. II. is said to mention
demesne lands held by them in this parish ®.
The manor of Aldington, including at the Conqnest
those of Stowting and Limne, was likewise reserved by
the archbishops, and the tenure changed fix)m fianeal-
moigne to knight- service. It contained more than seven-
teen sulings of arable land, of which a great part was held
in demesne, and therefore not at that time in socage. The
demesnes of Aldington became socage held in^ capite of the
• Lamb, mauor of East Greenwich in 5 Car. I. * * The free tenure
Hf^.viiL of these demesnes is shewn by the Escheat Bolls, e.g»
those of Limne were held by knight-service and not
gavelkind by Bertram de Criol, 34 Edw. I. 37. Accordinss
to Domesday Book they cannot have been much more tT»»i»^ — \
t Ibid, sixty acres f . Those of Stowting were held as freely b^ ^p^^
Stephen de Heringod, mentioned above in the suit otr-^f
De Bendings v. Prior of Chriatchurch ®.
* Hast. iii. 520. It does not appear in the list given in the Jfonastico m - ^^.j^ n,
i. 105, from Cotton MSS. Claud. A. 3, 110; nor in the list of lanc^ -ands
belonging to Christchurch at the dissolution, Valor Eccles, 26 Hen. YII ^ iT
The manor of Cowling was part of the harony of Odo, Earl of Kent, aizKi-^nd
was held of him in knight-service by the family of Butler. Afterwar — ^^-jds
by the Cobhams, as appears by the Book of Aid, as one knight's-fee.
A portion of tithes from the demesnes was given to the monks of
Rochester, soon after the Conquest, in francalmoigne. The land th-MiJlus
identified as being held in demesne by military service is called Wes-^^^est-
brooke. {Regist. Roff. 164, 268.)
^ Vide Gouge v. Woodin, supra.
« Esch. Rolls, 41 Hen. III. 43. For the freedom of this maimer. jnor
and demesnes from customary descent see Ahhrev. Placitortim Corom^^'^^^^
p. 261 {pmissa temp. Edw. I. r. 3), Inq. p. m. of William de Kirkt^— ^^7*
who held them by knight-service 30 Edw. I. 31,
An inquisition ad quod damnum respecting the advowson of Stowtic -Sn^,
settled by Stephen de Heringod on his daughter Christina de Kirkby — =*; ^^
mentioned in the Calend, Geiiealog. p. 649, 31 Edw. I. 119.
/
xn.] Tenure in Francalmmgne. 269
East Lenham was held in francalmoigne before the Con-
quest, partly by the Abbot of St. Augustine's and partly
by the monks of Christchurch. Both portions wore held
by knight-service after the division of estates between the
archbishop and his monks.
East Farleigh remained in the ownership of the prior
and monks *. It contained at the Conquest six sulings • Hast.
and a-half of arable land, of which four ploughlands (out
of twenty-six) were in the demesne of the monastery,
besides half a suling held allodially free of all service
by one Godfrey '. This description includes all the estate
of the monastery in Loose (except part which was ac-
quired in the reigns of Edw. I. and Edw. II.) and in
Linton.
At the dissolution the manor and demesnes, consisting
of 220 acres f, were given to Sir Thomas Wyat in knight- 1 ,Co. En-
service in capitCj and after his execution the demesnes Attaint.'
alone to Sir John Baker by the like service, (1 and 2
Philip and Mary). The manor and demesnes of East
Peckham had been dealt with in the same way. These
laat contained about 120 acres of arable, besides meadow
and wood, and the manor-house or court-lodge^ as appears
by the parliamentary surveys J taken in 1649 of all thetNo.6i.
estates of Charles I.
' Keferring to the description of East Peckham in the Domesday
Survey, it will be found that there also a tenant held half a suling
^about 100 acres) as free allodial land : — ** One of the archbishop's men
^olds half a suling of this manor, and it paid tax with the other lands
Sn iho reign of Edward the Confessor, although it could not belong to
ithe manor except in paying the land-tax, because it teas free land,**
TThese tenants of land which was not socage within the francalmoigne
Xoanor, cannot have been other than the drcngs or lesser thanes described
in a previous chapter. Being allodial, their lands could not then have
>)ecn tributary', i.e. gavelkind.
270 The Tenures of Kent. [chap.
These estates serve particularly well for the illustration
of the rule with which this chapter is concerned.
1. We can trace their descent with precision from a period
before a.d. 961 to the present time. Queen Ediva, by the
deed cited previously, gave them " to God and the church
of Canterbury free from all tribute or secular service,"
except the duties of the Trinoda Necessitas^ a gift which,
as we have seen, created an allodial tenure of francal-
moigne, as distinguished from a gavelkind, socage, or
tributary tenure.
2. Besides the tradition of this gift evidenced by ancient
entries in the cathedral archives (to be found in the Me-
nasticon) and the old pictures and inscriptions before men-
tioned, the monks preserved a copy of her deed, now in
the Lambeth Library, and printed in the Codex Diploma-
ticus.
3. The original "land-books" or deeds of gift signed
by the queen have perished, but the confirmation by
Edward the Confessor remains in the British Musea.^
as shewn above. There the manors of East Peckham a."*^^
East Farleigh are enumerated among others held in fral^^
almoigne by the monastery.
4. They are described, as we have seen, in Domesd-^^
Book, and distinguished into socage land, and allod^^^
land divided unequally between the demesne lands of t^^
monks and the free tenants above mentioned.
5. Another manor (Westwell) thus given and confirmr -^
before the Conquest, and thus described in Domesday Boo.-^^
was aliened in fee-farm by the monks as early as tlC^
reign of John, and the tenure thereby converted to socag;^5
Yet we see by the suit described in this chapter that thc^
change was not sufficient to turn the land into gavelkin X^
because it was not originally held in socage at the Coi^^
XII.] Tenure in Francalmoigne. 271
quest, but in francalmoigne, a tenure of very different
nature, in fact the most opposite of all to socage, which
implies certain and temporal services.
6. We find all the lands which had previously been held
by the archbishop, bishop, and abbots in Kent, charged
at the Conquest with certain services, but of an honorary
or military nature, and therefore of a tenure superior to
and distinct from gavelkind. Among these free military
lands are those which Queen Ediva gave in francalmoigne,
and which were allotted to the archbishop when he divided
the estates of the Church at Canterbury with his monks,
while they by special favour continued to hold by a tenure
superior to barony or knight-service. The letter written
by these monks to Henry II. * extracted earlier, shews also • Somner,
that the archbishop received a large estate in land to per-
form, military service, which would else have been charged
on the demesne lands of which we are writing.
7. By other examples it was shewn that a manor and
demesne given to the Church by a king of England before
the Conquest, and held in francalmoigne at the compila-
tion of Domesday Book, was not of gavelkind nature, but
in the hands of a lay-owner was held at the common law
by knight-service. Clearly, then, were the manors free,
which were held in francalmoigne from the tenth century
until the dissolution of the monasteries.
8. The decision respecting Westwell manor was borne
out by th% judgments in Gouffe v. Woodin, Dionysia NoeVs
Case^ Lennard v. Sussex^ Browne v. Brookes^ and others
abore- cited, which all limit gavelkind customs to land
which was held, or is presumed to have been held, in
socage at the Conquest. And in another way it was con-
firmed by the case of Lushington v. Llandaff in this
chapter, which was decided on the ground that mere
• 2 Sid.
1&3.
272 The Tenures of Kent. [chap.
ownership since the Conquest of land by an ecclesiastical
corporation (whether in francalraoigne or in chiralry) will
not rebut the presumption that at the Conquest it was
socage, and not in francalmoigne or military tenure. Far-
ther, it has been seen that an ancient tenure in capite, such
as that of these manors of the Church, is inconsistent with
a ctistomary tenure (Broume v. Brookes *), as was noticed
by the Eeal Property Commissioners.
9. It will be seen by the Parliamentary Survey of 1649
that in the manors which we are now particularly con-
sidering as illustrations of our rule, there were ancient
quit-rents and heriots payable to the lords of the manois
by all the freeholders of socage, i.e. gavelkind tenure, as
we might expect from knowing that the original services
and payments in kind were generally commuted for quit-
rents in the fourteenth century or earlier. Indeed tbe
presence of a quit-rent is the best evidence that the IsLWi^
was originally socage. It will be found that no qia^it-
rents are payable out of any lands which formed part^ of
the demesnes, whether noAv separated from the seigniory
or not ^.
8 By the Survey of East Peckham, Pari. Surv. 51, in the records of
Augmentation Office, it appears that the Com-t-lodge or manor-house '
the demesnes had been alienated by the Crown, and that there were
able at the Court-lodge the quit-rents due from the freeholders in
socage tenure, in East Peckham and the township of Marden, the ren
hens and eggs from the same freeholders, and a heriot of t^ best li
thing belonging to each freeholder upon every demise or death, or in
thereof a payment of 3s. 4d.
The manor of East Peckham includes the Den of Chillenden in
parish of Marden. In the inquisition taken on the death of W — -
Colcpepper (1 Edw. III.; Lambarde 540, 542; Hast. iv. 377). arc
scribed some of these free socage tenements in East Farleigh and
Peckham, which were held in gavelkind of the priors of Christ church —
** An inquisition taken at Tonbridge before the Eling*s escheat o^^ "^'"
xix.] Tenure in Francdlmoigne. 273
One of these estates, consisting of over 170 acres, of the
demesnes of East Peckham, was alienated by Sir J. Baker
to Aotony Weldon, whose title (says Hasted *) being dis- • ▼oL t.
pnted by the Crown, the Attorney-General exhibited an
infonnation against his heirs, and obtained judgment in
&TOiir of the Crown. The premises were, however, re-
oorered by proceedings on a writ of error by the eldest
son of Antony Weldon^ whose eldest son " inheriting f" t ▼<J.ii.
his father's estates again alienated this property.
Another portion, containing the manor-house and 220
of demesne land in East Farleigh and Linton ^, was t Oo. snt.
held under a £unily settlement by Captain Nicholas Am-us. *''
hurst, who died in 1715. "He, having neglected to cut off
the entail, his three younger sons claimed their respective
shares" as co-heirs in gavelkind from their eldest brother §. S Hml it.
" The entire fee (of the portion last named) after much
diffpute, partly by purchase and partly by agreement,
Tiecanie vested in the youngest son."
This is somewhat remarkable for several reasons. First,
*that a claim of gavelkind inheritance should have been
^he ooimtj of Kent, Feb. 25, 1 £dw. III. The jury declare on their oath
"ttiat the said Walter Colepepper . . . was seised in his demesne as of fee
mX the date of his death of certain gayeUdnd tenements at East Farleigh
^3f the Prior of Christchurch by the service of paying twenty shillings
m-year, and attendance at the three-weeks court in East Farleigh. There
&s a mansion and serenty acres of arable land, . . . and rents to the value of
"ttbirty shillings a-year payable at the usnal quarter days, and a rent
^»f twelve hens payable at the same time. Also that he held in gavelkind
^>f the said prior by the same services a rent of five shillings, and another
^>^two hens in West Farleigh. And that he held certain tenements in
IBivelkind in the ville of East Pcckham of John de la Chequer, as of his
■»>aiiar of Addington," &c., &c. All the sons of W. Colepepper were
'^^Hiiid to be co-heirs of these tenements, and his eldest son of the
* * Ubemm feodum," or frank-fee at Shipbome described later in the same
274 The Tenures of Kent [chap.
put forward. But it must be remembered that much con-
fusion prevailed as to the true limits of gavelkind at that
time. It was not until eighteen years afterwards that the
decision of Gouge v. Woodin rendered it well-known that
nothing was gavelkind, which was not originally socage.
In the next place we must remember, that it was
then a proceeding of the greatest difficulty to disprove
a claim of this kind. The public records were unpub-
lished and for the most part inaccessible, except at a very
large expense of time, labour, and money. Therefore we
read of partitions having been made in the last century of
lands, which were held by military tenure from the Con-
quest. When a claim, indeed, came to trial the evidences
were produced and the freedom of such land affirmed, as
in the case of the knight-service and castleguard lands of
the Earl of Sussex in 1706 and 1709. But in general it
was easier to make a partition without a law-suit. Besides
which, the case rarely arose of an intestate landowner
leaving lands of only one tenure. In general there was ai^
admixture of gavelkind land, which necessitated the ps^'
tition, which was afterwards loosely described as hari^S
affected the whole estate. Instances of partitions of "tS^
kind will be found in the next chapter. In the pre^'^^*'
case we have to remark that no partition among the ^"^P*
posed co-heirs took place.
If the lands had originally been socage, or if they C(^ ^
have been presumed of an ancient socage nature, the ^^^
sumption of law must immediately have taken effect, ^^^^
the lands have been partitioned among the male heirs w^^^'
out further dispute. But they were not socage at fiu--^^-
Therefore the eldest son ought to have taken them all. ^'
seems however that a compromise took place, and -peL^^^f
by purchase and partly by agreement the youngest t>ook
xn.] Tenure in Francalmoigne. 275
all. This compromise may have included other matters
which we do not know, but whether the brothers con-
sidered the land to be gavelkind or not, it is pretty clear
that the land would now be made to descend to the heir
at common law : the publication of Eobinson's Treatise,
Hasted's History, the cases of De Bendings v. Prior of
Chrtstchurchj Gotige v. Woodin^ Lushington v. Llandaff^ and
others mentioned above, (besides the records of Chancery
and the Exchequer now opened to public inspection,)
rendering such compromises unlikely to occur in future.
Having shewn that the essence of tenure in francal-
moigne was freedom from temporal service expressed or
implied by the words libera or 'pura eleemosyna^ it remains
to say a few more words about the spiritual tenure of that
inferior kind, in which temporal and certain service could
be reserved by the donor.
This inferior kind is called tenure by divine service,
and was defined by Britton* under the name of Almoigne*^^*'^^^
or Aumone. " Almoigne is where lands or tenements are
given in alms reserving any service to the feoffor |.'^ y^ ^'^
Such service might be either (1) a divine service cer-
tain, as to feed a hundred poor men yearly or to perform
a fixed number of Church services, or (2) a temporal ser-
vice certain, as to pay rent. The tenure drew with it
fealty, and gave the lord the right of distress for services
unperformed, in both which respects it differed strikingly
from francalmoigne.
When gavelkind lands were given to an abbey or priory
m Kent it is generally found that a tenure by divine service
was created, the grants being only inperpetuam eleemosynam^
and not in liheram or in puram eleemosynam.
This will account for the form of those old deeds of
grant, which have indeed been mentioned in a preceding
276 The Tenures of Kent. [chap.
chapter, by which lands were given to a hospital or other
ecclesiastical corporation "in perpetual alms to hold in
gavelkind ^" •
In the same way this accounts for the reservation of
a " for-gavel V or quit-rent payable to the mesne lord, who
• Somn. made the gift *, which is so frequently found in the grants
184.' ' to the Church of gavelkind lands.
It should be remembered that Somner, though in gene-
ral an accurate writer, makes a great mistake in speaking
of this tenure by divine service. He assumes that these
grants "in perpetual alms and in gavelkind" were crea-
tions of a new customary tenure.
" What/' he wrote, *' shall be said to gavelkind land of noyd
tenure upon the grant of lands^ till then happily holden in demesne,
^ Many of these deeds are said to exist in the Canterbury spchivBB.
Some have been cited in earlier chapters. See BihUog. Topagr, BriUm.
vol. i. p. 236 ; Somner, Gav. 8, 38, 55, 184.
"1. Know all men that I, R. F., have given and granted to God md
the brethren of St. Laurence's Hospital by Canterbury, seven acres of mj
land to be held in gavelkind of mo and my heirs freely, rendering yearly
thence to mc and my heirs forty-two pence for all services." The words
in italics, if standing alone, would have sufficed to create a pure francal-
moignc tenure. *
*'2. Know all men that we have granted to the poor men of Har-
baldowne one acre and a half of land in perpetual alms and to gavelkind,
by the rent of twopence to bo paid yearly on St. Nicholas* Day." (Con-
firmed by the heirs of the donors.)
Compare the deeds extracted from the archives of Cumbwell Priory
by the Kentish Archaeological Society, vol. v. pp. 199, 206, 212.
In the first, land is given " in perpetual alms free and quit of all
earthly service except two shillings of yearly rent." The other two are
grants in francalmoigne '* saving the service due to the king," and ** saving
the foreign (military) service due from the land," respectively. Co. li^^-
74 b.
* For-gavel {Foris-gahulnm) was a rent over and above the rent-servi<*
due to the lord paramount. See a deed reserving an " extra rcnt-sernce
of this kind, and relating to lands in Kent granted by Ilamo DogJ ^
a tenant by divine service. Ellis* Dugd. Motiast, i. 146.
xn.] Tenure in Francalmoigne.
'I /
to one or more persons in gavelkind, as was usual before the
Statute Q^ia Emptores terrarum, until when a man might create
in his land what tenure he pleased, granting out, as Bracton * • Bmct.
said, in socage, what he had before in knight-service and ^ con-
verso t We are here met with a dilemma ; for either the land was
not partible and why then called gavelkind ; or if partible yet it
was not by custom V t^^ll:
^ QaT. 47.
He draws from, the facts a curious conclusion that gavel-
kind does not spring from ancient custom alone, but might
hare been newly created before 18 Edw. I.; that it is
equivalent to socage, and included all land of every tenure
which did not remain continuously held in knight-service
from the Conquest downward, an opinion which the fore-
going chapters and collections of cases have, it is hoped,
rendered untenable, if any one should wish at the present
day to maintain it.
Another passage in Bracton J should have corrected j 874 m.
him, where it is said, ^^ as in gavelkind or elsewhere where
the land is partible ratione terrce^'^ or, in other words,
where the customary qualities are by law inherent in the
land itself.
We cannot hold with Somner's opinion in any way, in
opposition to the well-known dictum or ^^ decantatum^^ of
the law in Kent, that gavelkind must have been originally
socage, and that the customary qualities cannot either be
created or destroyed except by an Act of Parliament spe-
cially passed for the purpose.
The expression " tenendum in gavelkind^^ is no evidence
of the creation of a new tenure, but rather that the land
^as of that nature before the grant.
The strongest example adduced by Somner in support
of his view was a deed, by which the Prior of Canterbury
granted a portion "do dominio nostro in North Ockholt
278 The Tenures of Kent. [chap.
• Somn. tenendas de nobis in gavelkind*." But there is nothing
in Domesday Book to shew that Nockholt was held in
francalmoigne, though the manor of Orpinton was so held,
of which that estate was an appendage.
/ The tenure by divine service was unimportant, so &r as
/ regards the present enquiry, for this reason, viz. that no
I land was held by it at the time of the Conquest so £ir as
: appears by Domesday Book.
Any land, therefore, which in later times was ^given to
an ecclesiastical corporation to hold in this manner must
either be considered to b^ gftYP^^^'^^j or proved to have
been held originally in francalmoigne or a military tenure.
The mere proof of an early tenure by divine service is of
no more avail against the common presumption, than the
. proof of an early, but not original, military tenanoy bj
ecclesiastics.
^""'^While in the ownership of the tenant by divine service
the customary incidents of the gavelkind estate were sus-
pended, but not destroyed, and they revived in the hands
of any layman who afterwards acquired the land ^.
The importance of considering the tenures of those
estates, which were held by the Church in Kent before
the Reformation, will appear from Hasted's account of tti^
number of the suppressed religious houses.
" There were in this county, of the Benedictine order, two abb^-^ ^'
three priories, and five nunneries; of the Clugniac order, 4^'^
priorj^ ; of the Cistercian, one abbey ; of secular canons, five C^
<^\-
^ Compare the language of Coke respecting abbots who held by militr ^^^
service. '* Although by the abbot's death there is neither ward, marrii^^^'
nor relief due, yet he holdeth by knight- service, albeit the lord car3-^^^
have the fruit of it. And if the abbot aliene the land over to a man i*^
his heirs, there is the ward, marriage, and relief revived." — (Ct?. Z/^'-
99 a.)
xn.] Tenure in Francalmoigne. 279
leges ; of regular canons, four abbeys and five priories ; of Domini-
can friars, one priory and one nunnery; of Franciscans, two
priories ; of Trinitarians, one priory ; of Carmelites, three priories ;
four alien priories. Two commanderies of the Knights of St. John
of Jerusalem, and fifteen hospitals, besides several hermitages,
chauntries, and free chapels. These houses were suppressed at
several different times.
"The total ckar revenues of the above monasteries and other
religious foundations in this county, were about £9,000 per annum^
in the reign of Henry VIII.*" * HasL^.
Of these some held their lands from before the Conquest
in francalmoigne, " a tenure of a nature very distinct from
all others t," some from the Conquest by barony or knight- tibid.822.
serrice and in some cases by castleguard. The manors
and demesnes thus held^ave been shewn to be now de-
scendible at common law. The rest held by military
tenure, ixancalmoigne, or divine service, and we have
fihewn that their manors and demesnes are now descend-
ible at common law, or in gavelkind, according to the
proofs producible of the ancient tenure of such lands before
they were given to the ecclesiastical tenants.
CHAPTER XIII.
Tenure by Knight-service.
General rule. — Office of Escheator and Feodary. — ^Esclieat BoUb. — ^Red
Book of the Exchequer.— Te^^a de iVgpi7.— Th e Feodary of Kent— The
Roll of Blanch-lands. — Difficulty of consulting rccoras. — Disinclmation
to enquire into tenures.-^mount of land in Kent held by Knight-
> servicoT— The Statute 18 Henry VI. c. 2. — Circumstances to which
it reftrred. — Trials of attaint.— Consideration of the Statute. — ^Frac-
tions of Knight's-fees. — Lands of the Church. — Lands of the temporal
peers. — ^Examination of Inquisitions poit mortem in the reign of Heniy
VI.— Manors of LAMBERHURST, B ARMING, OTHAM, JEN-
NINGTS-COURT, BUCKLANB, LUBBENEAM, HARRIETS^
HAM, MARZET, KENARBINQTON, COCKRIBE, BRA-
^OCTiJiV^.— Question as to tenure of advowsons.-iTZ COif^, TJS-
LINGRAM, LEVEL ANB, ORLESTON.—Mi^i^ partitiona by
Gavelkind co-heirs. — Woods-court, — Estates of the Earl of March. —
SWANSCOMBE—Earlj history of the manor of ERITE— Trial as
to tenure of EYEORNE.—MURSTOK
Having now examined briefly the spiritual tenures
known in Kent, as well as the higher tenures in chivalry,
as barony, sergeanty, and eastlcguard, it remains for us to
consider the freedom of lands held " by ancient knight-
service" throughout the county from the customary quali-
ties natural to its gavelkind or ^^ ancient socage" portions.
We have laid down the general rule, that all lands an^
tenements descend to the heir at common law, which «■
the Conquest were in a tenure superior to socage; tfa
same rule will now be treated partially, or rather und^^
another aspect, in estimating the value of the maxii
that "ancient knight - service lands in Kent are
partible."
In one sense the maxim has already been fully prov^^^^^
while the tenures of barony, sergeanty, and castlegucrr"^
CHAP, xin.] Tenure hy Knight-service. 281
were discussed. For all the land, which was held anciently
by knight-service, was part of the baronies created by the
Conqueror, and had been part of the allodial possessions
of the spiritual or temporal thanes before the Conquest.
Much, too, of "the ancient knight-service portion of Kent"
was held (as js^e have seen) by sergeanty, and much by
castleguard of Dover and Eochester castles. But several
important cases would be neglected if no more were said
of the tenure by simple knight-service.
Until the abolition of the military tenures, it was well
known in Kent which lands were gavelkind, and which
were not. On the death of any landowner, the king's
officers (the Escheator * and the Feodary) summoned a • Co. utt
jury to report on oath of what lands the tenant died seised,
and by what tenure they were held ; the jurors also re-
turned the name and age of the heir, and his relationship
to the deceased. These inquisitions post mortem were col-
lected and are enrolled in Chancery, in a collection named
tihe Escheat Bolls; and a supplementary series of these
cLocuments, or copies of them, were preserved in the Ex-
cshequer. "They are,'' says the Secretary to the Public
IRecord Office, in his preface to the recently published
^alendarium Genealogicum^ "of such importance as to
I^ave been styled ^ the proprietary map of England,' " and
^ * are the basis of nearly all that we can bo said to know
^^onceming the descent of the baronage of England, of
^he lords of manors, and generally of the owners of the
XandV'
The Kentish historians have always recognised the im-
^X)rtance of these documents, and the readers of Hasted
• A Calendar to these important documents was first published by the
'^Becord Commissioners in 1806.
Gav. pref.
282 The Tenures of Kent. [chap.
and Philipot will find many references to them in their
works. Besides which, these writers, having occasion to
make abstracts of most of those which related to this
county, have left copious notes and memoranda which
are of the highest importance in any enquiry into the
limits of gavelkind.
It was thought necessary by the chief writer upon gavel-
kind to notice all trials, however early, relating to the
tenure of the Kentish lands ; he therefore searched most
of " the records of proceedings before the justices in eyre
for Kent in the reigns of Henry III., Edward I., and Ed-
ward II., and before the justices of assize in the same
• Rob. ^ county, down to the reign of Eichard II. *," besides some
early cases in the King's Bench and Common Fleas. Since
Eobinson wrote, a great number of these early cases have
been published, e.g. in the Abbfeviatio Placitorvm^ and a
reference to the whole is much easier than in his time.
But it would be impossible here to enumerate at length
the additional sources of knowledge concerning Kentish
tenures which have been opened in late years. It may be
sufficient to state some of the results, with references which
will enable those who wish to find out for themselves that
minute history of every estate in the county, for which
this is not the place.
In arguments about the number and extent of the mili-
tary lands in Kent, Domesday Book is of course the earliest
and the greatest authority. But if we had no more than
that ancient record, it would be very hard ever to identify
the particular lands. Fortunately, however, it was neces-
sary under the feudal system to record everything con-
nected with these military estates, that the feudal dues
and duties might not be lost to the lords.
For example, wo have seen that nearly half the knight's-
284 The Tenures of Kent. [chap.
Another good authority is " the roll of Blanch-lands in
Kent,'' in which are set down the names of those estates
on which an aid was levied when, in 4 Hen. IV., the
Princess Blanche was married.
From these and the like sources information may be
gained as to the tenure of each manor in the county from
the Conquest until the abolition of feudal tenures ; and it
is of course easier by a great deal to trace the history of
an estate from the last-mentioned date to our own time.
But before these records were arranged and thrown open
to the public, the case was diflterent. There were con-
siderable difficulties to be encountered in determining the
nature of any lands, except those which had formed por-
tions of well-known and important inheritances **."
Accordingly it was usual to neglect these enquiries, and
to guard against doubt by means of wills and strict settle-
ments, so that the question of tenure might not arise;
notwithstanding which precautions many disputes and
several heavy law-suits have been the result of the un-
certainty as to heirs in cases of intestacy.
The disinclination to enquire into the tenure of par-
ticular lands is partly due to a mistaken impression that
after all there was not much land in the county which
•= Thus when Hasted wrote his history, he said: "The difficulty of
procuring any knowledge in relation to them (descents and changes of
property) becomes every year greater. Whilst feudal tenures subsisted,
and the Court of Wards and Liveries was in being, a complete information
could he gaitied of almost every manor and estate of cofisequ^ice of whi^
any one died possessed, cither by searching that office for the solemn
inquisition, usually styled inquisitio post mortem, taken after the pos-
sessor's death by the king's escheator on the oaths of a jury, &c. ; or by
searching the Escheat Rolls made up from his return at the Exchequer.
The above-mentioned court was abolished at the restoration of Charles II.,
and these helps arc now lost to the laborious historian."
286 The Tenures of Kent [chap.
rather serfs, holding land which, in the eye of the law,
was in the same tenure as the lord's portion. In Kent,
by a special privilege, the cultivators or villeins were, with
few exceptions, freeholders. The same cause, therefore,
which limited the number of copyholders in Kent, limited
also the extent of the estates held by knight-service. These
estates were as numerous here [as in other counties of the
same size, but each of them was smaller. It will be found,
however, that the aggregate of "military lands'' in the
free manors of this county is very considerable. As to
the extract from the record dated 18 Edw. II., we may
remark that there was in fact a great change in Kent from
knight-service to socage, as will be presently shewn.
Socage of this kind was called " frank-ferme," {libera
♦ Co. Mtt. /rma *) ; it was never confused with ancient socage -or
gavelkind.
The whole number of knight's-fees in Kent was, in the
reign of King John, 254. A knight's-fee being then worth
£20 a-year, we see that the aggregate of the estates which
did not lie in gavelkind was about £5,000 a-year, which
must have been a large fraction of the value of the whole
lands of the county, considering the difference in the value
of money.
Of these we have seen that about half were held in
castleguard; the archbishop had twenty-seven, the bishop
of Eochester eight, and the abbot of St. Augustine's
fifteen.
This number of knight's-fees does not imply merely an
equivalent number of manors free from the qualities of
gavelkind. Some manors were held by the service of two
or more knights ; from many others but a small fraction
of the service of a knight was due. The list of those lands
which paid aid to the king in 20 Edw. III. (in the Ap-
288 The Tenures of Kent [chap.
A property qualification was necessary for all jurors in
actions of attaint, scil. an estate of £20 a-year in land.
Within three years of the granting of the privilege
above mentioned, a petition was presented to the king
praying that it might be rescinded, seeing that the thirty
or forty persons holding lands out of the tenure of gavel-
kind were unjustly incommoded by being pressed con-
stantly to serve in these juries of attaint.
This is a very loose description. The records of the
Exchequer at that time specified every tenant of ancient
military land, and defined the amount of his estate with
great particularity. Yet the petitioners describe their
class as consisting of thirty or forty persons. Again, the
privilege had only been used for three years, and it is
extremely improbable, to say the least, that sufficient cased
of false verdicts would have risen in that short period to
sustain the truth of the petitioners' statements. How-
ever that may be, let us see exactly to what the petition
referred.
It is evident, in the first place, that it referred only io
those persons who were liable to sit as jurors in the case5
mentioned. All who were liable to serve must have had
the legal property qualification.
There were then about forty persons who had landed
estates to the value of £20 yearly and upwards, who did
not hold gavelkind \
Of this the statute above cited took notice, and having
shewn to what set of events it referred, we will now
cite the entire passage, and not only the isolated clause
on which so violent a stress has before now been laid.
" Whereas in the Parliament (15 Hen. VI.), &c., it was ordained
that no sheriff .... in actions or writs of attaint of pleas of la^d
^ Lamb., Peramb., 546 ; Somner, Gavelkind, 53.
xm.] ■ Tenure by Knight-service, 289
of the yearly yalue of forty shillings or more, nor in personal
actions, whereof the judgment of the recovery extends to £40
or more, .... should return or impanel in any inquisition or
inquest any persons .... whkh have estates in lands to the yearly
value of £20 or more out of ancient demesne, the Cinque Ports, or
tenure of gavelkind. In respect of which ordinance, seeing that
within the county of Kent there be but thirty or forty persons
at most which have any lands or tenements out of the tenure of
gavelkind, and the greater part of the county, or well nigh all,
18 of the tenure of gavelkind, which persons be constantly im-
panelled and returned in the said actions, therefore be it en-
acted,'' &c.
By this Act the privilege of exemption from these juries
was removed from the tenants of gavelkind.
Now taking the statements here quoted as literally true,
a course against which many arguments could be adduced
from the nature and animus of the petition, we shall yet
see that they prove the exemption from gavelkind of very
large and numerous estates.
Forty persons owned such estates, each to the yearly
value of £20 or more. We are not told how much
more each possessed. That, however, can be ascertained,
if need be, by means of the inquisitions post mortem. Let
OS take the minimum and allot one estate of £20 yearly
to each. Then the aggregate value of their estates in
18 Hen. VI. would be about £800 per annum.
We must now consider what value this represents, after
allowing for the change in the value of money. There
is no need to do this with minuteness : a rough estimate
"^^ill suffice to shew the importance of the question.
The Act of 15 Hen. VI. c. 2, helps us to get a rough
Estimate of this kind. By this act the price up to which
'Wheat might be imported was fixed at 6s. 8d. ; " a point,"
290 The Tenures of Kent. [chap.
says Hallam ^, " doubtless above the average, and the pri-
vate documents of that period, which are sufficiently nu-
merous, lead to a similar result. Sixteen would therefore
be a proper multiple, when we would bring the general
value of money in the reign of Henry VI. to our present
standard ^" This was written in 1816, since which date
a larger multiple would seem to be required. The mul-
tiple, however, which was chosen by Hallam would make
the total yearly value of the estates of these forty persons
to amount to nearly £13,000 of our money, if each of them
had no more than the bare legal qualification. But we
know that this in reality fell far short of the true value,
some of them owning two, others three, and some owning
several knight's-fees, while none had less than one.
But it must not be supposed that the forty landowners,
to whom the statute refers, held all the free lands of Kent.
In the first place there was a large class of persons owning
fractions of knighPs-fees. The Feodary of Kent, not to
speak of the more ancient records, is full of the descrip-
tions of estates as small as one tenth, one fortieth, and
even one seventieth part of a knight's-fee. Instances will
be presently given of estates comprising a few acres or r.
a few shillings of rent-service', which were descendible ^
to the heir at common law. In one case it was actually ^
found by the jury that one acre in a particular field was-^
so descendible, and the rest gavelkind.
It was always noticed as a characteristic of the coimtys^
of Kent that the number of tenants was larger and th^^-
8 Middle Ages, iii. 170.
^ See tables compiled by Sir Francis Palgrave cited in the same place.
' For instance, in the inquisition post mortem of W. Colepeppcr, quote=fE:=3
before, his eldest son inherited a rent-service of 268. 6d. held by him oi: — ^^i
of gavelkind in Shipboiune.
/
XIII.] Tenure hy Knight-service. 291
freeholds were smaller in proportion, than in any other
part of England \ This is due chiefly no doubt to the
custom of partible descents, as is noticed in the disgavelling
ordinances and statutes *. But it is also due to other • 2 inst.
causes. The statute of Quia Umptoresj which prevented
the subdivision of services, incited and promoted the sub-
division of tenancies all held of the same lord. Add to
this the effect of subdivisions among co-heiresses and by
wills among devisees, and we find no reason to be sur-
prised that much of the " free land" of Kent should have
been held in small parcels. ^^ Terra alienata per parti-
culas," is the expression used in the Testa de Nevil of
the military lands held by sergeanty which were thus
subdivided as early as the reign of Edward II.
In the next place we must especially remember that the
statute applied to those landowners who were liable to sit
on juries of attaint, and no others. This consideration will
exclude the lands then held by the Church, which, as we
liave seen, were most numerous and valuable.
The Prior of Christchurch alone held thirty-five manors.
rrhe measurements given by Thome shew that the Abbot
^f St. Augustine's held nearly twelve thousand acres. At
'the time of the suppression of monasteries the Church held
lands in Kent worth at that time £9,000 per annum^ which
'^ere resumed by the Crown, besides the vast possessions
Xirhich the Archbishop and the Bishop of Eochester were
^)ermitted to retain.
* At the end of the last century the number of freeholds was about
^Uie thousand, " which is surprising (wrote Hasted) considering the large
XKieaessions which the two episcopal dioceses, the two cathedrals, the
Several colleges in Oxford and Cambridge, and other bodies corporate, are
Entitled to in it; which, at a rack-rent, were then computed at upwards
of £S0,000 per annum, besides parsonages and tithes." — (vol. i. p. 801.)
292
The Tenures of Kent.
[GH4F.
We may further exolude the temporal peersi who diaxed
among them a large proportion of the land held at eoia*
fnonlaw.
The foregoing remarks may be verified by a cnrscny
reference to the evidences collected in the inqnisitionB
post mortem of the, reign of Henry VI. We find, fi>r in-
stance, in the inquisition taken on the death of Sir Thomas
Foynings in 7 Hen. TI., the following list of '^knight^s-
fees pertaining to the manor of Basmg held by tilie hto
Sir T. Poynings'* :— .
vim OV BBTAra.
^Betshanger
•Ham
Norton
Kewington
Fiahboume
Tunstall .
^ICoriston .
•Bicknor .
Kingston ")
♦Tong 3
Elnothington
♦Pidng
Harty* .
Barston .
Sholand .
}
voEnov cv
1
1
1
i
i
Total 14i
The manors marked with ♦ were held by castleguard of Dover Castle.
Another important inquisition is that which was take^"^
on the death of John Pimpe of East Farleigh. His eldest
son, Eeginald, was found to be the heir to the following^--
lands, manors, and advowsons, and all his sons togeth^^
See Lowe v. Paramour, supr.y and Dyer, 301.
xni.]
Tenure by Knight-service.
293
to his other lands,
which
were
" of the tenure of gavel-
kind»V'
•IGHoL
VLsa
irna ov nxATB.
East Baming .
Half the manor.
WestBaming .
Manor, adrowson.
Otham .
Manor, adrowson.
Loose .
Manor.
Nettlested
Manor.
Pimpe .
Manor, lands, house.
The Moat, Brencbley .
West Mailing |
East Mailing
•
Lands.
Lamberhnrst'' .
,
Manor and lands.
It is sufficient to trace the descent of one or two of
these estates.
Otham was part of the barony of Odo, Bishop of Bayeux,
described in Domesday Book as containing "one suling
and one yoke/' of which half lay in demesne.
It was held as one knightVfee in the reign of Henry
III., according to the Testa de Nevil^ by Peter de Otham
and his daughter Loretta, wife of William de Valoignes.
She divided it in her lifetime between her two sons,
"Walter and Eobert f, by whom it was held (together with t GmL
the advowson) as one knight's-fee parcel of the barony of 404.
Albemarle. In the Book of Aid, 20 Edw. III., the widow
of one brother and the representatives of the other paid
the same aid. Sir Balph de Frenningham, of Loose {, t ^Mt t.
* *^ Terrae de tenorft gavelkind inter heredes masculos." These lands
«nd tenements were very numerous. Several of these estates came into
ilie ownership of John limpe after the death of his elder brother. John
IPimpe died in 18 Hen. YI., under which date his Inq. post mortem is
carolled.
* The manors of Lamberhurst and East and West Banning were held
as of the castle of Tonbridge as part of the honour and barony of Clare.
)
294 ^^ Teriures of Kent. [chap.
held it by knight-service at his death in 12 Hen. IV., and
devised it to John Pimpe and his heirs nude^ by which
limitation it reached Keginald, eldest son and heir of
John Pimpe.
It appears from the Testa de Nevil that this manor was
held anciently by grand sergeanty, and that the tenoie
was subsequently changed to simple knight-service.
West Banning was a small manor, part of the same
barony at the Conquest. It was then held by the Creve-
quers by military service. At the beginiung of King
John's reign it was held in capite by William de Barm-
ling, formerly sub-tenant of Kobert de Crevequer, as one
knight's-fee. He was succeeded by his son Bobert de
Barmling°, who died in 1269, and was found by in-
• 63 Hen. quisitiou * to have held this estate in capite ^ as one
knight's-fee.
This inquisition has been published by the Kenliiili ^"i
ArchfiBological Society, vol. v. p. 300. It appears from iL9J
that his son William inherited the manor of Barmling,^ ^s,
or Barming, and 100 acres of land, with a mansion, garden,
woods, rents-service, and profits of courts. In Pimpej.-
50 acres of arable, with meadow land, and rents of assize :
in Egerton, 20 acres, held of the archbishop \
William de Barming died in 22 Edw. I. ', and was suc-
ceeded by his son, Eobert, holding these estates, as above ^
mentioned, until his death, 31 Edw. I. Soon afterward X^ s
the estate was divided, and John de Fremingham paid th* ^M=ie
aid for making the Black Prince a knight on two-third^:3ds
of it, scilicet^ the manor and 100 acres in West Barmin^5.-g.
"" Omitted in Hastcd's Account, iv. 394.
P Therefore not in gavelkind. Kirhj Lee*8 Case.
^ See also Cal. Gcneal. 134 ; Red Book of Exchequer, 132.
^ Inq. post mortem 22 Edw. I. 27.
xin.] Tenure by Knight-service. 295
From him it came to Beginald Fimpe, in the same mamier
as Otham above described.
The other third part of the estate, comprehending the
manor of Pimpe with 50 acres, (otherwise called Jenning's
Court, in Yalding,) was held by knight-service by John
de Hunton in 20 Edw. III., and came to the Pimpes by
a different track of ownerships. Hasted mentions another
estate, supposed to be a fraction of Pimpe manor, which
in 10 Hen. VI. was held by another family. All these
estates are recorded among lands held by ancient knight-
service in Cyriac Petit's " Feodary of Kent."
In 18 Hen. VI., the year in which the statute now
under discussion was passed, died William Frognall, of
Teynham.
His wife Margaret was endowed of the third part of
Buckland manor and advowson, and of a rent-service of
£2 lis. 11^ in Luddenham. This rent-service was paid
in respect of half the estate called Bishopsbush, which
her husband held by knight-service. Bishopsbush com-
prised half the manor of Luddenham, which was held of
the Castle of Dover, by the tenure of castleguard, as part
of the barony of Chilham ". The manor of Buckland was
part of the barony of Leeds.
* Luddenham is described in Domesday Book as one suling, of which half
was held in demesne. It was hold as one knight' s-feo in the Idtli your
of King John, {Testa de Nevil); afterwards by Sir Roger North woml,
who held it by knight-service. Ho also owned certain marsh-lnnds in
Luddenham, which wpre gavelkind, but'converted to ' knight-sorvico land'
by charter from the king in 41 Hen. III. This charter is still proservoil.
The other lands thus disgavelled by him are recapitulated in tho liook
of Aid 20 Edw. III., PhiUpot, 225.
Buckland was also held by castleguard. William do App(»rtleld was
found to hold it by knight-service in 33 Edw. 111., and his widow hold
(me-third in dower. His son held it for his life, when tho estate doioondcd
296 The Tenures of Kent \pm^.
Among the inqtdsitioni^ taken in the next jear^ 19 Sen.
YL 21, is that of John Adam, who died holding liatf tiie
manor and advowson of Harrietsham by knight-Berviee of
the king, as part of the barony of FevereL
The manor of.Harrietsham had been diyided ui 52
Hen. ni., so that the &mily of Korthwood heid two-
thirds, and that oi Leyboume the remainder.
The former portion oomprised ^^ the manor of QanMtah
ham," of which John Adam held a moieiy by ka^bd-
service. The whole manor is recorded as one kni^l's-lee
• HastT. in the Book of Aid and the Feodary of Kent ^ \ fll^l
The manor of Marley, in the same parish, was held by
knight-service of the same barony from the time of the
Conquest. It is perhaps worth noticing that by the Domes-
day Survey it contained one "suling'' of land. By the
measurements of the Parliamentary Commission in 1649,
appointed to survey the estates of deans and chapters, it
was found that the estate comprised 184 acres. This
agrees very well with the notes on the dimensions of
the Kentish suling in another chapter.
But John Adam held other lands which had not anciently
been of military tenure. These are carefully distinguished
in the record, and described as "a mansion and 120 acres
of land in Dimchurch held of the archbishop in ffavelkindJ^
In 22 Hen. VI. Sir John Basing died, and was found
to have held two thirds of the manor and advowson of
Kenardington by knight-service.
This manor (as was mentioned in the chapter on castle-
to Sybil Frognall, from whom it came to William Frognall^ as mentioned
above. He was succeeded by Thomas Frognall, who died in 1505 holding
all the estates above-mentioned by knight- service. (Hast., vi. 398.)
* See Inq. post mortem Stephen de Cressy, 47 Hen. III. 28, and Eoger
de Northwood, 13 Edw. I. 25.
xin.] Tenure hy KnighUservice. 297
guard) was held immediately after the Conquest in barony
of the king, being one of the knight's-fees forming the
Constabulary, or estate of the Lord Warden of Dover
Castle.
Sir Thomas de Normanville was found by inquisition,
11 Edw. L 37, to have held this manor and advowson,
with Cockride in Bilsington, in capite by knight-service.
His brother Ealph was his next heir"". Besides these
estates, and entirely distinct from them, these brothers
had jointly been seised of gavelkind lands held of dif-
ferent lords. The jury found that the moiety of these
lands descended to the said Ealph, as co-heir of his brother.
A distinction was made between the lands held of the king
in capitej which the eldest brother had inherited, and these
gavelkind lands. (^' Obiit seisitus .... tam de illis quee
tenentur de domino rege in capite, quam de illis quas
tenentur de diversis dominis in gavelkynde.")
Another Thomas de Normanville died seised of this
manor and advowson, held by knight-service in 11 Edw.
II.; and in the Pleas of the Crown for that year, 11
Edw. II., rot. 68, we find that his widow, Dionysia, was
endowed at common law with one-third of the manor of
Kenardington. We have seen that it was still held by
knight-service in 22 Hen. VI., as it also continued to be
held in 35 Hen. VIII. according to the Feodary of Kent.
Yet Hasted tells us that it was divided with the ad-
vowson among co-heirs in gavelkind*. He may have*Ha«t.
been mistaken in his deduction from the facts of the
case ; there may have been a division of gavelkind lands
comprised in the estate among co-heirs, and a descent at
* Hasted's account is wrong. He confused Thomas de Normanville,
who died in 1 1 £dw. I., with his relation of the same name who owned
this estate at his death in 11 Edw. 11. (Hast. Tii. 246.)
298 2%e Tenures o/Emt. [CKI^.
oommoii law as to the manor and airoimQ^ or a t
by jfiB^mily ammgement. If hk statement is tni% it is
evident that a mistake was committed.
In the same year Sir Hngh Halsham died seised ^ Ae
andent kniglitH9erviee manor of Brabonme, and tir»-tihads
of the adyowson of HinxhilL The former estate iras ime
of the thirty manors in Kent held in barony by fii^ de
Montfqrt at the Conquest, and in the rdgn ef Edm I.
was held by knight-servioe as of the king's Hn6lidaea\
The latt^i with the manor of Hinxhill, to whioh ll was
appendant, formed part of the same barony. We &id no
Qooonnt of any demesne lands comprised in it 1^ tite date
of Domesday BwAu Indeed, we are told in that aarrey
that '^ a oertam socage tenant held it of the late kii^.''
It is remarkable, therefore, that the adTOwson shoidd
have been descendible at common law, inasmuch as any
demesnes afterwards reserved must haye been gayeQand*
But the question would not arise while it was appendant
to the manor.
In 20 Hen. VI. Sir John de St. Leger died holding by
knight- service the manor of Ulcombe, and a very large
estate in the parishes of Little Chart, Pluckley, Frittenden,
Lenham, Boughton Malherbe, &c. The former was held
by this family by military tenure from the Conquest until
the middle of the seventeenth century. It was given in
francalmoigne in the tenth century to the Archbishops of
Canterbury, and appears in every roll of knight^s-fees since
the reign of William the Conqueror. The latter estate,
inter alia^ included "half a yoke of land" called Boting
in Pluckley, which had also been anciently held in francal-
' Inq, post mortem Joan de Montchensie, 1 Edw. U., and Hasteda.
viii. 14, 26.
xin.]
Tenure hy Knight-service.
299
moigne, and being alienated by the Abbot of St. Augus-
tine's had become socage^ without being converted into
gavelkind. At the Conquest it formed part of the abbot's
barony.
Another important estate of "ancient knight-service
land" was held by Sir Eobert Poynings, one of the " thirty
or forty persons" mentioned in the Act of 18 Hen, VI.
0.2-
On his death in 25 Hen. YI., he was found to have
held by military tenure the following manors, lands, and
tenements : —
PASISH.
DBS0BIFTI017 07 SSTATB.
♦Tirlingham .
. Manor, land, &c.
Hastingleigh
. Advowson.
Westwood .
. Manor.
Leeds
. Land.
Frittenden .
. Land.
Combsden .
Manor.
Standen
Manor.
Hoking
. Manor.
♦Rucksley
Manor, adyowson.
Horsmonden
. Manor, advowson.
Leveland .
Manor.
Benenden .
. Land.
North Cray .
. Manor and advowson
Horton
. Manor.
•Knockiiig
Manor.
♦Eastwell .
. Manor, advowson.
The manors marked, * were held by castleguard rent-service to Dover
Castle. The manor of Tirlingham included that of Newington Bertram,
of which, with several rents-service from the freeholders, Sir R. Poynings
died seised. The service due to the Crown from Tirlingham was the re-
pairing a moiety of a certain hall and chapel in Dover Castle, and paying
castleguard rents 7.
y Hast. viii. 165. Compare the service due from the Prior of Horton,
viz. the repair of the Penchester tower in the same castle, before the
service was commuted for a rent in money. Tirlingham was held of
300 I7ie Tenures of Kent. [osap.
Horsemonden was one of those estates wliioh wero beld
of the archbishop '^ in capite by grand sergeanly/' (It
has been said before that the archbishop, assumed tbe sfyle
of a sovereign prince in this county. It was for this :
said in Kirhtf Let^s Case^ that although no gayelkiiid
held in capite as of the Crown, yet certain gaydkind luids
were held ^^in capite of the ardibishop.'') . Hoz8eiiioiidfini|
however, was not of this last-mentioned kind. It is mmr
• p. 188. tioned in the Bed Book of the ExcheqUw*, the Tutaie
NevUj and many times in the Escheat Bolls, to have been
originally held by knight-service. It was one of the sixty-
six military estates inherited by the heir at oommoa
law of Gilb^ de Clare% and of which his widow was
endowed.
Leveland was another of the ancient possessions <rf the
archbishop's. It was described in Domesday Bo(^ as
^^ one suling in Levelant held by Biohard, miUtaiy teoaat
of the archbishop (^Homo Axchiepiscopi/) " and eotexed
among the " Terrae militum Archiepiscopi." In 5 Edw. I.
Fulk Peyforer died, holding this manor in capite among
other estates, and leaving four sons. It appears by the
inquisition taken after his death, 5 Edw. I. 17, that
^^ William his eldest son was the heir of all his estates
held by military service (including this of Leveland), and
that the said William and his brothers John, Bichard, and
Fulk, were the co-heirs of all the inheritable lands whidh^i^
were held in gavelkind by their father *."
It appears from the same inquisition and from the Fie
the king by military service in 23 Edw. I. (See Inq. post mortem \
tram de Criol, 23 Edw. I. 78.)
" Inq. post mortem, 7 Edw. II. 68.
* " Sunt heredes totius hereditatis praedictae quae tenetur in GayeLx-
kend."— (Ce»/. Geneal.,252.)
xm.] Tenure hy KnighUservice. 301
of the Crown in 9 Eic. I., that the lords of the manor of
Leveland had the sergeanty in Middlesex of guarding the
king's palace at Westminster and the royal Fleet prison
(" onstodia libersB prisonsB de Flete.")
Leveland was held in the same tenure by the great Lord
Badlesmere, to whom free- warren was granted for this and
twenty-three other military estates in 9 Edw. II. ^
The free tenure of the rest of these estates held by Sir
B. Foynings may be easily traced in the same manner
from the date of the Conquest until his death, or till the
abolition of the feudal tenures \
We find many other contemporary notices of lands
descendible at common law. To take one or two out of
many instances, we may mention particularly the manor
and demesnes of Orlestone. Before the Conquest this
estate had been held " by eleven socage tenants of the
king." But at the Conquest it became a portion of De
Montfort's barony, and about half was retained in demesne,
the rest lying in gavelkind. William de Orlestone held
it in capita by knight-service and castleguard ^ The in-
heritance continued in his descendants until Mrs. Scott
died in 12 Hen. VI., entitling her husband to hold a moiety
rf Orlestone by knight-service. It had been divided between
her and a younger sister as co-heiresses in 7 Hen. V. * •HaatviiL
Again, the estate named Old Langport, in Lid, was held
at the Conquest by knight-service of the archbishop, and
^ Calend. Rot. Cart. 9 Edw. II. 57.
* Eastwell, which has been described before, was held by Matilda de
Eastwell as two knight's-fees in capite. By the inquisition on her death
52 Hen. III. 32, it appears that it comprised 250 acres of arable, besides
pasture, rents-service, advowson, profits of courts, &c., all which were
inherited by her son Bertram de Criol.
* Each. RoU 12 Edw. I. 19.
302 The Tenures of Kent. [cHAF*
so continuously until Sir John Hund died in this rai^ii-
• Ha8fc.viiL holding it by the like tenure ♦.
Thus Crawton, a manor which had no free lanj|.|ft
demesne,, is recorded by Hasted to have been ^^mmfg^
sively inherited by three brothers named Belknap^ ^^tt^
t U). ii this time f. The eldest brother, Sir Hamo Belknaf^ lyiu^
also inherited the manor and demesne lands of SLMar
Cray, which had from the time of the Conquest bee*^
of Dover by castleguard in capite and the petty sesqpwil,
of providing gilt spurs for the king. It was fliei
fore socage and not gavelkind^ as shewn in the foci^i*
chapters.
Shebbertswell, an estate containing two sulingi^ ^;
held before the Conquest in francalmoigne, and aftorwr
in barony by the Abbot of St. Augustine's. Immedia'
after the Conquest it was granted by the abbot to a ter
by knight-service, by a charter preserved in the Beg^
ofthe Abbey, No. 177.
It is entered in the Book of Aid as having been hc^
castleguard of Dover Castle, having previously been s*
held by knight-service. In the reign of Henry VI.
t ib.ix. owned by the family of Philipott J. Hasted infor
that this manor ^ with other estates in the parish
alienated in 1785 by co-heirs in gavelkind. The sei
following explain what he meant in reality, viz. t^
estate, excluding the manor^ mansion^ and deme^ih
was thus alienated. But in other cases he is
explicit, and so has led to a mistaken impressi<
the whole estate has been divided among the cii
heirs, when in fact only the gavelkind portions
treated.
II vol. vi. Thus, to give another instance, he asserted |!
manor of Stalisfield was divided among gavelkin*.^
xni.] Tenure by Knight-service. 303
at the end of the last century. This statement is very
unlikely to have been correct, for these reasons. It was
held in capite, one quarter of the land being in demesne
from the Conquest until it was given to the Knight's Hos-
pitallers, on the same terms as West Peckham and other
estates before mentioned. At the Eeformation it was given
to Sir Antony St. Leger in capite to hold by military
tenure. Moreover, while he so held it, all his customary
lands were disgavelled in 2 and 3 Edw. VI. The manor,
therefore, could not be gavelkind for a double reason.
The same mistake was either committed in reality, or
imagined by the same writer to have been committed, in
the case of the manor of Nutsted, half the lands of which
were in demesne, and held by ancient knight-service. It
was enumerated among the military lands of Dover Castle
in the Bed Book of the Exchequer, p. 197, and in the
Book of Aid, 20 Edw. III., as one knight's-fee. In the
reign of Henry VI. it was held by Hugh Brent.
To return to the consideration of the ancient knight-
service lands held by the " thirty or forty persons" men-
tioned in the statute of 18 Hen. VI., we find that Woods-
Court, in Badlesmere, was descendible to the eldest son, in
the same manner as the superior estate of Badlesmere.
Both are mentioned in the various rolls of knight's-fees,
the Feodary of Kent, &c. In 19 Edw. Ill- Woods-Court
was held in socage in capite by the service of finding a
hawk or two shillings yearly for the king. Guide At-
wood held it at the end of the reign of Henry VI. ♦ •Hast tL
The peers owning lands in Kent were not included
among the persons named in the statute; they did not
sit as jurors in cases of attaint, and therefore could not
be among those who were " continually harassed" by this
duty. But it is quite certain that much of the " ancient
acH
The Tenures of Kmt
^ [otap,
knight-BerTice lands" in Kent were held by tlie peers in
the reign of Henry YI,
Without needlessly i g ont a long array of in-
stances, we will give \ > j >fs only of this fact, the in-
quisitions taken on the t ths of Humphry, Duke of'^
Buckingham, and Edmund, irl of March, in S9 Hen. VL |
and 3 Hen, VI, respeetiYely.
The fonner recounts the military estates of which the '
Duke died seised (38, 39 Hen- VI. 59), and which were
inherited by his eldest son b heir male*. The list of
these estates c< i , alia^ the manor and castle
of Tonhridge, \ i id demesnes of Hadlow, Dac-
hurst, Brasted, Vielst or Filston, aU held in sef-
geanty of the archbishop and by knight- seryice from tie
Conquest downwards.
In addition to these he held by the ^me tenure tie
following estates : — - ' *
^IBUH.
StTATS.
Eatonbridge
. Manor.
FenshuTBt .
. Manor, park, lands.
TTavenden Court .
Manor, lands.
Ensfield Fann
. Lands.
Yalding .
Manor.
Bay HaU .
. Manor, lands.
Henhurst .
Manor, lands.
Brenchley
Manor, lands.
East Banning
Lands.
Upper Hardres .
. Manor, adyowson, land.
Sheldwich
. Land.
besides ten other knight's-fees and a-half. Many of these
estates had reverted to the king (Henry VI.) as heir to
Humphry, Duke of Gloucester, who died in in the 25fli
year of that reign. After the death of the Duke of Budt-
• Dudg. Baron., i. 166; Hast. v. 214.
xin.]
Tenure by KnighUservice.
305
ingham a great portion of his estate was again resumed
by the Crown '.
As to the numerous knight' s-fees held by military service
of the Archbishop and the Bishop of Kochester in this
reign, it will be sufficient to refer to the Bed Book of
the Exchequer, 132, the amount of their estates not
haying been altered before the reign of Henry VIII.
In the same place will be found the description of the
fifteen knight's-fees of St. Augustine's Abbey, in the list
of "tenants by barony and military services throughout
the county of Kent."
The other inquisition, as above-mentioned, was taken on
the death of Edmund, Earl of March, who held of the
Crown, in 3 Hen. VI., more than nineteen knight's-fees —
a very large estate. The list includes the following manors,
lands, and tenements : —
VAMB OP ESTATE.
POBTION OP
knight's-pee
Kingston . . i
Watringbury .
. li
e, Luddesdon
u
c. Moreston (Murston)
1
c. Gravesend
• \
. i
c. Addington
^A!
Eslingham
1
East Preston
i
c. Bougbton Moncbelsea
*
Dupton
1
c. Eritb .
4
e, Ripley
1
' Jnquts. de Diversis Annis, Hen. VI. a, No. 5, Kent. As to tbe
manor of Eatonbridge, see Palgrave's Rottdi Curia RegiSy vol. ii. p. 117.
^As to Pensburst and tbe otber estates above mentioned, see Inq, post
mwrtem 35 Edw. I. 47, Earl of Gloucester, and 2 Edw. II. 66, Mary de
^enchestcr.
'3o6
TJte Tenures of Kent
I
UTAME OF BflTAfE,
Limtng
Ejitiome
Stonepit
Ham .
c. Bicknor
Katington
NewiBgtoB
e^ CMham
PajTo<!k
EversEold
Harty ,
lom o*
Einairr'e-Fxs*
i
i
i
i
1
1
i
Thesej with
up more than
It ia necdl
from the C q[
in the aboTe liat)
estates held by t
easily be found by any
difficulty in general in j
to 1 r
r
eified in the inquisition, made
descendible at common law^.
^ ree tenure of all these lands
Is ; some of them (marked e.
1 mentioned already among tke
I ; the history of the others may
son interested. There is no
>ving the tenure of those lanil^
and manors which formed portions of the great baronial
estates ; but it is sometimes hard to do so in the case of
small estates which were imimportant in ancient times.
There are, however, one or two points to be noticed in
this inquisition.
Swanscombe at the time of the Conquest was a y&j
large and important manor held in barony by Odo of
Bayeux. It contained no less than ten "sulings'^ of
arable land, including the three ploughlands of demesne.
Soon afterwards the tenure was changed to castleguard of
Eochester Castle, and the services were later commuted
for a money rent. This manor was owned by the gW*
Kentish family of Montchensie. William de Monte Canisio>
< Moda Militaria Edmundi Comitis Marckm^ 3 Hen. YI.
xm.] Tenure by KnighUservice. 307
or Montchensie, died in 38 Henry IIL, holding it of the
king by military service, and of his two sons, William
and Thomas, was succeeded by the eldest as heir at com-
mon law^.
In 7 Edw. 11. it was found to be held in capite by homage
and rent-service, i.e. in socage, though not in gavelkind;
and we further learn from the important inquisition taken
on the death of Edmund of Woodstock, Earl of Kent, in
4 Edw. IIL, that the service consisted in fealty and a yearly
castleguard rent ("per servicium reddendi annuatim prse-
dicto Castro Eoffensi") of £A 4s. Od., and 8s. 4d. at the
king's Exchequer for all services ^ Wicham and many
other estates in Kent are mentioned in the same record
to have been held of the king in socage in the same
manner.
But Hasted * speaks of the subsequent descents of this • vol. ii,
412.
manor in terms which seem to imply that it was divided
in the last century among co-heirs in gavelkind, although
in the preceding sentence he had written, "The eldest son
inherited this manor ^."
The manor of Erith, or Lesnes, was held in barony by
Odo of Bayeux, and afterwards in the reign of Henry II.
its owner paid aid for it as a military fee, both towards
the expenses of marrying the king's eldest daughter, 12
Hen. 11. It also paid scutage in 18 Hen. II., 33 Hen. II.,
and 2 Eic. I. This manor, with half the demesne lands,
** See Kast. ii. 406, and compare Inq, post mortem 14 Edw. I. 69, and
16 Edw. I. 78.
> Esch. Roll, 4 Edw. in. 38.
^ Among other illustrations of the freedom of the tenure of these lands
held of Eochester Castle, the Pedes Finium shew that the demesnes of the^
manor of Eccles were " out of gavelkind," the widow receiving one-third
as her dower at common law. (Kent. Arch. Soc, v. 288. See Hasted
3o8 The Tenures ofKfid. [qhap.
• Hut iL descended to the heir at oommon law of Biohnd de latia *,
281
who had held it apparently by oastlegaaid.
In 12 Hen. III. we find that Boyda de JkfWt vA
Bichard de Chilham, her hnsband, reooy^red this urittte
hy wit of right and trial hy hattU. It was shewn in a
former chapter that this is a plain proof that no part of
the land recovered was gavelkind ^. The case of Lowe v.
t Co. Ent Paramour f, on which Bobinson founded a doubt whether
trial by battle was not allowed in actions for cugtomary
lands, has been shewn not to be applicable, the land there
in dispute not being gavelkind as he supposed, but shewn
by all the ancient roUs of knight's-fees to have been ori-
ginally and continuously held in a military tenure. The
estate recovered in Lowe y. Paramour is mentioned in the
inquisition which we are now oonsideringj Bcilieet, two-
thirds of a knight's-fee in Harty.
In 56 Hen. IIL the manor of Erith was found to be hell
of the king by homage and fealty in capite ^ ; and in the
next reign it was declared by a jury to be a member of
the barony of Chilham "". Sir Giles de Badlesmere hel^A
it as two knight's-fees by castleguard in 12 Edw. III. ;
but in 3 Bic. II. the jury impanelled on the death of th_-*^
Earl of March returned a verdict that this estate was heI-«^
in capite^ " sed per qusB servitia juratores ignorant." Th^Hs
was equivalent to finding a tenure by knight-service, " fcn^r
t 2 iMt. the best shall be taken by the king J ;" accordingly it w^^is
Co. i35. SO held until the Act 12 Car. II., c. 24.
Eythome, which was held by the Earl of March in tfc^e
'' See ante, Fettes v. Barnard, and see Dyer, Coll. 201 a.
1 Inq. post mortem Richard and Roysia de Dover, incert. Hen. HI. 2^ 7;
Cal. Geneal. 181.
" "In capite tanquam membnim baronia) de Chilham." — {Jnq, p^t
moitem Joanna de Dover, 33 Edw. I. 183.)
XIII.] Tenure hy KnighUservice. 309
same tenure, had originally been held in francalmoigne by
the monks of Christchurch in Canterbury ♦. But since • Hwt. x.
the Conquest it has always been included among the
^^ ancient knight-service lands" of the archbishops, as we
learn, inter aliuj by this inquisition. The freedom of its
tenure was proved afterwards in the reign of Elizabeth : —
" An assize was held 42 Eliz. to prove by verdict between Forth
V. Riiher if these lands (the manor and demesnes of Eythome)
were gavelkind, on a writ of dower ; when there were many rolls
of the Archbishop produced to prove that they were held of the
archbishops by knight-service, and a verdict was given accordingly
for the plaintiff t" tn)id,6e.
Moriston, or Murston, also mentioned in this inquisition,
was in the reign of Edward I. held in the same manner by
Thomas Abelin, as appears from the Escheat Boll of 24
Edw. I. The jury summoned on his death found that he
held it as one knight^s-fee in capite by the service of one
knight, and that Isolda his widow was endowed of the
third part of the manor and lands at the common law °.
Gravesend was found, two years later, to be also held
in capite by Henry de Cramaville in the like manner **.
These inquisitions will serve to establish the statement,
that much free land descendible at common law was held
by the peers at the time when the statement was made
that "well-nigh all the county was gavelkind." We know
indeed from other sources that the amount of free land
was the same in every reign, for nothing could ever change
the nature of the demesnes of a manor originally held by
■ Inq. post mortem of Thomas Abelin, 4 Edw. I. 21 ; of Nicholas
Abelin, 6 Edw. I. 17 ; and Isolda de Apperfield, 24 Edw. I. 46.
"" Inq. po8t mortem taken on his death, 26 Edw. I. 21.
3IO The Tenures of Kent [casuB. xm.
knight-servioe. There is, however, tiiis advantage in mid-
tiplying the instances of a rule which cannot be diapnted,
that each verdict of a jury quoted from the reooirds of tiie
iKsichequer carries with it sufficient weight to eirtaUiflb
the free or customary nature of the particular lands men-
tioned in it, and leaves no room for the appHcation of tiie
common presumption. However andent the ix-curd, the
presumption of gavelkind tenure has no force against it,
supposing the evidences of the identity of the land to be
complete. For this reason several o&er illustrations of
the general rule, that the lands originally held in militaiy
tenure are now descendihle to the eldest son, will be added
to those given above.
CHAPTER XIV.
Tenure by Knight-servioe (oontinued).
Importance of the record named the Feodaij of Kent. — Its history. —
Tenures in eapite.'fGayelkmd held in capiteA-^OtheT records. — Hundred
EoUs. — ^List of nmltary lands. — EscheatTlolls. — Manors of JFUST-
BJSRTHS, HAQHNET, TRIENST ONE, —Descent at common law
of lands m FRINSTED, ASHUR8T, HOLLmGBOURNE.—YreQ
land and gavelkind in MONINQHAM, NETTLES TEJ^.-^^DeBcent at
common law of manors and lands in BARTFORB, STONE, LITTLE-
BROOK, SWANSCOMBE, YALBHAM, and IGMTMAM.^Maxior^
and advowson of BECKENHAM. — Descent at common law of manors
and lands in EAST B ARMING, WICHLING, FRINSTEB, LEVE-
Z^iV2>.— Estates of the Northwood iomiXj.-^BOUGHTON MAI^
HERBE, SHALMSFORB, GRAVESENB, COCKRIBE in BIL-
SINGTON—C&se of Cheyney v. Edolfe.—Free tenure of BLEANE
BndlTOABE COURT. — ^Forest of Bleane. — Question concerning tenure
of woodlands.— Manors of P^ UL'S CRA F, FOOT'S CRA T, NORTH
CRAY, HOO ST WARBURGH.—Yx^ lands in ORLESTONE
vxAROMNEY['-Ytq^ and customary portions oilFIELB and SEVER
COURT^Eailj history of BOUGMTON ALUPBr.—lts tenure-
Division among heiresses. — Question respecting its tenant by the cur-
tesy of England. — Subsequent notices. — Pleas of the Crown. — BOYN-
TON in SJriNGFIELB. — DlB^vite as to tenure of waste land.
—CHARING, ICHING.—Eaxlj history of BURMARSH and
BEAMSTON^Case of Finch v. Finch.— STURRY— Free lands in
8NAVE, GARWINTON— Other estates of St. Augustine's Abbey.
—STOBMARSH, OWLIE, BRISETNG.—Vroois of tenure.— Sub-
division of estBLtes. — SUTTON COURT, BERE COURT — Eyu
deuces of miHtary tenure.— GO OBNESTON, GOB WINSTON by
SITTINGBOURNE.—'Bjon of Blanch-lands.— Liberty of the Duchy
of Lancaster.— ZO^i>^iV; CHELSFIELB, BRABORNE, EARN-
BOROUGH.— Other lands described in the ^VL.—FRENSHAM m
Bolveuden.— SELLING, BARBIES COURT— Lowe v. Paramour.
—The Long House farm.— CHAMPIONS COURT— Cnstle and
mmoToiALLINGTONCOBHAM, ORKESBEN,md VIELSTON
—Records relating to NEWINGTONmd BIMCHURCH— DeBcent
to eldest son.— TOTTING TON— Rectory of Leyboume.
312 2%^ Tenures of Kent [gbap.
HAYiNa now shewn that, the amount of land desoendiUe
at common law and held by the ^^ thirty or forty pmeKms"
mentioned in the statute 18 Hen. YI. c. 2, was by no
means inconsiderable ; and farther^ that this statute took
no account of the great amount of demesne land at that
time owned by the spiritual afid temporal peers and the
ecclesiasties of inferior rank; we may bdw notice a few
of thote statements which are found scattered in the records
of various reigns, and which establish in each case the &ee
tenure of one or more estates in Kent
The most important of the records eoncerQing the whole
county, after the Book of Aid above mentioned, is un-
doubtedly the Feodary of Kent, or list of the ancient
knight-'Service lands of Kent mentioned in the Testa de
Jfevil and other rolls of knight's-fe^, but especially in the
Book of Aid of 20 Edw. Hi. It was compiled in hk
official capacity, and placed in the Exoheqner by Cyriae
Petit, the Feodary of the county, at the end of the rcigE
of Henry "VTIL He added to the ancient record of 20
Edw. III. his own notes, and gave in a compact table tiie
ancient and modem name of each estate, the names of the
superior lords and immediate tenants in the reign of Ed-
ward III. and Henry VIII. To this he added the amoimt
of military service, or castleguard rent (as the case might
be), due from the land, and any particulars relating to Ihe
tenure which were of exceptional importance, citing very
often inquisitions post mortem during several reigns, and
other documents of importance, to shew the free military
tenure of the land. The great value of these notes to
a student of tenures will appear both by the quotations
made from them in this chapter, and from the wording of
the description which he himself ajB^ed to his work, as
finally completed and ready for use in the Exchequer and
XIV.] Tenure hy Knight-service. 3 1 3
the Court of "Wards and Liveries. A portion of this de-
scription runs somewhat as follows in English : —
" This is the Book of the reasonable Aid levied in the time of
King Edward III. on the occasion of knighting his eldest son in
the 20th year of his reign, and now remaining in the Exchequer.
This book of the knight's-fees in Kent has been amended and
renovated with greater freshness and clearness as to the names
of sll the possessors and proprietors of those lands, and also the
names by which the lands themselves are now called or known,
by Cyriac Petit, the king's Feodary in Kent, as well from the
testimonies, relations, and admissions of the possessors and pro-
prietors in those times and the present, as from the evidence
and declarations of divers trustworthy persons in each hundred
throughout the county of Kent in the 35th year of King Henry
vin.,'^ &c.
But the rule of law, that no lapse of time can alter the
original tenure of any land in Kent, renders it important
to consult the earlier as well as the later sources of in-
formation respecting tenures in capite and by knight-service
in this county.
It must not be forgotten that gavelkind land could not
be held in capite^ as shewn in an earlier chapter. It might
of course be held directly of the king as part of his ancient
demesne, or as part of an honour or manor escheated or
purchased by him. But such a tenure was not strictly
m capite ; it is properly described as a tenure " in capite
ut de honore," or a tenure of the king " ut de honore et
non in capite." In the early records tenure in chief is
confined to those estates which were held of the Crown
by a tenure originally created by the king*. But since
the reign of Henry VIII. both kinds have been named
/ Co. litt. 108 a, n.; Madox, Exch. 432.
indiBcriminately *Heniires in capite^^^ a practice whici has
jfrequently caused confosion. Wten tenants in capiU are
mentioned in this chapter^ only those will be meant who
can properly be so called in the original sense of the term.
Besides the estates, which were shewn earlier to have
been held of the king in gavelkind from being included
in his manors of ancient deraesnej we may notice the
following, Margaret de Penshurst was found by inqi^si-
tion in 2 Edw, II. to hold ^'in gavelkind of the king in
eapite^^ a house with lands and wood in Tunstall, Bredgar,
and Milsted, with certain rents of assize, by the service of
paying a yearly rent and making her suit to the king's
court at MiltoUp These lands, in fact, were all within the
manor of Milton, and therefore of the nature of ancient
demesne. Otherwise it could not have been correctly called
a tenure in capita.
In precisely the same way we find recorded in an in*
quisition of the date of 2 Edw. II. that Henry de Cheve^
noy held in capite the gavelkind manor of Cheveney,
which was socage, and part of the ancient demesne of the
• Ha«t.vu. king's manor of Milton *.
In the first place, then, those enquirers who. wish to
know what lands were held in capite by a military tenure
in the fourteenth century, should consult besides the docu-
ments before mentioned, the Himdred Bolls, of which po^
tions have been published by the Becord Commissioners.
The following short extract will demonstrate their utility
in determining the tenure of Kentish estates.
54.
« Hund. Roll 3 Edw. I. 8, Kent: Hundred of Eyhome.— The
jury further find that Hugh de Gerunds has half a knight's-fee
in Wrensted held of the king in capite ; that William de Peyforer
has half a fee in Wichling held in the same manner ; that Hamo
XIV.] Tenure hy Knight-service. 3 1 5
de Gktton has a whole fee in Boughton and Wormsall held by
castlegoard of Dover Castle of the king in capite; that Sir Rob.
Septvans and Lady Margaret de Yaloignes hold in the same
manner two fees and a quarter in Aldington, owing service of
castleguard to Rochester Castle. Further, that the abbots of
St. Augustine's have held Lenham of the king from very ancient
times ; that Nicholas de Criol, the king's ward, holds one knight's-
fee and the sixth part of one in Stockbury by service of castle-
guard, which lands are now held under the king's grant to Gregory
de Rucksley ; that Sir William Leybourne holds one fee in Leeds
for Sir A. Crevequer, who is tenant in capite of the same
Twyford Himdred. — The jury find that the Earl of Gloucester
holds in capite the manor of Yalding, which is parcel of the barony
of Clare; and Sir Rob. Crevequer holds in the same way Thurston
and Farleigh of the king, as parcel of the barony of Chatham
Bromley Hundred. — The jury find that Foxgrave in Betham is of
the king's fee, and it was lately held by John Malmains of Robert
Aiguillon as one-fourth of a knight's-fee, but when or how it was
alienated they know not ^" &c., &o.
The Escheat Rolls and Fine Rolls for the earlier reigns,
extracts from which have been published by the Secretary
of the Record Office under the inspection of the Master of
the Rolls, aflford still more minute information of the same
kind. Frequent references have been already made to the
Calendarium Genealogicum and the Excerpta e Rotulis Finium^
and a few more extracts are given here as specimens of the
important information to be gained from them on the
special subject of the present enquiry. It must be re-
membered that they are transcripts of the official records
preserved in Chancery and the Exchequer, and that their
statements were all made originally on the oaths of juries
^ See Hund. Rolls, Ump. Edw. I., pp. 196—237.
3i6 The Tenures of JSmti [cotir.
samkovied t6 enquiie into the tenurei flettioesi Sbo*^ iM§m
lands mentioned in them ^
In the reign of Henry IIL one Alnph dci '^oASigirm
owner of the manor of Westberies, being a moiafy of ^
manor of Bucking and of Haghnet, which tieema io ham
been the ancient name of Aghne CSonrt in. 01^ BmBjaej\
besides other lands and tenements comprised witimi tiieir
bonndii. On his death, in 84 Hen. Wi.^ it was ftfend hf
verdict of a jury that '^ Thomas, his fln^bom Bo% tNtf Ul
heir as to all the land which was held by military service,
and the said Thomas and Ids brothw were co-beirs of
all the rest of the land which was held in gavelkind.''
There were certain rents-service, which descended to the
eldest son*.
• Hart^ Trienstone utras in the same reign held by eastlegiiaid*
as part of the barony cif the Lord Warden* It is.
Tilt 261.
• << It must be borne in mind," says the leamed Seoretaiyof (lie Beooid
Commission, '* that there are hundreds who now seek to obtain inhumation
from these records on a great variety of subjects (see lists of these sub-
jects in Kepp. 23 — 26 of the Deputy Keeper of the Public Becords), and
that their number will surely be increased in proportion as the recorda
become more generally known, and their contents more clearly denoted
by indexes and calendars." — {CaL Gen. preface, ii.)
^ Hasted does not give any detailed account of the ownership of West-
beries before the time of Henry IV. It appears, however, that the whole
manor of Bucking was very anciently given in francalmoigne to the
monastery of Christchurch. At the Conquest it formed part of the barony
of Hugh de Montfort, but was recovered by Archbishop Lanfranc in the
Plea of Penenden Heath. (See Cotton. MSS., Claud. C. 6, *' Haec Wil-
lielmus I. reddidit Ecclesise Christi pro Deo et pro salute animse soff
gratis et sine pretio.'*) The list includes Bucking. Part of it, howerer
(Westberies), was retained by De Montfort, and held of him by mihtaiy
service, as recorded in Domesday Book. The portion recovered by Christ-
church contained 100 acres of gavelkind land. (Somner, App. 187; Hast
viii. 355, 441, 472.)
• Inq. post mortem A. de Bucking, 34 Hen. III. 17.
XIV.] Tenure by Knight-service. 317
tioned in the Testa de Nevil as having been anciently held
by knight-service, and a full account of its early history
is preserved in an inquisition of escheat 36, 37 Hen.
m. 82*:— •Cal.Gen.
47.
" All the jurors declare on their oath that this land was given
immediately after the conquest of England to a knight named
Trian, who held it during his life, as after his death did his son
and heir Hugh, and after the death of the latter Robert Trian, his
son. So that the said Trian, Hugh, and Robert held it without
any adverse claim from the time of King William the Bastard
until the time of King John, who took it as an escheat, together
with the other lands then held by Norman barons in England,
and banished the said Robert Trian, the last tenant, from his
realm of England/*
It was then granted to the Maison Dieu in Ospringe, in
which ownership it continued during the reign of Henry
VI., and until that religious foundation was dissolved in
20 Edw. IV.
The next case is even more important. Nicholas de
Gerunde died in 52 Hen. III., tenant of the manors, ad-
vowsons, and demesne lands of Frinsted and Ashnrst, and
lands held in Hollingboume of the prior and monastery
of Christehurch in Canterbury. The jury sunmioned at
his death returned a verdict that "Hugh de Gerunde,
the first-bom son of the said Nicholas, is heir to his
lands'."
This verdict indirectly establishes what was said in
a preceding chapter as to the freedom from gavelkind
qualities of demesne land originally held in francalmoigne.
The whole manor of Hollingboume was thus held by the
^ Inq, post mortem 52 Hen. III. 15.
3i8
The
monks of Chr
i ^aest; at the
latter t
I
f ding in demesne, part of
■which m
'
^i
i and inherited by the heir
at ooml
K 1.
C mde. ]|
Thei
on t
imon de Criolj 52 Hen. IIT
34 (
E , AtcIl c, v. 297) shews that his
d(
ii(
de:
y as before noticed, was tenant
Dfl
> kn if
in Ashfordj Sevington, Pack-
ure.
^ three carucates of land with
< .It
Lces,
the advowson of Ashford by
• T. 121.
But that Simon de Criol heM nothing in capik^ but he
held in gavelkind 240 acres at Moninghamj and other lands
elsewhere, of the same tenure, to which his eight sona
were co-heirs, and of which h s widow had a moiety for
her free-bench. ^
In the same place is a translation of the inquisition
po$i mortem of Eoland de Axsted, 54 Hen* III, 22, by
which it appears that he held half a knight Vfee in Npttln-
sted, viz. 50 acres of arable, with meadow, wood, garden,
profits of court, rent-service from the socage tenants, &c.
Also that he held there 11^ acres in gavelkind. Also
the manor of Hylth and other lands, of all which his son
Eoland was the next heir.
Hasted* quotes a passage from the Book of Aid, 20
Edw. III., to the effect that the military aid was paid by
Sir Thomas Pimpe and his mother "for the manor of
Nettlested, the manor of Hylthe and Hylthe Park, with
other lands in Nettlested and Hylthe, . . . held of the Earl
of Gloucester, chief lord of the fee.^' In 11 Hen* YII.
this estate was still held by knight-service by a descendant
of Sir Thomas Pimpe.
Many other valuable translations of similar records
XIV.] Tenure bt/ Kniffht-ser vice. 319
are contained in the volumes published yearly by this
Society.
Passing to the next reign, we find that Laurence de
Broc, or Brook, held lands in Darent and Dartford^, and
the manors of Littlebrook and Stoneplace, in Stone, and
lands and tenements in Swanscombe ; all which were in-
herited by his eldest son, as heir at the common law ^.
In the next year Thomas de Aldham died tenant of the
manors and demesne lands of Great Taldham, West Tald-
ham, St. Cleres in Ightham (which were divided in the
reign of Edw. 11. between co-heiresses), and certain other
lands and tenements comprised within their bounds *. * ^^!!f*^^'
^ . 16, 87.
''And the jurors being asked who was the heir of the said
Thomas, say that of the military lands {/eodo militari) aforesaid
one Baldwin, son of Thomas de Aldham, is the heir ; and of the
socage land aforesaid the same Baldwin, and his brother William,
are co-heirs V
These socage lands were afterwards disgavelled by
Eaginald Peckham, 2 and 3 Edw. VI. The rest were
held by knight -service until the abolition of feudal
tenures \
In the year following Sir Eichard de la Bokele, or De
EupeUdj died seised of the manor, advowson, and demesnes
« See Hasted, ii. 373, 374, 389.
^ Inq, past tnort&m 3 Edw. I. 10.
' Inq. post mortem T. de Aldham, 4 Edw. I. 45.
* The tithes of Yaldham were anciently given to the Priory of Roches-
ter. This grant, cited Reg. Roff., 117, and the Parliamentary Survey of
1649, shew that the manor of Great Yaldham contained 142 acres. Ac-
cording to the Feodary of Kent it was held in capite by Reginald Peck-
ham in 35 Hen. YIII., who was succeeded by James Peckham, his son
and heir.
320
The TmumofKma.
[mi^.
of Be<^6ii]iam, which is held as odo knight's^ fee in eapit^
He was succeeded by his eldest son and heir \
At the same date Manasser de Hastings was foimd to
hold of the king by grand sergeanty the estate called the
• Hast It. Grange in GilUngham ^ *.
In the same year it was recorded by a jury that Fnik
Peyforer held the manors of East Barmingj Wichling %
Yokes Court in Frinsted, and others by knight-sorvice
(as may also be seen by the Book of Aid, 20 Edw. lTl-\
and Colbridge Castle, with other lauds in Bougliton Mal>
herbe; and that his eldest son was heir of his mOitaTj
lands, and all the sons together of his gavelkind tenements.
Among these military lands was the manor of Lavelandf
as mentioned above in this chapter.
The lands held by Boger de Northwood are enumemted
in the same record, taken according to an inquisition
13 Edw. I. 25. They included the manors of Little Ew,
Harrietsham, Northwood, Newton^ and Middleton, with
others held by knight -service, and certain gavelkind
tenements, disgavelled, however, by the king's charter,
16 Hen. III.
In 20 Edw. I. Hamo de Gatton died holding in capite
by knight- service the manors and demesnes of Bonghton
^ " Idem Ricardus habet legitimum heredem, Philippum nomine^ pri-
mogenitum suum." — {Inq, post mortem 5 Edw. I. 6.) For the later history
of this estate, see Hasted, i. 529.
" Inq. post mortem 5 Edw. I. 7 ; Testa de JVevil, 219.
" "Wichling. ''This manor," says Hasted, "was in the reign of
Henry YII. in the tenure of I. Digges, Esq., of Barham, who died pos-
sessed of it in 19 Hen. VII., holding it, as was found by inquisition, of
the dean and canons of St. Stephen's Chapel in Westminster, by homage
and fealty and the service of three parts of one knight's-fee, and a yearly
payment to the king's castle of Dover. . . . There was payable out of it
6d. (to the king), to the sheriff 25s. for Blanch-rent^ and 1 Jd. for castle-
guard-rent to Dover Castle." — (vol. v. 551.)
XIV.] Tenure by Knight-service. 321
Malherb and Gatton ; William de Shamelesford held of him
the estate of Shalmsford Bridge by the same tenure ** *. •Hast.
Henry de Cramaville and Joanna his wife were found, ▼.399/
in 26 Edw. I., to hold jointly of the king in capite the
manor of Gravesend by the service of paying yearly
12s. 8d. castleguard rent to Dover Castle, and 2s. to the
sheriff, and of attending the sheriff's tourn and leet
twice in each year p.
The free tenure of the demesne lands of the manor of
Kenardington has been shewn above, notwithstanding the
assertion of Hasted that they were gavelkind "*.
But there was another estate which for many generations
descended in the same course of ownership as that manor,
respecting the tenure of which similar doubts have before
this time arisen. This is the manor, or reputed manor,
of Cockride in Bilsington.
We find by the proceedings in the Chancery suit between
Cheyney v. Edolfe^ in the 3rd year of Queen Elizabeth, that
this manor, with many other lands and tenements in Bom-
ney Marsh, and elsewhere, including Great and Little
Terry, a marsh in Harty, Craythome manor and advowson
in the parish of Hope, lands called Tillade and Kings-
marsh in Bomney Marsh, &c., were asserted to be held in
^velkind. Without going into the history of the other
lands, it may be noticed that several records bear witness
i» the free tenure of Cockride manor while it continued
part of Kenardington.
Thus the documents cited in the last note agree in de-
* Inq, poit mortem Hamo de Gatton, 20 Edw. I. 25.
P Inq. poH mariem H. de Cramaville, 26 Edw. I. 21.
^ Haat. vii. 248. See Inq. p. mort. T. de Xonnanville, 11 Edw. I. 37,
and asBignment of dower of Dion, wife of T. de Nonnanyille, Jan., 11 Edw.
U. r. 68 ; Inq. p. mort. of this T. de Xormanville in I Edw. IL
Y
322 The Tenures of Kent. {ghap.
Boribing ^^ Kenardington cum Cookride'' as being held m
' cajnte by military service of castlegaard; and in Chejfneji
y. JEdolfe reference is made to a fEunily setdement con-
tained in the will of Sir J. Cheyney of Shurland, dated in
7 Edw. lY., which described the same tenure m e^gdie.
Cyriac Petit mentions other eyidences in jQie Feodaiy
of Kent to the same e£fect, yiz. the inquisition taken m
the death of Boger Cheyney in 16 Hen. YII., and anotiiar
on the death of Bog^r Cheyney in 4 Hen. VIII.
The manor of Bleane and Hoade Court in the hundred
of Whitstaple affords another example of the rule wMdt
we are discussing. The estate (which had been tihe j^
perty of King Edward the Confessor) was given to Hamo
de Crevequer as parcel of his barony^ to hold m eegnfo. It
contained one "suling/' of which about a quarter lay in
•HaitTiiL den^esne, according to the entry in Domesday Book*.
Sir Hamo de Crevequer, who died in 47 Hen. IIL,, hu
been mentioned above in the notice of the manor of Buck-
ingfield. ^^He was occasionally styled Sir Hamo del
Bleane in ancient deeds" relating to this manor of Bleane
and Hoade Court. The inquisition taken on his death,
47 Hen. III. 33, shews that he was succeeded in it by
his heir at common law, Eobert de Crevequer; whereas
all his customary lands and tenements were divided among
the same Eobert and five other heirs male.
Hasted notices that in a subsequent reign the manor
was part of the dower of Margaret Lady Eos, who joined
with her son, in 32 Edw. III., in granting it to Eastbridge
Hospital in perpetual alms '.
' '' In the rentals of the manor of Blean mention is made of the pay-
ment of ' gate-silver/ a custom not often met with. It seems to be
a payment made by the tenants of the manor for the repair of the gates
leading to and from the Blean to prevent their cattle from straying and
322 :The Tenures of Kent. [geap.
Boribiiig '^Eienardington cum Cockride^* as being held w*
' ceifptfe by military service of castleguard; and in Cfteymfj
Y. J%2(9{/% reference is made to a family settlement con-
tained in the will of Sir J. Che}Tiey of Shurland, dated in
7 Edw. IV., which described the same tenure in capite. ^
Cyriac Petit mentions other evidences in the Peodary
of Kent to the same e£Eect, viz. the inquisition taken on
the death of Eoger Cheyney in 15 Hen. VTI., and another^
on the death of Bog^r Cheyney in 4 Hen. VIH.
The manor of Bleane and Hoade Court in tiie himdrod
of Whitstaple affords another example of the rule whioh
we are discussing. The estate (which had been the pnoh
perty of King Edward the Confessor) was given to Eiamo
de Crevequer as parcel of his barony, to hold in eapite. It
contained one ^^ suling," of which about a quarter lay in
•Hast?!iL den^esne, according to the entiy in Domesday Book ^.
Sir Hamo de Crevequer, who died in 47 Hen. m., has
been mentioned above in the notice of the manor of Buck-
ingfield. ^^He was occasionally styled Sir Hamo del
Bleane in ancient deeds" relating to this manor of Bleane
and Hoade Court. The inquisition taken on his death,
47 Hen. III. 33, shews that he was succeeded in it by
his heir at common law, Eobert de Crevequer; whereas
all his customary lands and tenements were divided among
the same Eobert and five other heirs male.
Hasted notices that in a subsequent reign the manor
was part of the dower of Margaret Lady Eos, who joined
with her son, in 32 Edw. III., in granting it to Eastbridge
Hospital in perpetual alms '.
' '' In the rentals of the manor of Blean mention is made of the pay-
ment of ' gate-silver/ a custom not often met with. It seems to be
a payment made by the tenants of the manor for the repair of the gates
leading to and from the Blean to prevent their cattle from straying and
xrv.] Tenure by Knight-service. 323
Still keeping to the Book of Aid, we find it recorded,
that John de Traly inherited from his father in 32 Edw. I.
the manor and advowson of Paxil's Cray, held of the honour
of Albemarle by knight-service '. Another portion of this
manor, being the estate called Kitchengrove, was held as
half a knight's-fee by another family \
Hasted's account does not seem to be accurate. He
speaks only of " some lands in Paul's Cray " alienated to
the family of Traly, the manor remaining with Simon de
Cray. The inquisition above quoted records that ^* Elea-
nor, mother of John de Traly, held the manor of Cray (as
part of his inheritance) in dower, and also certain other
lands which she and he together had acquired in the
same place *." • CaL Gen.
^ 6e3.
He gives some valuable extracts from the Book of Aid,
viz.: —
1. "John de Campaigne paid aid in 20 Edw. III. for
being lost." — {Hast, v. 530.) The Bleanwas anciently a forest belonging
to the king, and is still a thickly-wooded district, called the Ville of
Dunkirk. It is said that a keeper of this forest was appointed as late
as the reign of Elizabeth by letters patent.
It was for the most part alienated by the Crown in very early times.
Part was given to the priory of St. Gregory by Henry II., and the gift
of another part to the abbey of Faversham was confirmed by the same
king. Almost all the remainder was given to the Prior of Christchurch
by Richard I., to hold by the service of paying to him one pair of gloves
yearly, i.e. by socage in capite, a tenure in which hardly any of the pos-
sessions of that monastery lay. The custom of " gate- silver" has been
shewn in an earlier chapter to have prevailed throughout the Weald
of Kent.
It might be a difficult question to decide whether particular woodlands
in this district can be treated as gavelkind. At any rate, where such
land has been cleared within time of memory, we may notice that it
was originally the king's forest, and then held in capite by ecclesiastics
until the Eeformation.
• Inq. post mortem 32 Edw. I. 37.
* See also Inq, post mortem Margaret Scrope, 1 Hen. VI.
y2
w
324 pie Tenures 0/ Sent- - * [chap^
half ft kaight'8-fee, held formerly ot Simcm de Gmf in
Crey Faulin, by Peter de Hxmtingfield and Sinioiii at
2. <^ John delNilteney and others paid for half a kiil^tffl-
fee parcel of Paul's Cray, called Keohyngrove/'
3. Of Foot's Cray he says, ^^In the Book of AM is
entered thus: <0f Sir Simon Yagen and the Prior of
Southwark for one fee in Fotis Creyj which the hdis
of T. de Wardroba and the tenants of Boh. CreTequer
held of Hamo Crevequer, of which Simon holds a maiely
. . . and the Prior holds the other moiety, in the fields
called Le Hoke and Cray wood in this parish.' ^
4. Of North Cray: "In 20 Edw. III. it was held hy
Bog. de Rokesle and his co-parceners as half a knights-
fee^" These co-parceners, parHonariij are not oo-heirsi
but the persons of different names and families among
whom the whole fee had been subdivided by salesi or
marriage with heiresses.
There is no space here for citing many of the important
inquisitions of the reign of Edward II. The following
extracts from summaries preserved in the British Museum
may serve as a sample of the valuable information to be
gathered from them. It is to be hoped that the contents
of the records themselves may soon be published in a con-
tinuation of the Calendarium Genealogicum.
In 12 Edw. II. Hugh Pointz was found to hold half the
manor demesnes and rents of Hoo St. "Warburgh of the
king by knight-service. The other portion was held in
the same tenure by Hugh Grey as half a knight's fee \
"^ Hast. ii. 127, 130, 144.
* Hasted tells us that in the reign of John, Hubert de Burgh, Earl of
Kent, had been tenant of Hoo St. Warburgh, '* on whose disgrace it seems
to have become vested in Henry Grey and Hugh Pointz in right of their
XIV.] Tenure hy KnighUservice. 325
Another inquisition of some importance is that of John
de Orleston in the same reign^ omitted in Hasted's his-
tory, where however the Inq. post mortem of William de
Orlestone 12 Edw, I. 19, is cited. This last document
contains the assignment of dower at common law to the
widow of the tenant.
John de Orlestone was found to be the king's tenant
m capite by knight-service of two knight's-fees in the
manor from which he took his name. These included
a mansion or capital messuage, with 64 acres of arable,
30 acres in a place called Long Heath, 66^ acres in
Romney, 60 acres in Eucking, 11 acres in Marston, and
6s. 7d. rent-service from his freeholders. None of these
tenements were gavelkind.
The following is also an important piece of evidence.
In 34 Edw. I. Thomas de Hever, alias de Ifield, was found
by inquisition to have held the manors of Ifield Court in
Northfleet and Hever Court in Ifield, with certain lands
in them, of the archbishop by knight-service, and also
64 acres of gavelkind " in capite of the archbishop ^ ;" of
the former his eldest son was heir, of the latter both his
sons together '.
Before leaving the consideration of these early inquisi-
tions it may be well to trace by them with more minute-
ness the early history of one manor, both because the
account given by Hasted is somewhat meagre, and in
order to shew how many different proofs of the freedom
wives," co-heiresses of a previous owner. He cites the Inq. pod mortem
of Nicholas Pointz, 1 Edw. 46 (1 Edw. I. 17, in Cal. Gen.), Hast. iv. 5.
y See Browne v. Brooks^ 2 Sid. 153, for the meaning of this expression.
" Nota que fuit dit que nul gavelkind terre fut tonus in capite, nies ascun
fuit tenus in capite de TArchevesque per le Charter de Hoy."
■ Inq. post mortem, 34 Edw. 1. 55.
326 The Temtitmiif Kmk [chap.
from gavelkmd qualities of lands anciently held by km|^
service may be gathered from the inqoisiticms respeeting
one estate even in the limited period of two reigns only.
Boughton in the Bush, named Boltune in Domesday
Book, is a manor which before the Conquest belonged to
Earl Gk>dwin, and afterwards to King Harold his son. It
• Hvt. was therefore ^^ thane-land," or aUodium^. This estate
▼iL 880. J . _
afterwards formed part of the barony of Eustace, Eari m
Boulogne, to whom it was given by William the Con-
queror. The following extract is from Domesday Book : —
''The Earl (of Boulogne) has Boltune. Earl Godwin heU it
It paid tax then, and pays now, for seven sulings. There axe
thirty-three ploughlands of arable, of which three are held &
demesne, and thirty held by sixty-seven pillani (dbcage tenaniiij
and five husbandmen Twenty-six acres of meadow-wood
m for feeding two hundred swine/' &c.
^^ It was held," says Hasted, '^ of the Earl of Boulogne
by a family who assumed their surname from it," and one
of whom gave his name, Aluph, or Olaf, to the estate.
It is said in the Testa de Nevil to have been held by the
t Co. utt sergeanty of being the Earl's Veltraritis f, i. e. of finding
a man to lead his hounds. Aluph or Olaf de Boughton
held it by this tenure in the reign of King John. Elias
de Boughton inherited the estate, and was succeeded in
the next reign by Peter, his eldest son, as heir at com-
mon law *.
Stephen de Boughton then inherited the estate, and
dying in 14 Edw. I. left three daughters co-heiresses,
between whom it was divided. Of these, Idonea was wife
of Thomas de Gatesden, Joanna wife of Ealph de Otter-
* Inq. post mortem, 31 Hen. III. 11 : *'Petru8 filius dicti Eliae, primo-
genituB suus, ejus est proximus heres.*'
95 a.
XIV.] Tenure hij KnighUseimce. 327
inden, and Isolda was unmarried. The inquisition recounts
the assignment of dower to the widow, and the particu-
lars of division among the co-heiresses ^ *. • CaLGen.
In the next year Kalph de Otterinden died, and a ques-
tion arose whether the king or William de Leyboume
should have the custody of his lands and the guardianship
of the heir. The jury impanelled to decide this point
found, that William de Leyboume was entitled to the
custody of all the lands belonging to the said Ealph in
his own right, because he held nothing of the king in
capite except certain lands and tenements in Boughton
Aluph, and the third part of the advowson, and these
only in right of his wife, who was still alive. These latter
were part of the honour of Boulogne, which had escheated
to the Crown °,
Had any of these lands and tenements been' gavelkind,
the guardianship could not have gone to the king or other
chief lord, but must, according to the custom of Kent
and the general law of socage lands, have gone to the
nearest blood relation f, to whom the inheritance could tCo.Htt
not descend.
The widow Joanna married again in 21 Edw, I., and
died in the same year. A jury was thereupon summoned
to decide the right of her husband George Laverton to be
tenant by the curtesy of England. We may remember
that by the custom of Kent the husband is entitled to
retain for his life or until he marries again a moiety of
his wife's lands, and this whether issue were bom of the
marriage or notf. t Rob.
But in this case the jurors decided, that the widower d' "*
should have for his life the whole of the lands and tene-
^ Inq. post mort, 14 Edw. I. 17. « Inq. post mort.^ 15 Edw. I. 29.
328
The Tenures of Kent
m&^ expressly on the ground^ that iim^ Wf» bm^^bimg
themarr%age\
* Inq.post mortem, 21 Edw. I. 123. As the inquisitioE by which tliit
fact ifl known is curioosly minute in its detaile, it may be wod^ wM^^
to translate so m^ch of it as relate^ to the mattc^r mcntifmeil in tbe Urst.
It is extracted in the Calendar Oeneal. 469 :—
"Inquisition taken on the -death, of Joajina de Otti^riudcn, vnh of
George de Lav^rton, concerning the birth of mut^ of tbt ir iQiirnagt\ hj
reason of which the lands of the said Joatiaa uught to remaiEi In tht^
ownership of the said George de LaTcrton for bii life by the Curtesy of
England.
• " The jurors declare upon their oath that George de Lavefton married
the said Joanna on Wednesday^ the yigil of the CireuiiHasion, in the 2 lit
year of King Edward I., from, which time they dwelt together aa man
and wife until Monday on the vigil of St. Michat I 3 day m the s^mc yenr^
within which time she conoeiTed issue. And oa the day of her d(^
she bore a daughter at daybreak, after which she roccircd the last oB.^m
of the Church, and thereupon died on the same day. Which dnnght^r,
Andrew, Rector of the church at Otteringden, iu tlw chamber of the said
Joanna in Otteringden, baptized at the day-break uUvo vmd crying ("bap-
tisavit in auror& diei viTam et clamantem ") by the name Joauna. Her
godfather was John de "Wynefield, and her godanothtru Ele:irmr dt- Sin-
desham and Albreda de Stoneacre, who gave the name to the infant,
naming her Joanna as aforesaid. She lived from the time of her birth
before mentioned until sunrise of the same day, at which hour she died.
"Wherefore the jurors find that issue was born to the said George and
Joanna, as aforesaid, of the female sex, alive, heard to cry, and baptized.
And they say, that the lands and tenements held by them on the day of
the said Joanna^s death in Boughton Aluph were the inheritance of the
said Joanna."
These jurors appear to have attached great importance to the fact that
the child was heard to cry. Although the modem law does not require
this evidence of life, it is remarkable that the opinion was so firmly held
in ancient times, as we learn from Littleton. "Some have said that the
husband shall not be tenant by the curtesy, unless the child which he
halh by his wife is heard to cry, for by the cry it is proved that the child
was bom alive. Therefore quare.^* (§ 35.) Coke collects the opinions of
Glanville, Bracton, Britton, and Fleta, and cites the Stat, de tenentibm per
legem Angliae in support of the same ancient opinion, but concludes **that
the reason is against it ; it is but evidence to prove the life of the infjont"
XIV.] Tenure hj Knight-service. 329
No part, therefore, of the manor, advowson, lands, and
tenements was of the nature of gavelkind.
On the death of Thomas de Gatesden, husband of the
second co-heiress, we find it recorded that " he held nothing
in his demesne as of fee of the king ; but he held the fourth
part of the manor of Boughton Aluph of the inheritance of
his wife, who is still alive, and this was held of the king
in capite as of the honour of Boulogne ®."
The mother of these co-heiresses was endowed with a
rent-charge out of the lands of Boughton Aluph '.
She married Eobert de Burghersh in the year last meur
tioned, and, according to Hasted, died seised of this manor
in 34 Edw. I., being succeeded by his son, Stephen de
Burghersh *. * Hast. vii.
. . . S87.
But this statement is very inaccurate, as the following
summary of the inquisition taken on his death, 34 Edw. I.
41, will shew : —
*' Robert Burghersh holds two-thirds of the manor of Boughton
Alnph of the king in capite^ which portion pertains to the (es-
cheated) honour of Boulogne. It is held by the service of two-
thirds of a knight's-fee and attendance from month to month at
the king's Court in Witham."
An entry in the Book of Aid, 20 Edw. III., appears to
prove that the demesne lands continued divided among
the heirs and representatives of the three co-heiresses men-
tioned above : —
And he continues, " by the custom of gavelkind a man may be tenant by
the curtesy without having any issue." (Co. litt. 30 a.)
The minuteness of detail in the document above quoted shews con-
clusively that there was no suspicion of a gavelkind tenure.
• Inq, post mortem 31 Edw. I. 20.
' Inq.post mortem 14 Edw. I. 17, and 31 Edw. I. 8G.
330
The TemarmafKml
'^ThmiiaB de Aldon' paid fox* one kniglit^a-feQ ivliidL
de Oatosden, Job. PayneU» and Ge<»rge de Lavwtoii lieli iiiBifltai
Olaaf of the king as' of ike Hanoar of Boulogne.^
Of the subsequent deyalutiim of the estate, Hasted'd
account is perhaps suffid^it. Among other things he
has noticed that in 12 H^. YI. it was held at the commoa
law by a tenant by the ourtCBy in the manner above
described.
We have seen that besides these inquisitions /^o^/ m&rM^M
which contain a detailed history of the tenure ond descaS^
of each estate of importance in the county, there are m.
terspersed in many other records notes of judgments and
memoranda of tenure, which often enable U6 at the present
time to determine, without ; urther trouble, the questioa
whether particular lands are in a customary tenure, or
descendible at common law.
i Thus in the published abridgment of the Pleas of the
•Mie.9 Crown it is recorded* that Boynton, in Swingfield, ym^
a " free manor," which is further confirmed by the roll of
lands held by castleguard of Dover Castle, and the in-
quisition on the death of Nicholas de Criol, 48 Hen.
III. 39 ^
8 " In Boughton Aluph was the ancient seat of the noble femily of
Aldon. William de Aldon was at the parliament of Clarendon among
the peers and barons, and E. de Aldon was Marshall of the Horse to
King Henry III."— (Jf^. Booh of the Tenures of Lands in Kent fnm
the Records^ hy John Fhilipot, Blanchlion; Zansd, MSS,, 276.)
On the fly-leaf of this MS. is a note, " This book is of great use ftr the
county of Kent."
Cyriac Petit, in his "Notes on the Feodary of Kent," mentions that
the manor was held by military service of the Crown by the family of
Kempe, and quotes the inquisitions post mortem of T. Kempe, Bishop
of London, 4 Hen. VII., and Thomas Kempe, 13 Henry VIII.
*" By a suit arising out of the Parliamentary Survey of 1649, thecommoD)
XIV.] Tenure by Knight-service. 331
In the same plaoe we find that ^^ Charing manor" was
also held at the common law *. This was not the para- • inoert.
mount manor of Charing in the parish of the same name,
for that was known as "proprium manerium Archiepis-
copi," and was retained by the archbishops until the reign
of Henry VIII. But there were several subordinate manors
in the same parish, to one of which the notice probably
refers. We know from other sources that several of these
were descendible to the eldest son. Thus Stilley is enu-
merated among the " ancient knight-service lands "^^in^the
Testa de Nevil^ and the tenant " is mentioned to have paid
aid in the reign of Henry III. at the marriage of the
king's sister, for lands which he then held in Charing f."tH«it.Tii.
On p. 261 of the same abridgment it is noticed that " Ick-
ing " was anciently held by military service, and was not
gavelkind as early as the 8th year of John. In the same
way the free tenure of Stowting is affirmed {, and other t Om\mk,
manors and lands, the freedom of which may be verified r. 3.
by reference to the Book of Aid, the Feodary of Kent, and
similar authorities.
The history of the manors of Burmarsh, with Abbots-
Court and Beamston, in Westwell, is of importance to the
present enquiry, not only as shewing the freedom of the
particular demesne lands included ia their boundaries, but
also as establishing still more firmly the rule which has
been illustrated in this chapter, and which applies to so
many estates throughout the county.
The former of these estates was from very ancient times
held by the abbots of St. Augustine's in francalinoigne,
and formed a portion of the abbot's barony at the Conquest.
According to Thorne ||, the chronicler of the abbey, it was II -Oewn
Scripts
Or waste land, of this manor was found not to belong to the Crown, as
Bupposed, but to be part of the barony of Polkstone. (Hast. viii. 122.)
▼m.200.
given in francalmoignc in the middle of tlie ninth century
by a laymaDj '*[is freely as hia lord had before given it to
him," This indicates that it bad been held freely^ or
allodial ly, as *^ thane-land." In Domesday Book it is de-
ficribcd as contaiaiug two ** sulings" and three qnar!i?n
(yokes). It was held by the abbey until the dissolutioa
of monasteries^ when the king '^granted this manor, with
Abbots-Court (the principal mansion^ or conrt'lodge), to
Walter Ilendleyy Esq. ; and he seems very soon afterwards
to have conveyed it back to the Crown, for I find a grant
of this manor, with its appurtenances, to Sir William Finch,
of the Moat (near Canterbury), and his heirs male by his
wife ICatherine, to hold in eapiie^J^^
He died leaving by her 'Uwo sons, who successwei^ he-
came possessed of it by virtue of the above grant." Hati
the manor and demesnes been gavelkind, the two som
■would have divided the inheritance as heirs male bv tha
custom. So much we learn from Hasted. But there ii
preserved in Chancery the record of subsequent proceed*
ings not mentioned by him, which finally proved beyond
a doubt that lands thus held by the abbey are not partible
by the custom. Both the sons above mentioned hafisg
died without issue, they were succeeded by their half*
brother, Sii* Thomas Finch, the reversion having beos
secured to him by letters patent in 5 Elizabeth. On hii
death a dispute arose between his sons, which has J^d
been reported, but the papers relating to which may be
fouud by reference to the Calendar of proceedings in
Chancery in the reign of Elizabeth. The bill contaiBS
the usual claim, that the land lying in Eent must be takon
ta be gavelkind, and Sir Moyle Finch, the eldest son an«l
heir-at-law, shewed by his answer that from time imnit**
mortal the property in dispute had been held by the abbot
XIV.] Tenure by Knight-service. 333
of 8t, Augustine's iri capite by military service ; the proof
was oarried back as far as the Conquest, so that the pre-
sumption of gavelkind was repelled, and the estate was
retained by Sir Moyle Finch as heir at the common law K
In the same way he inherited the estate formerly known
as the manor of Beamston, in Westwell, which at the Con-
quest had been held by a military tenant of Odo, Bishop of
Bayeux. It is frequently mentioned in early records, in-
duding the Book of Aid, as being held by knight-service
as part of the barony of Say.
The manor and demesnes having been separated from
the services of the tenants, the manorial rights were de-
stroyed ^. But the demesne lands retained their freedom,
though the manor was destroyed, and have always been
descendible to the eldest son.
We may illustrate the value of this case oi Finch Y.Finchj
by recalling what was said by Hasted of the manor and
demesnes of Sturry : —
"The manor, with the rectory impropriate and several farms
and lands belonging to it, continued in the descendants of Henry
E<^r Lord Teynham, in like manner as that of Ashford already '
described in this history, till it was with that manor sold under
the direction of the Court of Chancery in 1765 *." • Hast. ix.
•^ 79.
Now we have noticed in the preceding chapter on
Tenures by Barony and Castleguard, that Hasted was
wrong in supposing the manors of Ashford and Sturry
to have been divided between coheirs in gavelkind: and
that the private Act of 29 George II., mentioned by him,
related to gavelkind tenements as well as to these manors,
* See the inquisition taken on his death in 1614, preserved at the Office
of the Public Kecords.
* Sir Moyle Finch's Case, Co. Entries.
334 ^f^ Tenures a/ KenL
so tbat part of the y m aiapuie uescended to the
elder bro tl rest to the two brothers m
co-heirs by t c l of nt. This explanation will be
confirmed by o ing the history of the manor of Stum
with that i Bun pro^ id by the case ot Finch t, Fuick
not to have elkind. Both were given long befon;
the Conquest to the abbey of St* Augustine in fraocsl-
moigne, and both are described in Domesday Book as
parts of the abbot's barony, in which they continued with-
out interruption until the reign of Henry VIII, They
could notj therefore, have been of such different tmxm^
as that one should be descendible to the eldest son^ and
the other in gavelkind. Thus the freedom of Burinarsh
implies the same free tenure in all the estates held by tbe
abbot by barony at the date of the Domesday Stirvty:
for instance, as to the two manors of Eepton in the same
parish of Ashford, which were always held of the abbot
by knight- service, as appears by the Tmia de NevU aad
the other rolls of military estates in Kent. Again, the
manor of Snave or Snavelees ^ was originally part of the
same barony, and held of the Abbot on the same terms.
The Book of Aid 20 Edw. III. contains a note, that lands
called Bakers and Bamards, alias Snavelees, were held
by ancient knight-service by the family of Orlestone. In
35 Henry VIII. this estate was divided between a tenant
named Pickering, and Sir T. Wyatt.
In the same way we can shew the freedom of those
other manors and demesnes "", once held by the abbot or
» "I find,'' says Hasted, "that as high as King Richaid this KM's
reign John de Snave held land here by knight-service of the Abbot of
S. Augustine's. W. de Sokenesse held it in like manner of the abbot
and convent about the reign of King Edward III." — {Hast. viii. 395.)
"" The abbot's manor of Stodmarsh affords an example of what has been
XIV.] Tenure hy KnighUserince. 335
his militaiy tenants, which now are in lay hands, as well
as of those which are held in francalmoigne by virtue
of the grants of Henry YIII. to his new cathedrals or
otherwise.
Among the former are the two manors of Garwinton,
Elmstone, East Langdon, and very large estates in the
parish of Northbome. To these may be added Hippie
Court and the manors of Hull and Swaycliffe, which are
stated by Thome to have been held from very ancient
times by the abbey ; and Minster in Thanet, the history
of which has been noticed in the earlier chapter on Kentish
measures of land.
The same point can of course be demonstrated in each
instance without reference to the proceedings in Finch
V. Finch ; the proof, however, is rendered easier by the
feet that all these estates were held by the same owners
uid under precisely the same circumstances for so many
centuries.
There are several more memoranda in Petit's Feodary,
which are worthy of notice. As for example, that the
estate called Owlie in Wittersham, comprising 200 acres
of arable and some woodland, was held as half a knight's-
fee at the date of the Book of Aid by the family of Passe-
lewe, and by Eeginald Peckham in 35 Henry VIII. in the
same tenure.
There is also an entry respecting the estate known as
Brising in the parish of Langley to this eflfect : —
" Thomas Culpeper paid the military aid due in 20 Edw. III.
or half a knight's-fee held by Sarah de Bresiiig in Bresing and
laid respecting the value of ancient exemptions from tithes ; the demesne
ands, which were held in barony, are distinguished from the gavelkind
terra viUanorum) by their freedom from all charges from great tithes by
reason of an ancient commutation. (Hast. ix. 146.)
The Tenures of Kent
Langley, of Willi am de Ley bourne : this was held in 35 Henry
VI IL by the widow of John Astiy, who died in that year, ll
comprised two acres of land and t«n Bhillings ri^nt of a&mzMt from
freehold tenants in Brisingj held of the king as parcel of his
manor of Langky, {which was within the fee of the Dnchy of
Lancaster). This appeared from the inqaiaition tak"?n on the death
of John Astry, 35 Hen. VIII,, and it was likeirise proved to the
Commissioners at the time of taking the inquisition, that the^
lands in B rising were held by knight-serTiee* In proof of which
an indenture of lease of the same lands of the dat€ of 5 Edw, IT.j
waa produced in the Court of Wards and Liveries by the nnele of
the said John A&try,"
As an instance of the way in which the estates held by
ancient knight-service became subdivided araoog the de-
scendants of co-heiressc8, we may take Petit's entry re-
specting a small estate in East Sutton or Sutton Comt.
The principal manor with the demesnes were " held bj
Hugh Soldanks by knight-service in the reign of Heniy
III. ; his descendant, Stephen Soldaukj held it in the reigQ
of Edward I., according to the Book of Knight's- fees in the
• Haat. ix. Exchequer *."
Soon afterwards the manor and most of the lands in it
appear to have been acquired by the Abbey of StAugoB-
tine ; but some of the demesnes remained in lay hands.
William de Northborne was owner of 56 acres of this
ancient knight-service land, and paid the military aid for
it in 20 Edw. III. as for one-fifth part of a knight's-fee.
In the reign of Henry VIIL the same service was due
from the estate, which was then held by four different
owners, in the following proportion : 40 acres belonged to
John Holday, 12 acres to T. Paynter of Dover, and 3 acres
a-piece to Philip Verrier and T. Fynes.
In Hasted's notes upon this record are also found memo-
XIV.] Temare by Knighf^ervice. 337
randa of the ancient military tenure of Stansted, which is
not separately described in Domesday Book, and which
therefore might have been presumed to be gavelkind, were
it not entered in the Book of Aid, and of Woodfold manor
in Yalding: of the latter it is said in the Book of Aid,
'^ Nota^ no rent is paid by the tenant of this land, and it
is held by military service."
Another curious note refers to the manor of Bere or
Byer Court in West Cliffe : " And it is to be remembered
that John Tuck, tenant of the manor of Bere, has always
paid for it to the SheriflF of Kent a certain yearly rent
called Blanch-rent, and likewise pays towards the wages of
the knights of the shire^ and thus it appears plainly that he
holds by knight-service.^^ In the reign of Henry VIII. the
manor was held by the same family of Tuck or Tooke, as
(together with West Cliffe) one knight's-fee in capite.
Again, the manor of Godwinston mentioned in the Book
of Aid, is further proved to have been held by ancient
knight-service by a reference to the EoU of lands, for
which the tenants paid the feudal aid towards the marriage
of Blanche, eldest daughter of Henry IV. Petit has further
noted a division of the demesne lands between the daugh-
ters of B. Graveney in the reign of Henry VIII., and the
sub-division of a third part between the heirs of one
daughter, named Kempe, Judd, and Maxton ^
■ This " Godwinston" is probably Goodneston in the Hundred of Wing-
l^am. See Kent. Arch. Soc. v. 275. It must not be confounded with
the Godwinston or Goldwinston near Sittingboumc, which was ancient
demesne and gavelkind. See Originalia in the Exchequer, 3 Edw. III.
r. 1 1 : ** Whereas it is shewn, that Juliana de Leyboume, deceased, held
the manor of Goldwinston with its appurtenances in gavelkind of Isabella,
Qneen of England, and that Henry and Juliana her children are her heirs,
&c." See also Inq, post mortem William de Leyboume 3 Edw. II. 56,
and Juliana de Leybourne 41 Edw. III., Kent. Arch. Soc. i. p. 1, and v.
p. 193.
Z
338 The Tenures of Kent [chap.
This roll of Blanch-lands, long preserved in the Ex-
chequer as evidence of Kentish tenures, and now among
the State papers, is a very useful document for the pur-
poses of the present enquiry. Hasted made some use of
its contents in his history, and among his Ml^. are ex-
tracts from it, among other " transcripts and various notes
from the rolls in the Exchequer relating to Kent."
A few sentences will shew the value of these notes.
Besides Godwinston we find fifteen other estates of im-
portance which paid this aid, which was not levied on the
military lands throughout the whole country as in the case
oftheaidof 20Edw. III.
One of these was Lowden in Kolvenden, which (as
Hasted has shewn with sufficient clearness) was held bj
ancient knight-service. He proceeded indeed with less
precision to write of a partition obtained by the gavelkind
co-heirs of its tenant at the end of the seventeenth cen-
tury. It must be observed, that this "ancient knight-
service manor " descended (and was not " allotted") to the
eldest son, and the customary lands in Eolvenden, Be-
nenden, and Sandhurst, were alone affected by the writ
of partition "*.
Several estates within the liberty of the Duchy of Lan-
caster, the court for which has been held at Famborough
since the reign of Henry III., are inserted in the Koll of
Blanch-lands.
Such are the ^'ancient knight-service" manors and de-
mesne lands of Cholsficld and Goddington, of Norsted and
Goddington alias Wattons in Frindsbury, for which tlie
family of Goddington paid aid in 20 Edw. III. Besides
o Hast. vii. 193. He cites the Testa de Nevil and the Book of Aid, as
well as the Roll of Blancli-lauds of 4 Hen. IV., and the reference to the
writ of paitition among the heirs of Kadwell. (CI. 565, Trin. 1, JacH-
XIV.] Tenure hy KnighUservice. 339
these we find in the same list Famborough and Kemsing,
the ancient inheritance of the Grandison jEamily, and among
others the manors of Hastingleigh, Aldelose, Monk's Hor-
ton and Horton Kirkby, Braboume and the Pound Farm,
Shelford, and Sutton Hastings p.
Sellindge, a castleguard manor belonging to the Lord
Warden's barony, is placed in the Feodary of Kent among
the " ancient knight-service lands."
The correctness of this is shewn by the proceedings
before the Justices Itinerant at Canterbury in 21 Edw. I.*, •Hast.
and the inquisition post mortem of Peter Fitz-Eeginald in ^^'
16 Edw. IL, as well as by later entries in the Escheat
Bolls, as for example, "Julia Inglethorpe holds one-third
of the manor of Sellinge of the king in capite by military
service, 10 Hen. VII."
Concerning Darbies Court in Stalisfield we find this
note: —
'' Sara de Darby paid aid in 20 Edw. III. for a quarter of one
knighf s-fee^ which William de Darby and the heirs of T. Franklyn
held there by knight-service in (the hamlet of) Wingfield. Now
(35 Hen. VIII^ it is held by Anthony Sands by knight-service
as appears by the evidence of John Je&ey there dwelling.'^
And with reference to the estate disputed in Lowe y,
' The ancient tennre of all these estates can be verified by the usual
reference to Domesday Book, the Testa de Necil, &c. ; but in reality the
entary on this roll of Blanch -lands is sufficient to shew that they descend
at common law. No gavelkind land paid these aids, and one entry of
payment is as good as several.
Hasted gives a reference to another of these aids in writing of the
castleguard manor of Erensham in Eolvenden, viz. : ''In the 20th
year of Henry III. it was in the possession of a family of the same name,
as appears by the Testa de Nevil. John de Fresingham held it then,
and paid aid for it, as holding it by knight-service, at the marriage of
Isabel^ that Prince's sister."— (iZiw^. vii. 194.)
340
The Tenures of Kent.
[oitf.
JParamaur% and wrongly supposed by Basted and Bobin-
son to have been gavelkind, he writes : —
^^Sarty manor, Champion's Court (in NewnhiunX and Hortoii
(jXL FaTersham Hundred), are all of the same tenoie^ and imp
castlegaard rent to Bochester Casfle, as is shewn by tibo infuin-
Hon post mortem of William Capell in 7 Hen. VUL'* .^^^^^_
The inquisition post mortem of Anne, heiress of Thomas
Oobham, taken in 20 Henry Till, shews, that the manor
of Allington Cobham was held of the king by knight-
service in chief; that the manor and lands in Orke&den
were held of Lord Zouch by the same tenure, and those
of Yielston of the Archbishop of Canterbury by the same
military service'. 1
In a volume of memoranda by Hasted^ which is pre-
served in the British Museum, is an important note con-
cerning lands in Tirlingham, Newington, and neighboming
parishes.
4 Besides the evidences given earlier in discussing that snit, on which
Robinson grounded a doubt whether trial by battle was not allowed in
actions for gavelkind land, we may refer to the Escheat Bolls for the
Inq, post mortem of Roger Cheyney 15 Hen. VII., R. Cheyney 4 Hen.
VIII., and of Sir T. Cheyney, 1 Eliz.
The Long House Farm was part of Harty manor, and therefore of the
same tenure as the moat, claimed in that suit. This farm was held by
John de Criol by knight-service in the reign of Edward I. (see Inq. poH^
mortem Bertram de Criol, 23 Edw. I. 48), and is therefore entered in the
Book of Aid 20 Edw. III., when it was in the ownership of Mary, widen
of John de CampaniA : it then consisted of a messuage and 400
of marsh land, as appears by Petit's notes, to which Hasted refers,^^^^^
(vol. vi. 279). In the reign of Henry III. the whole manor of Harty^^;^
was held by knight-service by Robert Champion or De Campani&. {T»(mim ^^
de Nevil.)
' Orkesden is now called Aston Lodge. It was anciently held of th^^ — ^
Archbishop of Canterbury as part of his barony. See the Tetta de Aeri?
and the list of the military lands held of the Archbishop in the Red
of the Exchequer, 132.
>
xiy.] Tenure hy KnighUservice. 341
By the inquisition taken on the death of Henry Herdson
2 and 3 Philip and Mary, 5 Eliz. and 20 Eliz. pt. 5, it
was found that he held the manors, with lands contained
in them, of Newington Belhouse and Bertram, Newington
Fee or Dimchurch, Tirlingham, Wolverton, Ackhanger,
Bwetton, and Wolton, being parts of the barony of Folk-
stone and held by tenure of castleguard, with the manor,
castle, and park, and site of the priory, in Folkstone.
All these were held of the' Crown, by knight-service, from
the most ancient times. The jury found, that of these
lands and tenements Thomas Herdson his eldest son was
heir, although it appears by the will of H. Herdson that he
divided his lands among all his sons, giving portions of
land to the two younger, which else according to the find-
ing of the jury, would have descended to the eldest as
heir-at-law.
In the same volume Tottington and Eccles, manors which
we have before noticed to have been held by castleguard
of Eochester Castle, are proved to be held in capite by
reference to the Escheat EoUs \ We have shewn earlier
that they were never held in gavelkind.
The same proofs are produced for the manor of Burde-
ville *, and for Eingley Wood in Great Buckland \
An estate containing 100 acres, and belonging to Ley-
bourne Eectory, and situated mostly in Wrotham parish,
• Inq. poit mortem of Thomas Palmer, 23 Hen. VII. ; of Edw. Poy-
ningB, 14 Hen. VIII. Eccles is further noticed to have helonged to the
Duchy of Lancaster.
* Inq. post mortem of T. Cobham, 20 Hen. VII., and of his daughter
and heiress Anne Burgh in 20 Hen. VIII.
■ Th. Frognall, inq. post mortem 20 Hen. VII. ; Edw. Norwood, inq.
post mortem 2 Hen. VIII. ; T. Godding, inq. post mortem 25 Hen. VIII.
And for the freedom of the whole manor, inq. post mortem of Henry Lee,
80 Hen. VIII.
I
I
is shewn by the Book of Aid and the notes upon it in the
Feodary of Kent^ to hare been held by ancient knight-
service as one- thirtieth part of a knight 's-fee (the aid paid
being ICd, at the rate of 40a, per knight' s-fee), ■
There are also several notices of lands which had been
disgavelled in early reigns, and converted into * frank-fee,'
but the consideration of these must be postponed to a later
chapter.
Enough has been quoted to shew that there need be at
the present day very little doubt as to the tenure of lands
belonging to any of the principal manors throughout the
coimty. The notes of Cyriac Petit identify the estates
mentioned in the e^ier Book of Aid down to the end
of the reign of Henry YIII,, after which time it is com-
paratively easy to trace with particularity the descent and
history of the lands. The later inquisitions post mortem
are also of great service in this respect, as they contain
the history of all the landed estates in the county down to
the abolition of the feudal system, at which time the con-
fusion respecting tenures seems to have existed, which has
made many heirs-at-law divide lands as gavelkind upon an
intestacy, to avoid the trouble and expense of searching
among unpublished records for proofs to rebut the common
presumption of customary tenure.
I
^
CHAPTER XV.
Tenure in Socage.
Authority of the Book of 'Aid. — ^Tenures in eapite, — The Baronies of
Boulogne and Peverel. — Custom respecting Knights of the shire in
Kent. Conv ersions of military tenure into socage m eapite, — Rents in
kind.— >l77! &'ifA!/ ( Lfc ' , CAl'JLLL, SVItMAM, H^Vim S COURT,
BUCKLAND, — Rent service of a rose. — Manors held in capiU hy the
Ahhey of St. Mary Grace. — ^Estates of St. Stephen's Chapel, y(e9\^
wjDi^r.—MAPLESCOMBE.HOCKENDEN, MINSTER in Thanet,
8WANSC0MBE,^^^\aU% of the Cohham i^xD^j.—OXENEOATE^
PRESTON, ROTING.—Caae concerning lands in PZUMSTEI).'-
Manor of EALTON.
ISToTWiTHSTANDnirG the narrow interpretation put by some
writers on the clause respecting gavelkind tenants in the
act of 18 Henry VI., we have seen that a very large
amount of land was at that very time held by knight-
service in Kent. The same proof might easily be arranged
for every reign down to the end of the feudal period,
chiefly by means of the inquisitions post mortem^ which
did not cease to be of value in proving tenure until late
in the reign of Charles I. Some of the later inquisitions
will be cited in the Appendix among Gyriac Petit's notes
on some of the entries in the Feodary of Kent.
But the Book of Aid of 20 Edw. III. must after all
continue to be the paramount authority for determining
which lands were held " by ancient knight-service." This
book, as we have seen, was illustrated in each reign by the
notes and memoranda of the officers of the Exchequer, so
that the various estates therein mentioned are identified
and assigned to their later owners. The copy used to
344 TheTemtres^ofKml \ma.
\
a great extent in forming the Appendix to thifl tfoatifle,
was noted down to the end of 1612,
We may here conveniently recapitulate some of fiia
reasons for the ya\ae thus assigned to tihis record. l%e
. list of lands was taken from those earlier retomiE^ preoerfed
in the Black Book of the Exchequer and the i3%rfti A
'NevU or Book of Enight's-fees, winch were fiimidied 1^
the immediate tenants of the Crown, when miy of the
three great feudal aids were required by the king. ^Rie
returns were compared with surveys taken by the vxpH
officers, and when found to be correct were preserved ^ in
the hutches in the Exchequer," as evidence of tenune Inr
future occasions. •
These aids for the king's ransom, for marrying his eliaer
daughter, and knighting his eldest son, were paid only bj —
those persons who held immediately of the Crown, ie. '
were in the formal sense of the phrase ^ tenants in
The most that could be levied was a sum of 40s. finr <
knight's fee or portion of socage, worth yearly £20,
held in capite.
Thus we learn from Madox that "in the elder time=s=sss8
aid was paid by those who held lands of the king b ^^ r
barony, or by knight-service, or by sergeanty, togethe^r
• Madox, with knight-service, or by socage in capite*. ^^
572;* ' Being levied exclusively on tenants in capite^ they coul ^^
Ge!S^i.39. not be taken from gavelkind lands f, none of which wer*"*^
Pro ^^^ ®^ ^®^^> unless we may speak of the tenements in the for
Report manors of ancient demesne in Kent as " gavelkind ^^
capite ;^^ but these last lands are not mentioned eith^^^
in the Book of Aid, or in the earlier and later recorA-^
of the same description. ,
The aids pour fiUe marier and pour faire fits chevaUef
•were not due from any lands held anciently in francal-
XV.] Tenure in Socage. 345
moigne, or from the socage tenements held of the military
tenants of the Crown *.
The only lands not anciently held by knight-service,
which are named in these rolls of knight's-fees, are those
which had been disgavelled by charter or license of the
king before their compilation, as will appear in the next
chapter.
The KoUs of Parliament furnish us with an example in
the reign of Henry VI., of the use which was made of the
Book of Aid in determining tenures of land in Kent *• • Rot.
, ParL iy.
In the ninth year of that reign the Commons granted 869.
an aid or subsidy to the king ; this was not actually
collected f, but the proceedings relating to the grant will t iwd.
illustrate our point.
It was resolved that the aid should be charged on all
military lands held in capite at the rate of 20s. for each
• " The abbot of Burford discharged of paying aid, provided it be clear
that he holds in francalmoigne, and that he pay for all held by knight-
Bervice."— (i2o<. Pari ii. 222, b.)
Madox, Exch. i. 529, and cases there cited : SunninghalVs Case, Brev,
Mic. 2 Edw. II. 31 ; Cockfield's Case, Brev, Mic, 9 Edw.'II. 7. See Co.
litt. 93, b, note 3.
It should be mentioned that lands forming part of certain baronies,
while in the king's hands, were .considered to be held ut de Corond, and
not merely ut de honore. Such were the baronies of Boulogne, Peverel,
.and Haghnet; "as to the ancient honour of Peverel, nota, the tenure is
in eapite, but some new additions to the honour were not so, e. g. the manor
of Woodham Mortimer. It was found in Church's Case^ that tenure of the
honour of Peverel was in capite'^ — {Co, litt. 77 a, n. 1.) See the inq.
post mortem of Hamo de Gatton, 20 Edw. I. 25, who " held the manor of
Trewleigh in Kent of the king in chief as of his honour of Peverel by
knight-service ;'* and the inq. post mortem of Alice and Richard Charles
in 1 Ric. II. and 9 Ric. II. 135, who "held Great Delce in Kent of the
king in chief as of his honour of Peverel and Haghnet by knight-service."
--{Hast. iv. 170, 545, viii. 489.) In the same way Boughton Aluph, Wil-
mington, and other manors, were held of the Crown as parcel of the
hdhour of Boulogne.
346 ThBTmur$8 0fKmL [d
knight'fl-fee, proTided that persoiui hoU&ig
Kent, who were diaigeaUe for tiie wages of iStm
of the ehire^ should pay lOs. finr tiia eaiiie esfaito. &e
Book of Aid of 20 Edw. HI. was expteoAy tdm it As
canon for determining whioh were tiie militerf bnAg Md
w raj^, and it was farther provided tiiat 110
should contribute for lands, which were giren in :
before the comidlation of tiiis Book of AM.
The ancient rule obserrod in the compQatisoii cf Hk
book, was as follows: — '^The aid sl^ be paid now
(20 Edw. III.) as by andent law or custom wm usedi tnm
every knight's-fee and every estate worth yeari^ £M sf
socage held immediately of the Grown."
Much knight-service land was in diflEbrent re^gnS
b An instanoe was fpren. in flie preoeding chapter of land
to be ^^ancient knight-B^rvice,** and not gayelkind, beoanae tte
contributed to the wages of the knights of the shize. Then $am aevaeal
notices of this usage in Kent upon the Bdls of Ptaliamen^ wUA hm
not been in general noticed in the histories of the comniy.
Thus in 2 Eic. II. the Commons presented a petition, that the usage
of Kent should be made to conform to that of the rest of Knglani^^ not —
withstanding that the said wages had before always been leried on th^^
military lands ("fees de Chivalers de diet Counte de Kent*') and n^e=^
others. But the king ordered the ancient usage to be obeenred. (Rotr
Pari. iii. 53 a.)
And in 2 Hen. Y. a petition was presented to the king praying that o^K
military tenants in Kent (excepting the tenants of ecclesiastics and temr^^
poral peers) should contribute to these wages, and that none should be ex ^=^
cusedy and calling attention to the immemorial usage of the county; tha*:^^
none but tenants by knight-service should contribute. "Comme les \
de Chivalers qui veignent al Parliament pur le Counte de Kent ne sount ]
levables de autres gens, soloncque la custume illoecqs de tout temps don^^^
memorie ne court use, sinoun de ceux qui teignent lour terres dans Ken-:-^
par le services de Chivalers," &c. This petition was granted. The notp*^
previously quoted from Cyriac. Petit shews that the custom remained ii^^
force during succeeding reigns, and it might in some cases be very usefu^^
to shew that particular lands contributed to these payments, as an
dence of tenure.
XV.] • Tenure in Socage. 347
to socage, as indeed has already appeared in discussing
the tenure by petty sergeanty, which was but a dignified
species of socage. There is no need here to make more
than a simple reference to the judgment in Gouge v. Woodin
and Dionysia NoeVs Case^ to shew that such a conversion
of military land to " frank- fee" did not create a tenure in
gavelkind.
The number of estates held by knight-service was in
fact continually diminishing from the first creations of
petty sergeanties to the date of the dissolution of monas-
teries, when as will be seen later, the number of military
estates was again increased. It is proposed in this chapter
to consider briefly the tenure of those estates which thus
came to be socage in early times, remaining nevertheless
descendible at common law.
The change of tenure took place in various ways.
1. By the creation of petty sergeanties and tenures
analogous to them, being varieties of socage in capite.
2. By direct grants of the land with reservations of
a definite rent in lieu of all services ^
3. Some of the castleguard manors were held in socage,
although those held of Dover Castle appear to have re-
tained their military incidents.
4. The tenants in capite commuted the military services
of their sub-tenants for a rent certain, or personal services
analogous to the king's petty sergeanties.
5. Lastly, the tenure of francalmoigne was changed to
socage, whenever the lord aliened the seigniory, or the
tenant aliened to a layman *. • Co. litt
98 ft. 99 b
The tenure of socage in capite was changed by the
• *' Quant le Roy dit * pro omnibus servitiis et demandis/ donques il
expresse son intention que seroit Socage." — {Stephen v. Holmes, Litt 47,
33 Hen. VL 7, 7 Co. 123, Lme's Case.)
348
IJkeTetiurisafSjml
l0m.
statute 12 Car. 2, o. 24, into free and commoB socage,"
and its distinctive burdens were then abolished. Its only
importanoe, thereforei at the present day, so far as this
enquiry is ooncemed, lies in the fact that full proof
a tenure in socage in eapite^ ptoperly so called^ is an answ^
to imy presumption that the land was ever gavelkind.
We have before shewed that *' gavelkind in capik^
could only exist in the four, manors of ancient demesue
in this county.
Besides the petty sergeanties above enumerated, we fii
many instances of lands (at first military) held of the king
lis
me,.
41
• Co. litt by a " free service *," nojt pertaining to war, and only to
be distinguished from common goeage by the fact that th
I
IriTig was the immediate lord of the fee.
Such were the tenancies where the service of a ship ^ foi
the king's passage to Gascony was due, or where the tenant
was bound to provide a laeider of hounds % a keeper of
^ The tenant of Bekesbome, aUas LeTiDgsburn, wbb bound *'to ^o^l
a ship called a Baard/' for this purpose. (Blount*8 Tenures, 288 ; Hmidied
Boll, 3 Edw. I., Kent.) It has been placed under the head of estates
held by sergeanties in a former chapter, because by other records it ap-
pears that a ship was due from this manor, as well as that of the Giang*^^
in Gillingham, as belonging to the port of Hastings, and witlun tli^fc-*
liberty of the Cinque Ports, They are therefore included among tfc^
lands held by sergeanty in the list at the end of the Iksta de JV<«— ^*'
(Kent).
A very ancient record, compiled by Michael Berisford, Feodazy ^^^^
Kent (a copy of which is found among Lambarde's CoUeetanea HUiorict^^)^
contains this account of the two manors : ^* lis trouveront oes (2) ne
sur la somonce de 40 jours, armees et en chescun neif 20 hommes, et
maistres des mariners, et ils (the tenants) maintiendront a lenr
demesnes" (at their own expense). — {Cotton. MSS, Vesp. A. 6, 67.)
For the tenure of the Orange estate in later times by the service **^**
a ship, see Inq. post mortem Edward Bam, 20 Hen. VJJL.
* See an inquisition on the death of John Engaine, 31 Edw. I^ -'
Calend. Geneal., 777 : — ** He held a mansion and fourteen virgates ^^'
land by the sergeanty of finding keep for the king's harrieisi and bract^'
XV.] Tenure in Socage. 349
falcons, and the like, or was required to pay rent to tho
king either in money, or necessaries for the chace and
the household'. Thus in the reign of Henry III. tho
estate called Sotmere, in the parish of Capell, was held
by the great family of Criol by the service of finding
" nine leash of greyhounds " for the king.
The manor of Burham ^ was at one time held in socage
m capite^ the tenant being bound to provide a ship when-
ever required by the king; and the early records would
hounds for the chace and capture of hares, foxes, wolves, wild-cats, &c.,
in the forests of four counties."
' " There was hut little money in specie in the realm in those early
times (before the reign of Henry I.) Bents duo to the king were wont
to be rendered in necessaries for his household. Afterwards tho revenue
of the Crown was paid chiefly in gold and silver, but sometimes in horses,
hounds, birds for the chace, and other things." — {Madox, JSxch.f i. 272 ;
Dial, de Scacc, i. c. 7.) Thus Stephen de Heringod, a Kentish landowner
Beveral times mentioned above, is said to have paid the king 378. and
one foxhound ("canem wulpecularem"). — Memor, 32 Hen. III., r. 15.)
And (according to Madox) E. Engaine accounted for 100 marks in
money ^'et quatuor gupillercttis," which seem also to be foxhounds.
(Mag. Bot, 15 Joh. 8.)
For a curious tenure of the manor of Henwick, in Northamptonshire,
held by the Lovett family of the Engaines by service of chasing tho wolf,
(" fdgacionem lupi quam I. Lovett pro terr& mihi debebat,'') see tho deeds
cited in Collect. Topogr., vi. 300.
The monks of Christchurch paid to the Crown one pair of gloves yearly
for their estate in the forest of Bleane before described. {Lib. EccUs.
Christiy Cotton. MSS. Vesp. A. 5.)
« Burham. (Harl. MSS., 313, 11; Blount, Tenures, 292; Co. litt.
108 a.) Hasted does not mention the tenure, but says enough to shew
that the land was held at common law. It was part of the barony of
Odo of Bayeux, by whose military tenant one-fourth of the land was held
in demesne. William de Saye was found by inquisition, 23 ¥jIw. I. 4'J,
to hold the manors and demesne lands of JJurham, Cowdham, and West
Greenwich of the king by barony, the first by servici? of repairing llaahtmter
bridge and a house in Dover Castle. His son, ** Gc-offrey de .Say<r, di<.-d
in 33 £dw. I., hoLiing Burham in capite'* by the same service. (Uoitt.
iy. 411.)
350
The Tmmlree qfMSaM.
£0BiF.
FtfLL
880 b.
fomifih many similar instanoeSi from which we need not
select more than tike following. A tenant, named Colsted,
is shewn by inquisition takm on his d(^th in 18 Edw. L,
to hare held the manor of ihe same name in socage of the
king, seitteet^ by proTiding yeaziy one sparrow-hawk, or,
in ^lieu thereof, two shillings at the Exchequer. The
tenant of Qoddisland, otherwise called Woods- Court^ one
of the manors bold of Ghilham Castle, owed the same
smrioe, which being certain could not be higher than
socage*. . I
In the same way the manor of Bucklandj near Dover ^
was held of the Crown at the rent of a red rose in lien of
t Co. Hit. all services ty by virtue of a grant made in 48 Edw, IH.^
Hart.iz. which changed the tenure from kDight-service to socage
m cajnteK The same change 'was made in 10 Edw. IL
as to one moiety of the manor and lands of Queen-Court,
in Ospringe ; and as la^ as 3 Ken. Til* we find by the
Escheat Bolls that tiie rent due from the tenant was a rose
yearly, if demanded. The other moiety was held continu-
ously by knight-service from the Conquest downwards, to
the reign of Charles II. The free tenure of the last-named
moiety is a proof, if such were needed, of the same freedom
in the portion converted into socage in capite: "for one
part of a manor shall not be of another nature than the
tCo.utt. restt."
78 b. *
^ Buckland. This must not be confounded with the manor of the same
name near Faversham, aUeged by Hasted to have been portioned as if of
gavelkind nature, (yi. 399,) nor with Great Buckland, in Maidstone,
which was in reality gavelkind at first, though disgaveUed as early as
the reign of King John. (See case of De Beclaunde v. De Beclaunde^ Iti%
Kanc.y 65 Hen. III. 61, extracted by Eobinson, bk. i. c. 5.) Great
Buckland, in Luddesdon, is shewn by all the ancient rolls of knight's-
fees to have been held at common law. (Hast. iii. 372.)
* Wheeler's Case, 6 Co. 6.
XV.] Tenure in Socage. 35 1
The reservation of "a rose in lieu of all services" was.
very common in Kent.
The abbey of St. Mary Grace, in London, was endowed,
in 50 Edw. III., with the manors of Gravesend, Lynches
in Northfleet, Parrock, Bicknor, Leyboume, Watering-
bury, and Gore in XJpchurch, the ferry or passage at
Gravesend, and other hereditaments, to hold of the king
by fealty and the rent-service of a rose (" rendant par an
une Eouge Eose ♦.") ^^
This gift was confirmed to the abbey in francalmoigne, i79.
with no reservation of rent, in 12 and 13 Eic. II. f t Hasten.
The dean and canons of St. Stephen's Chapel, in West-
minster, were also the owners of a large estate in Kent
held of the king by socage in capite. In 7 Eic. II. they
held by the service of paying a red rose yearly the tnanors
of Ashford, Wall and Esture in Ashford, Barton and
Buckwell in Boughton Aluph, Easling, Mere, Langley
in Leeds, Eleham, Colebridge, and lands in Eynsford, as
well as in the foregoing manors. Their estate was con-
firmed by Eichard 11. in his 22nd year ^ J. t^V
The maxim, that one part of a manor cannot be of i78b.
a different tenure from the rest, may be illustrated by
what we know of Mapscombe, or Maplescombe, in the
parish of Kingsdown. One moiety was always held by
knight-service and castleguard of Dover Castle ||, in which 11^
tenure it continued at least as late as the reign of Ed- Eich.
^ These lands, &c., were part of the escheated estates of the Infanta of
Kent, Juliana de Leyboume. There are many other examples in old
Kentish collections of deeds of this tenure by service of a rose, e.g. Henry
de Malmains, of Waldershare, granted lands in Pluckley on these terms,
28th Feb. 9 Eic. 2 ; and Isabel Wasard granted a house and seven acres
of arable in Bredhurst for the like rent in 10 Edw. III. (Brit. Mus., Add.
MSS. 931, 949. See for other notices of the same kind, Eot. Pari. i.
100 b, 451 a.)
352
2%e Tenures ofKmt.
[g&up.
ward VI. * The other i r, Loureiore, was held at ooaci*
mon law, though it was in reign of Edward I. changed
to a socage tenure :—
'' WOliam de Valoignes held of the king a tcoiety of llie manor
of MapleBcaump^ by the service that if the king should come
thither to hear mass, he should kroyide the king with a penny
for an oblation ™/^ * . ^b
In the Escheat Bolls of
that Isabella Mohaunt, or
13 acres of arable land
by service of paying ^
pence witii her own
this another entry uu t
de Burghersh, who th
Edw* II* an entry records
ttonte AltOj "held in e&pik
H ckenden (in St Mary Cray)
ly at the Exchequer thirtet^ii
We may compare wiih
me year^ relating to Stephen
A in eapite ui de corona by
iV
rent-service the manor Stowtiugj with 100 acres of
arable in demesne, besides pasture, woods^ &c., and tb
rents of the freeholders."
In later reigns, especially after the dissolution of th
monasteries, when a certain confusion of the ancient
tenures is observable, it became usual for the king in
grants of land anciently held by knight-service to create
* See, inter alia, the Inq, post mortem of John Lovelace in 2 Edw. VI* •
" Tenet dimidium manerii de Qoodneston de Rege in capita per servitiuni
militare, et manerium de Maplescombe et 500 acras terne, &c., in Maples-
combe Famingham et Eynsford de Rege ut de Castro de Dover per Bcr-
vitinm militare. T. Lovelace est ejus filius et hseres."
" Blount, Ten. 211 ; Harris, Kent. 219; Hast. ii. 485; Thorpe, G^
Roff. ; Rot. Hundr. Kanciae.
" This Isabella Mohaunt held other lands in Hockenden of the Prior of
Christchurch, which were gavelkind, viz. a messuage and 42 acre« ^
arable by service of tilling certain fields and carrying the crop to the
Prior's grange at Orpinton, and making suit at his three weeks' coiirt
in Orpinton. A deed reciting her tenure is fully extracted in the Appen-
dix to Somner's Gavelkind, Nq. x.
XV.] Tenure in Socage. 353
a new socage tenure in this form : " To hold of the king
as of his manor of East Greenwich by fealty only *, in • ^itt
free and common socage and not in capite or by knight-
service, rendering yearly the rent following, &c." In some
cases, where knight-service land and gavelkind were dealt
with by the same instrument, the latter only were given
in socage, that confusion of tenures might be avoided.
Thus in a grant made by Henry VIII, to Henry Cheyney
of more than 5000 acres of land at once in Eastchurch,
Minster, and neighbouring parishes, we find the following
clause: **0f which lands and tenements 100 acres of
arable, 100 acres of pasture, and 100 acres of marsh land,
(naming them) are to be held in capite by military service,
and all the rest to be held of the king in socage ^"
The manor of Gore in XJpchurch (which was disgavelled
while in the tenure of Eoger de Leyboume) was held by
knight-service, before it came to the abbey of St. Mary
Grace, as one-fourth of a knight's-fee. The latter king
^ See, among others, the grants of the manors of Charing and Dartford,
and the castle lands in Canterbury, &c., as cited by Hasted. For the
effect of such grants on the tenure of the land see Gouge v. Woodin,
9ttpra^ and Lambarde, Peramb. 534: ''K lands originally holden by
military service come into the hands of the king, and are afterwards
granted out in socage, this will not reduce them to the nature of gavel-
kind."
The manor of Minster in Thanet affords us another example of a grant
in socage of what had formerly been held by knight-service. According
to Hasted, the manor, court-lodge, demesnes, and appurtenances, late
parcel of St. Augustine's Abbey, excepting the advowsons and rights of
Church patronage, were granted in 9 Jac. I. to Gary, Pitt, and Williams,
** to hold the manor with its rights, members, and appurtenances of the
king as of his manor of East Greenwich by fealty only, in free and com-
mon socage, and not in eapiU or by knight-service ; and to hold the rents
of assize paid by the freeholders (the 'penny-gavel' and 'corn-gavel'
Tents) of the king in capite by the service of one knight' s-fee." — {HmL
354 ^^ Tenures of £mt [chaf,
granted it to Sir C. Hales in socage in his thirty-fiftli ycarj
in whicli tenure it eontinnedj as we kam from a license
given to E, Stoneley in 22 Elizabeth, '* to alienate the
manor and landi of De la Gar^^^ whidi are held in
in capite ^p"
"We may take as an example of the castleguard manony
the tenure of which was changed to socage in ancient
timeSj the manor of Bwansecmbe, before mentioned in the
chapter on castleguard. The inquisitions taken on the
deaths of Edmund Earl of Kentj and of Eichard Talbot,
•HMtiii. in 4 Edw. III. and 31 Edw* IIL respectively*, shew that
this manor with its demesnes and appurtenances was held
ill capite as of Rochester Castle by payment of rent in lieu
of aU servicesj ie. in socage. Its tenant paid aid for it in
20 Edw- III* as having been originally held by knight-
service.
Again we find by the Patent BoIIb of 3 EIizaheth| tha'b
*'a moiety of the manor of Patrixbome with 40 acres cki
land was granted to Sir Henry Cheyney and his heirs, f>^
hold in capite as of Bochester Castle, i.e. in socage, ^ ^
which tenure also was the manor of Bilsington, th^ssu
belonging to the same owner. The other moiety of Patri^aK-
borne, with 20 acres of arable and 20 acres of pasture w=a8
held by him of the Crown by knight-service^.
P See the inquisition on the death of Thomas Wardgare who died ho^=Jd-
ing this estate in socage of the Crown, JRot JEsch. 33 Eliz., pt. 12.
*^ The records of the Cobham family, extracts from which are prin^fli^i^
in the CoUeetanea Typographical afford other illustrations of the sta^»-^
ments in the text.
Thus, <' Stephen de Cobham holds in capite 40 acres called Oroib^^^
in Boxley by service of sergeanty." {Inq. post mortem Steph. de Cobh-gam,
7 Edw. IIL)
The same estate appears to be described in the inq. post mortem of
Thomas de Cobham, of Rundal, in 17 Ric. 11., vix., "he held of the ^dng
1
XV.] Tenure in Socage. 355
Of the lands converted into socage by the military
tenants of the Crown, we need not give more than one
or two examples. The lord of the manor of Hoo in this
way changed the military service of the tenant of Oxen-
hoath, a subordinate manor, to a socage payment *. In • Hast. v.
the same way we find that the Abbot of St. Augustine's
changed the military tenure of his lands in Preston to a
socage tenure in fee-farm f. Having been held in barony t G«ie,
at the Conquest, according to Domesday Book, this ancient s^t.
change of tenure could not create any gavelkind qualities H^.'ix.
in the land'. It was held, with the hundred of Preston, ^^^
in socage of the abbot by Juliana de Leyboume, according
to the inquisition taken on her death, 3 Edw. IL, No. 56.
The small manor of Eoting, in Pluckley, contained
"half a yoke of demesne land" at the Conquest, which
the same abbot held at first in barony, and afterwards
alienated in free socage to the family of Eoting }. ^ii^^T^
in eapite by the service of finding for the king in each of his wars in
Wales one horse, one wallet, and one broche (either a fastening for the
wallet or a vessel for wine, according to different interpreters), a toft, and
12 acres of arable with 22 acres of pasture, and 13s. 4d. in annual rents
of assize at * WenhiU' in Boxley." (Blount, Ten. 61 ; Hast. iv. 345; Co.
litt. 108 b.) See also the inq, post mortem of Reginald Cobham, taken
in 35 Edw. III., according to which, "he held the manor of Aldington
of the king in eapite as of his castle of Bochester, by castlegnard rent
of 148. in lieu of all services; also the manor of "West Cliffe in eapite;
also the manor of Oxsted in eapite as of the honour of Boulogne (Co. litt.
77 a.), and the manors of East Shelve and Burdfield of the king in eapite
as of Dover Castle, by the service of 3s. 9d. castleguard rent," &c.
' "In Preston hundred the Abbot of St. Augustine's himself holds
Preston, which paid land-tax for five sulings, eight ploughlands of arable,
two in demesne. ... Of this manor Yitalis has one suling and half a yoke.
He has there one ploughland, and seventeen labourers holding half a
ploughland." It was held by Sir Thomas Moyle in socage in eapite^
by a grant of Hen. YIII. in his 36th year, and remained in his
ownership when all his gavelkind lands were disgavelled in 2 and 3
Edw. VI.
Aa2
• 35 6 The Tenures of Kent [chap.
An old deed preserved among the archives of the same
abbey shews that " a jury of grand assize found that the
ancestors of Eiohard de Eos had held a moiety of Plum-
•jh^ sted of the abbot at a fee-farm rent *,'*
sirifi. Had this been gavelkind, a jury of gavelkind tenants
Hmu would have tried the question j but Domesday Book proves
that it was held in barony.
The register of the abbey also contains a note that cer-
tain of their military lands were granted in socage to
a tenant whose service consisted in advising the abbot on
matters of legal business.
ik The monasteries in Kent, which held their lands in
francalmoigne, possessed the privilege, as we liave seen
before^ of alienating without special license from the king,
as was conceded early in the reign of Eiog John, *' after
t AMdg. examination of many old evidences f," But the privilege,
Crown, as we have already noticed, was rarely exercised. There
are, however, a few estates in Kent which were anciently
and originally held in francalmoigne, and given in socage
before the dissolution of monasteries '.
" Such were the estates in Westwell and Little Chart, mentioned above
in the case of De Bendings v. Prior of Chrtstchureh. Almost all the lands
held in socage of the mona^ries were gavelkind. See the account given
by Hasted of the reputed manor of Chartons, in Famingham, and the
' inquisition there cited, taken on the death of W. Isley in 4 Edw. lY.
(Hast. ii. 519.)
The manor of Down Barton, in St. Nicholas' parish, was held in socage
of the Prior of Christchurch from very ancient times. The Escheat Boll
for the year 4 Hen. YII. shews that " Thomas Pulter held of the Prior
of Christchurch in socage a house called Frechinghurst, and a mill in
Sandhurst, and the manor of Down of the same prior, hut the juror* did
not know what services were due for it" A verdict of this kind was equi-
valent (in Kent) to finding that the tenure was knight-service if the king
were the chief lord, and that it was gavelkind if a private person were
lord. (Co. litt. 77 b.) But the tenure was not taken in any case to be
XV.] Tenure in Socage. 357
Thus the small manor of Halton, in the parish of Al^-
ham, was very anciently alienated to a socage tenant,
having originally been held by the monks of Christchurch
in franealmoigne, ^^ of whom William de Halton held at
the ferme (fee-farm rent) of £9 in the reign of Stephen ;
after whose death* his widow Iden (Idonea) claimed it, as
holding it to her and her heirs as an hereditary fee, but
she afterwards renounced her right and title to it * *." Id^Tas.
knight-Bervice in eaptte until after a second enquiry (called the melius
inquirendum). {Wheeler's Case, 6 Co. 6.)
For other socage estates held of the Priors of Canterbury, see Hast. ix.
d69 (Greddings), iv. 377 (Gallants), ii. 119 (Hockenden), and notices in
his history, passim,
^ The Inq, post mortem of Henry Herdson (a subsequent owner of
Halton), taken in 2 and 3 Ph. and Mary, appears to prove that, this, as
well as his other estates, were held at common law. His eldest son is
there said to have been the next heir, although under the terms of his
will the younger sons obtained part of his lands in this county.
Diffi(^ulty of identifying disgavellcHi Itmde in the last ceDtury.— OpiaioM
of Robinson. — Inaccuracy of Hasted, — Tho Real Property Conunissioa.
— Answers to their questions, with cases. — Opimoaa of Ktntish law-
yera. — Tno distinct periods of disga Yelling. — Bisgavelling by pnen^*
gative.— By license. — PriYilcgo of the ATehbiahops of Canterbary*—
Entries in the Book of Aid. — Auch^fB Ome. — De BBclafnT^ £Vm#*—
Lands disgavelled which were held innncdiately of the king. — ^«i#-
■ wyk^B €a^0. — Nor(hwood^« lands.'—ColItam'a land*. — Second pmod*—
I Diflfia veiling by Act of ParHament, — Qmldford*^ lands. — Wyatfi
K la»rf#.^DiS8olnUon of monasteries. — ^Confiisioii of tenures.^ — lU cause.
■ — Castleffnard landR. — *'Thc Bill for gaveBdnd/' — Will of Jok
■ Hoper.-i^A great part of Kent disgavelJfd.^ History of the Act of
1548.— HiajifitnictioB of the Acta.^ — Wiseman^. €ott<m* — The collater&l
customs of gavel kind, — Da^ d, Jiaeon v* Brydge^, — -Later disgavelliiif
tacts. — Lands affected by both the great diBgaveUiag acts* — Lands oif
Sir J. Baker, Sir T. Cheyney, Sir J, Hales, Sir T, Xempe, Sir A, St
Le^r, and otbeTs, — Lands affected only by 31 Hen. YUI. c. 3, of
Lord Boron ph, Sir E. Boughton, Lord CromweD, Sir C. Hales^ and
others. — Lands nffected by the Act of 2 and 3 Edw, VI, alone, of §ir
G. Blage, Sir Martin Bowes, Th. Dturell.— Of Sir Walter Hendley. List
of his estates in Maidstone and elsewhere. — Lands of Sir E. Walsing-
ham. — Conclusion.
One of the most remarkable results of the statute
abolishing the feudal tenures has been the steadily in-
creasing neglect of the disgavelling statutes, chiefly on
account of the confused state of the public records, and
in particular of the Escheat EoUs and other series of in*
quisitions post mortem.
In the sixteenth and seventeenth centuries the lands
which had been disgavelled were tolerably well known,
but an ignorance of the subject began to prevail at the
end of the last-named period. Thus we find claims of
gavelkind tenure made upon lands which the Earl of
CHAP. XYi.] DisgavelUd Lands. 359
Sussex proved in 1706 to have been disgavelled by means
of an inquisitio post mortem^ Lennard v. Sussex. And
Robinson, writing in 1740, speaks of " the difficulty com-
plained of in the last age, and now grown greater^ of proving
what estates the persons comprehended in the disgavelling
statutes were seised of at the time * *." • Bk. l
c. yiL /111.
He therefore with some diffidence asserted that nearly
as much land was in his day treated as gavelkind, as be-
fore those statutes were made. Hasted, writing some years
afterwards, repeats these remarks, and notices the general
practice "of waiving the privileges of the disgavelling
acts." He himself was careful to mention in his history
the names of the persons whose estates were disgavelled,
and in some instances to shew that particular lands were
in their ownership when the Acts were passed. But the
authority of his remarks was much impaired by the un-
discriminating way in which he wrote of all tenures ; for
example, he inserts the words, " and whose lands were dis-
gavelled," &c., in his notices of lands held by ancient
knight-service, grand and petty sergeanty, and castleguard,
in the same way as when the land was originally gavel-
kind : on one occasion he inserts the formula in a descrip-
tion of land in Sussex ; and on several others, after in-
timating that the land was disgavelled, he writes as if it
remained nevertheless partible by the customs of gavel-
kind. Thus he mentions a grant of certain lands in
Chatham to Sir T. Moyle in 36 Hen. VIII., and the
alienation of the same to Sir T. Kempe, who retained
them till the 9th year of Elizabeth. Now all the cus-
tomary lands held by these owners were disgavelled by
the Act of 2 and 3 Edw. VI. By his own showing it
• WUmm V. CotUm^ 1 Sid. 138.
36o
The Tenures of Kent
[crap.
was then in the tenure of one or other of them ; yet he
continued to assert that these lands were held by co-heirs
in gavelkind ^"
Another example will illustrate the uselessness of Has-
ted^s account of the disgaveUing Acts.
" Christopher Hales/' he wrote, "was possessed of Barton Mill
in Canterbury with a meadow belonging to it, holding it in aipiiij
and by knigbt-service. {Rot, Esch,) Ilia lands were diegaTelled
by the Act of 31 Hen, VIII. He died in the 33rd year of that
• Halt, id* reign
*"
!N"ow if these sentences do not indicate his belief that
the lands in question were disgavelled, then the numerous
similar passages in his history are equally meaningless*
But if he did mean to say that they were disgavelled,
then the other passages are not of any authority, for the
records shew that the tenure was not changed.
In 32 Hen, Till., one year after the first general dis-
gaveUing Aetj the King granted to Sir C- Hales, among
many other estates, —
" Two pieces of land at Fullbrook in St. Mary's Northgate, near
Canterbury, and the Grange belonging to the late Prior of Christ-
church, and the Barton Mill and the Barton, &c., with CottoiE
garden, and Hopland meadow (seven acres) in Chartham^ (de-
scribing the boundaries minutely)," &c.
He died before the next disgaveUing Act was passed,
^ These lands were in the ownership of Sir Thomas Moyle in 2 and 3
Edw. VI., when all his gavelkind lands were disgavelled, as is shewn.
inter alia by the following extracts : —
*'l. Grant to Sir T. Moyle and his heirs of lands in Chatham called
Waslade to hold of the Crown by knight-service."— (Pat. 36 Hen. VIII.)
*' 2. License granted by the Crown to Sir T. Moyle to alienate these
among other manors and lands to Sir Thomas Kempe." — (Pat. 2 Elis. 9.)
But ** Waslade*' also appears in the lists of lands in the Exchequer
which were held originally by knight-service.
1
I
XVI.] Disgavelled Lands. 361
seised of the foregoing lands, which were divided among
his co-heiresses.
It is plain therefore that Hasted's method of mentioning
the disgavelling acts, without giving dates of the owner-
ship of particular lands by persons mentioned in them,
must greatly impair the usefulness of his statements. It
is indeed probable, as was noticed above, in writing of
the castleguard manor of Ashford, that he fell into a con-
fusion between the manor and demesnes held at common
law, and the gavelkind lands comprised in the bounds of
the manor. For these reasons, among others, his state-
ments respecting tenures have been but little regarded.
Since his time the uncertainty has become more pre-
valent, as will be seen by the evidence of the Kentish
gentlemen examined by the Eeal Property Commissioners.
The following questions were circulated with others
relating to gavelkind, borough - English, and ancient
demesne.
" Question 7. Is there any prevailing uncertainty as to what
estates are subject to gavelkind, and what are not ?"
" Question 8. Have you in practice found any inconvenience to
arise from this uncertainty * P^' • 1 Report^
Appendix.
To the first question some of these gentlemen answered
in the negative *', but the majority called the attention of
• Ana. 7. " I believe not to any extent of serious inconvenience. In
Kent I believe property is in practice treated as gavelkind, whether it is
supposed to have been disgavelled or not.*' — {T, G, Fonnereau, -23rj.,
1 Bep. App, 205.)
Ans, 7. " I conceive that cases may occur in which it may be difficult
to identity the lands disgavelled by 31 Hen. VIII. c. 3, or to distinguish
them from those which remained subject to the tenure. However, gene-
rally speaking, I believe it is well known in the vicinity in which gavel-
kind lands are situate, what estates are subject to the tenure, and what
not." — {Gilbert Janes, Esq,, 1 Rep, App. 213.)
tiie Commissioners to yery serious results arising from the
uncertaiety wldch prevails.
And it is certain that this inconvenience must increase
as the contents of the public records become niore widely
known^ especially as no lapse of time is sufficient to alter
the tenure of the land. So much was this felt to be the
case, that Mr, W- Clowes, in his answers to the Commis-
sionerSj declared that he would not accept a title to real
property in Kent without proof either of its having been
disgayelled, or a gavelkind title made out (up to the date
« 1 it«p, of the first of these acts *).
and'iis, Purther, IVIr. BeU, an eminent authority on the law
relating to Kent, thought it very probable that these
uncertainties would arise ; —
" Tou find it/* he wrote, " generally laid down that all lands in
Kent are gavelkind, and that therefore no great inconvemencfl
arises ; it muat be very clearly proved they are not gavelkind,
and it is said Buch proofs cannot be given. I bought an estate
the other day, where it waa perfectly clear it was not gaveUdnti
I have purchased three estates in Kent, where I am perfectly
satisfied that none of them are of gavelkind tenure ; and now that
the records are so thrown open by the Parliamentary Conmis-
sioners, I have no doubt many, more such will be found. I a8oe^
tained by inspecting the records that they (the estates above-
f Jhid. mentioned) had been disgavelled f."
228.
Mr. Sidebottom, another eminent counsel, produced ad-
ditional evidence of the uncertainty and inconvenience
mentioned in the questions above cited, and famished
Ans, 7. " I have never found any inconvenience ; primdfaeis all l^
in Kent are considered gavelkind ; and it rests with the party dispoaiiig ^^
the estate to shew that they have been disgavelled." — {F. TWriwr, Xt't
1 i^. App. 286, and see evidence of G. Mi^ley, Esq,, ibtdemf p. 850.)
XTi.] Disgavelled Lands. 363
the particulars of a case recently laid before himself and
another counsel.
" The legal estate had been got in, or supposed to have been
got in, under the direction of the Court -of Chancery, and the
Master's report had been made in the year 1810. I thought
the purchaser was entitled to evidence to prove this, unless he
chose to be satisfied with the Master's report ; a solicitor had in-
vestigated the thing a good deal, and had taken great pains, and
he had discovered that the property in the abstract, laid before
the other counsel, had in fact been disgavelled, and that counsel
mentioned it to me ; and of course, when the abstract came back
to me again, I insisted, as the other coimsel had done, that the
legal estate should be got in by a conveyance from the heir at
common law* It was afterwards discovered, that though the land
in the other abstract of title was disgavelled, yet the land in my
abstract was not disgavelled, and that therefore the legal estate in
my case was properly got in under the direction of the court, but
it was not so with respect to the other purchase. There was the
same vendor in both cases, and the title was deduced in both cases
in the same way ; the question of gavelkind or no gavelkind never
occurring until the period in which the legal estate was to be got
in. "When we arrived at that period, then it became necessary to
ascertain the fact; and, therefore, with an estate comprised in
the same deeds, sold by the same person, and purchased by two
different purchasers, with respect to one there was a good legal
title, and with respect to the other there was a bad legal title, and
th|it merely arising from the difficulty of distinguishing what was
gavelkind, and what was not gavelkind."
It is no doubt diflScult in certain cases to prove that lands
were in the ownership of one who had his customary estates
disgavelled, at the date of the passing of the Act. But it is
much less difficult in general than is supposed. There was
a case a short time back, in which the tenure of an estate
depended upon proof of the date of a conveyance one day
later or one day earlier than the disgavelling of the lands
of the purchaser, but Buch instances must of course be very
rare> The most remarkable thing is, that the purchasers
of disgavelled lands should not have invariably demanded,
and kept among their title-deedSj extracts from the Patent
HoUs and inquisitions post mortem to prove the teoum
Ko uncertainty would now be felt, or at any rate but little^
if these extracts had been handed down from the date of
the abolition of the feudal system, before the records be*
came difficult of access. But at the present day it is quite
possible to gain the same evidences of tenure although it
is necessarily hard in some cases to identify the land **
^ Mr, Walters stated in liia answer to the Cominksioner** Ciictilar ttut
so uneertaLBty os to tonure prevailed in Keut^ and that no means existei
of ascertaining the disgavelled lands. Subsequently, howeTer, a n<rte wii
received &om him, in which the following passage occurs: —
** Having stated that I had never known an instance in praclioe, ia
wKidi any doubt existed aa to particular landa in Kent being gavi'lkiiid
or not, I think it right to mention, that siueo I attended the Commit
Bi oners I have learnt that very recently the following 0^90 f^of^^irrdL
A regidar title was shewn to lands, and it appeared that (though not
stated to have been disgavelled,) they were formerly the estate of aa
imdividnal whose name occurred in one of the disgavelling Acts; the
purchaser's solicitor made inquiries for the purpose of ascertaining if
possible, whether the particular lands were part of those which irere
disgavelled, and by means of a county history, and an 4n^[miMo pod
mortem which was discovered, he found that these were part of the dis-
gavelled estates, and that on the death of the man, the tenure of whose
estates was so discharged, they descended to his common-law heirs. T^
land had since been treated as gavelkind, and (a legal estate being out*
standing) the gavelkind heirs (being infants) were declared by the Court
of Chancery (proceeding on the report of Master Harvey) to be inftflt
trustees within the statute of Anne, and they conveyed accordingly, 9tA
conveying only his share. The discovery recently made indnced oooneel
to treat the land as disgavelled, and to require a conveyance from the
common-law heir, his former conveyance being limited to a share.
This occasioned a second application to the Court of Chancery, that heir
having died, leaving an infant son, who has conveyed under the order of
the Court."
XVI.] DisgavelUd Lands. 365
There were two distinct periods in which it became
usual to disgavel customary lands. The first comprises
the reigns of King John, Henry III., and Edward I.;
the second, excepting the comparatively unimportant acts
passed in favour of Sir E. Guildford and Sir H. Wyatt,
extends from the dissolution of monasteries to the 21st
year of James I. The first is of far less importance
than the second, and it will be convenient to consider it
separately.
In the period of disgavelling by prerogative it seems to
have been thought at first, that the king might by his own
grant or by deputing his power to others change any
gavelkind into military tenure.
We find, therefore, that the superior lords of the fee were
permitted to disgavel lands within their manors subject to
the king's ratification of the proceeding. Thus, " Henry
Pratt had the confirmation of the king for the change of
four ^yokelands' and five acres of gavelkind land into
frank-fee, to be thenceforth held by the service of half
a knight's-fee, as the charter of Baldwin de Betun, Earl
of Albemarle, testified *." • • Pin.
But a more extensive privilege was given to the Arch- LambT
bishops of Canterbury by King John, as may be seen by ^"* ^^
the wording of the charter given to Archbishop Hubert
in his third year, printed by Lambarde ^^from an ancient
He fhrther cited the case of Wiseman y. CotUm from Siderfin, to shew
that an uncertainty prevailed in the reign of Charles U., and intimated
a belief that the Courts would presume ''a regavelling Act," where the
lands have ^^from time immemorial been treated as gavelkind." But such
a case could hardly occur. The question of tenure generally arises after
the land has been controlled by a loog series of wills and fsLmily settle-
ments, preventing its being ''treated as gavelkind." Some few estates
appear to have been so treated in the early part of the last century, which
it is said were disgavelled or held anciently by knight-service.
a Jah<
Per. 531;
58,60.
roU remaining in the hands of the deceased reTerend
father, Matthew Parkcrj Archbishop of Canterbury *J'
This charter contained clauses to the eflfect following : —
*' That the arcbbisbops may convert into knight's-fee any bads
of the fee of their church held previously in gavelkind * . . . The
tenanta of Buch lands aball owe the same duties and enjoj the
Bame pri^olcgeB as other knights of the archbishop, bo never-
theleaa that the accustomed quit-rentg eball continue to be paiii,
and the customary bibours, works, and provisions * duo fitim tbd
land ahull be commuted for money renU. And the king for
himself, his heirSj and successors^ ratified prospectively all sueb
eonverBions of tenure by the archbishops/' ^m
The entries in the Book of Aid^ 20 Edw. Ill,, of landi
disgavelled "per novam licentiam archiepiscopi," among
other ancient evidences, prove that the privilege was exer-
cised. The inquisitiona post mortem of tenants of the areh-
bishops, a list of which is in the Eed Book of the Eiche*
quer, will shew what lands were thus held at the sams
time by knight-service and an ancient qmt-rent. ^ ^
In the passage of the Eed Book just cited (foL 132), one
knight's-fee in "Cassingham" is shewn to have been held
of the archbishop by a military tenant. This included
120 acres of land at Keynsham in Eolvenden, which had
been disgavelled by the archbishop, and which was held
by knight-service and a rent of 10s. 2d. per annum. Tto
appears by the proceedings in Aucher*s Case K
• **Xeiiia et averagia at alia opera quaB fiebant de terris iiedem coii-
vertentur in redditum denarionim sequivalenteni." Xenia are purrey-
ances of provisions due to the lord, as rent-hens, rent-eggs, &c. ; avertj^
were labours due in the lord's land by custom {puvrages).
' Plac, etAs8%8., 3 Edward II., Kane. " W. de Cassingham quondam
tenuit 120 acras terras in Rolvenden in gavilikende . . . et S. Edmund^
quondam Archiepiscopus Cantuar. concessit quod eas haberet et teneret
sibi et heredibus suis &c. libere et quiete per servitia vicesimas ptf^s
xvi.] DisgaveUed Lands. 367
Somner informs us, that the old account rolls of the arch-
bishops' manors, preserved at Canterbury, contain various
notices of these ancient enfranchisements, one of which he
quotes to this effect : —
"Concerning the increased rent paid by Thomas de Bemefield,
that his lands at Charing may be henceforth free from customs as
knight's-fee. Item for the increased rent paid by Thomas de
Bending^ that his lands in Charing may be enfranchised as
knighf s-fee/' &c * • Somn.
60*
In De U Beclaund^s Case it appears that Archbishop
Hubert granted to Alan de la Beclaund one yoke and ten
acres of gavelkind land in Maidstone to hold thenceforth
by knight-service and a yearly rent. This estate is thus
identified by Hasted : —
" Great Buckland manor was granted (by the description fore-
going) to hold in frank-fee (and not in^gavelkind as before) to Alan
de Bockland. His grandson Walter de Boclaunde held this estate
in 1270. A nuper obiit was brought in the above year by Alan
against his elder brother Walter for a moiety of the estate, the
tenure having been changed by the archbishop without the con-
sent of the Chapter at Canterbury. But this plea was over-ruled,
and judgment passed for the defend^it ^ t*'' t Hast. !▼.
803*
The same author, referring to an entry in the Book of
Aid to the effect that Simon de Doddington paid aid for
lands called Le Downe (Downe Court) in the manor of
Teynham and parish of Doddington, as one-fourth of
a knight's-fee, quotes an ancient deed by which Arch-
feodi unius militis et redditus IDs. 2d. per annum/' — {Robtman, Oav, ii.
C.8.)
Hasted traces the descent of this estate by means vt rarious wills and
mquiBitions post mortem down to recent tim<% (vol. vii, 101.)
' Itin. Kane. 55 Hen. III., rot. 01 dors., cxtroctod by llobinson,
bk. i. c. V.
Ibishop BonifaCGj in 29 Hen. IIL^ disgaTOlIed one "yoke'*
of land held of hiui by Henry de Bourne in this manor
• Bm^ and parish *,
vL8U|
n%.8L The estate known as Maxton or Mayston Courtj in the
parish of Sturryj was also enrolled in the Book of Aid as
one knight's-feej which had been disgavelled, " per noram
licentiam archiepiscopi."
It does not appear that the priTilege was retained very
long by the archbishops, aa we find no instance of ita use
after the reign of Henry III.j and mention was made in
t Wm. Kirhy Leeh and De Begghrookh Cmes f of estates held by
2$ ]|fiL military service of the archbishops, which yet were partiWe
in gavelkind ; from this it appears probable that the aidi-
bishops* privilege was given up as contrary to the policy of
.the law in Kent^ at some time before the same right ms
Bdenied to be part even of the king's prerogative,
I Returning to the subject of disgavelling by prerogative,
hwe find that two distinct claims were set up on behalf o/
the Crown, viz. : —
1. That the king might by prerogative disgavel any
lands in Kent whatsoever ^
2. That at any rate he might change the tenure of bis
own immediate tenants.
The first claim may be illustrated both by the grant to
Henry Pratt by the Earl of Albemarle lately mentioned,
and by a more important instance from the records of the
^ 1. "Dominus Bex per cartam suam potest facere liberom feodnxtt
de tenementis de tenure de gavelkind, tarn de illis quse tenentur de B^
mediate, quam de illis quse tenentur de ipso immediate."
2. ** Nullus potest de gavelkind facere libenun feodum, nisi tanfoi^
Dominus Eex et Arehiepiscopus Cantuar. : et hoc solummodo de teno*
mentis qusB de ipsis Eege et Arcbiepiscopo tenentur in capite immediate*
— {De Oatewyk's Case, infra.)
XVI.] Disgavelled Lands. 369
Cobham family, who owned much gavelkind land in dif-
ferent parts of the county K
In the Charter EoUs of 4 Edw. I., No. 17, a deed is
printed by which the king changed into military tenure
all the customary lands then held by John de Cobham.
The deed may be found set out at length both in Eobin-
son's " Gavelkind," and in the " Abridgment of the Early
Pleas of the Crown," among the proceedings in De Gate-
wyVa Case^ 9 Edw. II. The most important clauses are
in effect as follows : —
"Whereas it pertains to our prerogative to abolish such laws
and customs as diminish, instead of increasingi the strength of the
kingdom^ or at least to change them by our special favour in the
case of our deserving and faithful followers ; and whereas it has
often happened by the ancient Kentish custom of partition in
gavelkind, that lands and tenements ^which in certain hands,
when undivided, are quite sufficient for the service of the State
and the maintenance of many), are afterwards divided and broken
up among co-heirs into so many parts and particles, that no one
portion suffices even for its owner's maintenance ; we therefore . . .
for ourselves and our heirs grant to John de Cobham that all the
gavelkind lands and tenements which he now holds in fee-simple,
shall descend to his eldest son or other heir at common law in the
same way as his estates held by sergeanty or knight-service,
whole and without partition to him and his heirs after him,
saving to all the chief lords of such lands their customary rents
and services ^."
This deed affected the tenure of Beluncle in Hoo St.
See a grant of gavelkind lands in several parishes to Henry Cobham
in the lOth year of King John; Rot, Cart., 178 b, and Collect, Topograph,^
vol. vi. ; Inq, post mortem John Cobham, 28 Edw. I. 42 ; and Hot. Fin,,
28 Edw. I. 9.
k Jiot. Cart., 4 Edw. I., No. 17:— ** Quod terra de Gavelkind sit de
natar& Serjanti©." After some prefatory clauses it proceeds thus: —
"Quare volumus et firmiter pnecipimus pro nobis et hercdibus nostris,
Bb
370 ffie Tmures o/Kmt [chap.
Warburghj and several marshlands in the parish of AU-
hallows^ besides the principal seat of the family in the
parish of Cobhanij as appears by yarioug ancient deeds pre-
served in the Collectanea Topograpkica*\ among which
may be particularly noticed a family settlement of lands
in several parishes on the said John de Cobhara and his
heirs, made in 19 Ric. L, and the inquisition j^ost mortem
already cited.
Tho last case of disgavelling by prerogative lands not
held immediately of the Crown, is that which caused the
lawsuit of Gatewyk v, Gatewf/kj in 9 Edw, II, M
This is an interesting and important case, the whole
proceedings in which are printed in the original Latin
by Robinson, as well as in the ''Abridgment of Pleas of _
the Crown, '^ published by the Record Commissioners. It |
will not therefore be ifecessary to mention more than the
leading points.
The property in dispute is now called Seotgrove, in Ash
by Wrothani. It had been held in gavelkind by one
William de Fawkham as parcel of the manor of North
Ash. The lady of the manor, Mabel de Torpel, granted,
and the king confirmed her grant, that the said William,
his heirs and assigns, should hold the land by knight-
service as the fourth part of a knight's-fee, paying a yearly
rent of 27s. His son and heir having alienated the pre-
mises to one Richard de Gatewyk, lately dead, his younger
sons claimed their shares as co-heirs in gavelkind.
quod omnes terrae et tenementa, quae praedictus J. C. in gavilikendam in
feodo tenet et habet in com. pncd. ad primogenitum suum vel alium here-
dem suum propinquiorem post ipsum, sicut et iUa quae per seijantiam
tenet vel per servitium militare, integr^ absque partitione inter eos faci-
enda descendant, et eidem et ejus heredibus sub e&dem lege, salvis in
omnibus capitalibus dominis suis servitiis et consuetudinibus aliisque
rebus omnibus." — Given, May 4th, 4 Edw. I.
I
XVI.] Disgavelled Lands. 3 7 1
One of them was proved to have released and quit-
claimed his rights, if any, when he was over the age of
fifteen, and therefore fell out of the suit. The remaining
brother rested his claim on two grounds, first, that the
lands in dispute had not been mentioned in the king's
deed of confirmation ; and secondly, that no one could
lawfully disgavel lands in Kent but the King and the
Archbishop of Canterbury, and that only in the case of
lands held of them immediately.
As to the first point, it was found by the jury that nine
acres of arable, four of wood, thirty shillings of rents of
assize, and the third part of the mansion, were mentioned
in the king's charter ; that fifteen acres of land had been
acquired by Eichard Gatewyk after the date of the dis-
gavelling charter, and were therefore gavelkind.
And as to the lands and tenements mentioned in the
charter, a day was appointed by the judges for giving
their decision on the point of law.
Meanwhile the king wrote to the judges, informing them
of his prerogative to disgavel any lands whatsoever, and
a copy of the charter, given in 4 Edw. I. to John de Cob-
ham, was produced jfrom the rolls of Chancery. Notwith-
standing this, the judges hesitated to decide in the af-
firmative, and the cause was adjourned several times
during the next two years, after which time nothing
further is seen respecting it. " It is plain," says Eobin-
son, " from the time taken to consider the matter, that the
information given to the court by the king's writ did not
satisfy their doubt V
* **Nuper ohitt, by Rich, and Will., sons of Richard Gatewyk, for their
reasonable parts of the inheritance of their father in Ash, against the
daughters of their elder brother.'' — {/tin, Kanc.y 6 Edw. II. 80, and
9 Edw. II., C. B. 240 ; Rohim. Gav, i. c. 5, ii. c. 3.)
Bb2
Tfie Tenures of Kent [cHiT.
It was admitted in this case by the court ttat tlie king
might change the tenure of lands held immediately of him,
i.e, of lands which were either ancient demesne or parcels
of the honours of Peverel, Boulogne, and others held by
the Crown after forfeiture, escheat, or purchase.
It was by this right that the lands of Sir Roger Ley-
bourne and Sir Roger Norwood, lying within the precincts
of the king's ancient demesne, were disga veiled in the
reign of Henry III,
The first charter runs thus :— ^' Let Roger de Ley bourne
hold in fee of the king all his lands and tenements now
held in gavelkind in Eaynham, Hartlip, and Upchurch,
in the county of Kent, by the service of one fourth part
of a knight's-fee ^,"
These lands were all within the jurisdiction of the Court
of Ancient Demesne held for the hundred of Milton- They
included the manor of Gore, or De la Gare, and the manor
of Mere, or Meres Courtj in Eainham, which having for-
merly been hold in gavelkind was held by Juliana de Lpt-
bourne as a sergeanty, by the service of being " lardner''
at the king's coronation, as is shewn by the inquisition
taken on her death '^. The same record shews that they
included marshlands now known as Slayhills, or Diggs
Marsh, in Upchurch, besides 400 acres of wood and 200
acres of pasture in the parish of Eaynham. Hasted men-
tions a confirmation of this grant made to Juliana de Ley-
bourne, the " Infanta of Kent," in 14 Edw. 11. ^
"» Rot Cart, 51 Hen. III. 84. .
" **Et tenet 300 a. marisci in TJpchurch de Eege in capite una cum
manerio de Mere per servitium essendi lardaria principalis ad corona-
tionem domini Regis/' &c. — {Inq. post mortem Juliana^ widow of WiUi^
de Leylourne, 3 Edw. II. 56.) *
° Hast. vi. 27. She was the daughter of Thomas de Leyboume, son
of William and Juliana above mentioned. Her father having died befor«
"^
XVI.] Disffa veiled Lands. 373
The other charter above mentioned contained a grant
*^ that all the gavelkind lands and tenements held by Sir
Eoger de Norwood (or Northwood), in the king's hundred
of Milton, should thenceforth be held by knight-service ♦." 14^^^*'
It was given in the 41st year of Henry III., and changed Anc.
the tenure, inter alia, of the estates known as Norwood l. 10.
Chasteners, in the parish of Milton by Sittingbourne, and
Norwood in the parish of Eastchurch ^ t* tHwt. vi.
177 251
" His son. Sir John de Norwood, also changed the tenure
of his lands from gavelkind to knight- service J." He died t H)- ▼•
in 13 Edw. II. seised of the manors of Harrietsham, Bred-
Tiurst, the Moat in Maidstone, and others, besides the lands
in the hundred of Milton, which he had inherited from
his father.
In 21 Edw. I. " the whole county was asked by what
means gavelkind lands could be changed to frank-fee;"
it was found by the jury appointed to answer the question
that the change might take place in four ways, viz. : —
1. By the king's grant.
2. By the archbishop's grant.
3. By escheat to the lord of the manor, holding his
demesnes by knight-service.
4. By surrender to such lord, " with no expectation of
having the land again ^."
But it has long been held that the customs of gavelkind
are at most suspended by the escheat and surrender men-
tioned in the third and fourth cases '.
her grandfather, she succeeded as the sole heiress of the latter in 1309.
She died in 1367 without heirs, when all her estates escheated to the
Crown. — {Kentish Archaol. v. 193.)
** Inq. post mortem Roger de Norwood, 13 Edw. I. 25.
«» Berwick Roll, 21 Edw. I. ; Itin. Kane, 53, and Hil. 26 Edw. I.
21, B.R. ; Brook. Abridg. Extinguishment, 14.
' Wiseman v. Cottony 1 Sid. 138, and Year-book 14 Hen. IV. 2, 9.
"And the more niodt^'ii resolutionB do not acknowledge any
prerogative sabsi sting in the Crown to change the law and manner
of gavelkind descents by altering the tenure, even m to such tanils
^ RolliKL as are holden immediately of the king * *:"
i. c^ 5.
In short, it appears that soon after the House of Com-
mons becamo paii of the legislature, it became settled that
nothing short of an Act of Parliament could change a
t Hate, c. tenure inherent in the land itself t.
The first case of disgavelling by Act of Parliament
was in 11 Henry VIL, when^ upon a petition made by Sir
Kichard Guiidfordj his customary lands were disga veiled*
The Act providedj —
"That all lordships, lands, tenements, advoweonsj possessions,
and hereditaments, which Sir Richard Guildford held to bis own
use, or which others held to his use, being estates of inheritance
of the nature and tenure of gavelkind, should be from thenceforth
for evermore discharged, and in no wise be of the nature of gavel-
kind, ne depaj'ted ne dopartuble among heirs male, but should
be of the TU[ture of other lands and tenements held at the common
law descendible, and should descend to the heirs at common law
for ever, in such manner and form as if they were not, ne had
J Pot. not been of the nature ne the tenure of gavelkind i"
ParL vi.
His estates appear to have lain chiefly in Eolvenden and
its neighbourhood. He inherited from his father, a pre-
vious attaint having been reversed, and died seised of the
manors and demesne-lands of Hemsted, Halden^, Kenchill,
487.
• De Begghrook'8 Case, 26 Hen. YIII. 4.
* Halden manor is said by Hasted to have been held by knight-service
in 20 Hen. III. "We do not find any early records of the amount (if any)
of demesne land held at common law. ** There are twelve dens, which
hold of this manor ; and on the court-day there are elected twelve officers
called beadles, to collect the rents of assize or quit-rents due from them to
it." — {Hast. vii. 186.) The grant of the demesnes to Sir H. Sidney,
which he mentions, gives a full description of the estate, which should be
XVI.] Disgavelled Lands, 375
and Brocket in Ebeney ♦, none of which names occur in •.Hast,
the Book of Aid. 194, 2ii,
Frensham, once called Fraxingham, which was also
among the lands of Sir E. Guildford, was always a jfree
manor, held at common law by tenure of castleguard,
paying a rent to the manor of Swanscombe for the defence
of Eochester Castle ; it was held in socage, the rent-service
being certain, when the Book of Aid was compiled. It is
mentioned among the ^'knight's-fees of Kent" in the
Testa de Nevil^ but we do not know what demesnes, if
any, were attached to the manor before the ownership by
Sir K. Guildford.
In 15 Hen. VIII., on the petition of Sir Henry Wyatt
of AUington, another act, similar in its terms to that
already cited, was passed to disgavel all the customary
lands and tenements then in his ownership.
The particulars of these estates are not mentioned in
the Act, but can be ascertained by the usual method, of
inspecting the inquisitions taken on his father's death,
his own death in 1532, and that of his son, Sir T. Wyatt, »5 3t
in 1542, besides the licenses of alienation, if any, ob-
tained by him or for others in his favour t. t Hagt. iii.
But no very sweeping Act of this kind was required 293, 460.
until the confiscation of the monastery lands had been
begun. In the winter of 1535 the surrenders of some of
compared with the older descriptions in the inq. post mortem of Sir Richard
Guildford, &c. : it runs as follows, viz. " The manor of Halden with its
appurtenance and 4 messuages, 2 tofts, 1 dovecote, a garden, 1,000 acres
of arable, 200 acres of meadow, 500 acres of pasture, 100 acres of wood,
200 acres of heath {brueria, Co. litt. 5 a.), 100 acres of marshland, and
rents of assize worth yearly £4 6s. 4d., lying in the parishes of Rolvenden,
Biddenden, and Tenterden, held of the Queen in chief by knight- service
by Sir Henry Sidney and Mary his wife, by gift of the Duke of Northum-
berland.''— (P(?^. liolh, 1 Mary.)
the smaller houses in Kent were procured, viz. the abhey
of LangdoDj the priories of Folkstoue and Bilsingtonj and
the Mamn-Bieu at Dover. Most of the lands belonging
to them were retained at first by the Crowiij but the site
and real estate of Folkstone Priory, including three houses
and 560 acres of land of various tenures in Folkstone,
Alkham, and Cheriton, were granted by letters patent to
Edward Fiennes, Lord Clinton and Saye.
This estate was aliened by license to Thomas, Lord Crom*
well, just before the disga veiling Act of 31 Hen* TIILj
which affected all his customary lands and estates " : they
H^t. were re-eranted to their former possessor in 4 Edw. VL *
rill Iftl
m ' In the following spring an Act was passed for the dis-
solution of the lesser religious houseSj by which it was
provided that the real and personal estate of all monas-
teries, the yearly income of which was under £200, should
be immediately vested in those persons to whom the king
should assign such estate by his letters patent. An ex-
amination of these patents will shew not only the names
of the grantees and the particulars of the grants, but also
the confusion which was beginning to be felt about the
law of tenures in Kent, to remedy which the later dis-
ga veiling acts were passed.
The King granted these estates to be held for the most
part by knight-service in capite^ and in some cases by
a socage tenure, or by knight-service not in capite^ in
large portions at once, without distinguishing the original
tenures of the particular lands in question, before they
had falleu into mortmain. Thus a new tenure of knight-
service was imposed on an estate containing both cus-
"* License of alienation ; Edward Fiennes, Lord Clinton, to Lord Crom-
weU; Rot. Pat. 30, Hen. VIII. 7.
^
XVI.] Disgavelled Lands. 2>n
ternary lands and others held from the beginning at com-
mon law.
But the confusion became still more apparent, when the
dissolution of the greater religious houses was accom-
plished in 1539. An Act was passed for vesting in the
Crown and its grantees all the real and personal estate
whatsoever of the monasteries, which had been or should
be surrendered to the King; and this was followed by
a general surrender of all the monastery lands, which was
completed within a few months. The manors and lands
thus acquired were granted with great profusion to the
King's favourites, with the same disregard of the limits
of ancient tenures as has been noticed in the case of the
smaller monasteries. It was common for a large estate,
containing lands held by ancient knight- service, francal-
moigne, or other superior tenures, as well as much land
of the nature of gavelkind, to be settled in a new military
tenure, which could not of course, avail against the cus-
tomary qualities inherent in some of the lands. So it was
said by Chief Justice Montague, that much land, which
was at first gavelkind, had come to be held in knight-
service, and yet the customary descent remained, " for it
runs with the land *." The state of the law respecting •Davi8.i2.
devise of military lands, still further augmented the diffi-
culties occasioned by this confusion of tenures.
It has been remarked by writers of good authority, that
the landowners who shared the possessions of the sur-
rendered monasteries, were not in general members of the
old nobility, but " the creation of a new age, disregarding
in every way the laws of military tenure ""." This neglect
was the natural consequence of the destruction of the
" Froudc, Hist. Engl. vii. 7. See also the Act 1 Edw. VI. c. 4.
378 The Tenures of Kent [chap.
feudal nobility in the Wars of the Eosos, and we find
numerous traees of its increase in Kentj where it was more
important to preserve the ancient landmarks than ia any
other part of England. The Escheat Holla of the reign
of Henry VII. contain the descriptions of numerous estates^
the tenure of which was exactly known in the county in
earlier reigns, but which are there returned by the juries
in the inquisitions post mortem as ^* held of the king, but
by what services the Jurors are ignorant*"
This may also he illustrated by the language of the Act
concerning Dover Castle 32 Hen. YIILj c. 48. This Act
recites the facts, that the castle belonged to the Crown,
and towai^ds its repair various manors and lands were liable
to payments called castloguard rents ; that these manors
and lands were parcels of the baronies of the Constabularyj
Crevceoeurj Fobcrtj Pcvercl, Haghnet, and others; that
the said castleguard rents bad become much decayed and
diminished for sevei-al reasons^ viz. some of the lands had
come into the King's hands as estates of inheritance^ and
many others were likely to come to him by reason of
escheats, purchases and exchanges, primer seisins, ward-
ships, and in other ways, while of others the services
had been changed, so that there was every likelihood of
great doubts arising as to the tenure of these lands. It
was therefore enacted that the castleguard rents should
be paid yearly at the Exchequer from all these lands,
excepting those from time to time actually in the Bong's
hands, and fresh regulations were made as to the cus-
tomary fines and other matters relating to the Castle.
Under all these circumstances it became necessary to
provide for disgavelling the lands which were being newly
granted into military tenures: after some discussion in
Parliament the "bill concerning the tenure of certain
^
3LVI.] Disgavelled Lands. 379
lands in Kent called gavelkind/' was passed on May 23rd,
1639 (31 Hen. VIII. c. 3). Althongh this Act has been
always printed among the statutes of the realm, yet being
in its nature private, and not affecting the whole county^ it
is not receivable in evidence without the production of an
office copy of the parliamentary roll. The wording of the
Act is as general as that of the two disgavelling Acts
which preceded it, viz. : —
'* That all manors^ lands, tenements, &c., in Kent, of which the
persons mentioned were seised, which were then of the nature and
tenure of gavelkind, and before that time had been departed or
departible among heirs male by the custom of gavelkind, should
thenceforth be clearly changed from the said custom, tenure, and
nature of gavelkind, and in no wise be departed or departible
between the heirs male, but should remain, descend, &c., as lands,
tenements, &c., according to the common law, and as other manors
lands and tenements in Kent, which never tcere held by service of
socage, but then tcere and always had been holden by knight-service,
do descend.^^
And in more general terms still, the lands were directed
''To be accepted, taken, deemed, inherited, and judged as if
they had never been of the ijature of gavelkind, any usage or cus-
tom in the said county to the contrary notwithstanding."
The greatest accuracy is required in ascertaining the
dates at which particular lands were first owned by the
persons named in the disgavelling Acts. It is therefore
necessary in the very numerous cases where the land of
doubtful tenure formed part of the estate of a suppressed
monastery, to ascertain, as a first step, whether the sur-
render of that religious house was completed before or
after the date of this disgavelling Act "".
* The monastery lands changed o\niers very frequently in the years
immediately following the general dissolution, wliich makes it difficult
38o
The Tenures of Kent
[OEAP.
• Real.
Prop.
Comni.
3 Itep. 2
The Aet of 31 Henry Ym. oontained no sehedule of the
lands affected by it,, and it, is therefore necessary tv ex-
amine in each cfuse, where land is supposed to have been
disgayelled by it, the inquisitions j»c»^^ moriem of the owners
before and after the date of the Act, the Patent Eolls for
the date^ of any grants to them of knds taken &om the
' monasteries, and the licenses of alienation (or pardons for
aliening without license) of lands disposed of during their
lives, and other records to which the county histories and
the collections of MSS. relating to the tenures of Kent will
serve as guides in each case. These last-named collections
are very complete down to the end of the 13 th year of
Elizabeth's reign. It is of course difficult in many cases
to identify small parcels of land supposed to have been iii
the ownership of one of the persons named iu the Act;
for this reason it was said, before the records were as easy
of general access as at present, that in the great majority
of cases the evidence of identity is utterly gone, and that
*Hhe lands have returned into the custom of gavelkindj*^
although still the property of the heir at common law,
when on an intestacy the necessary evidence of identity
can be produced *.
Before making mention particularly of the disgavelled
sometimes to ascertain their owners at a given date. " The king obtruded
many of the estates of the monasteries on the nobles and others, in ex-
change for their own lands, in order to bind them more firmly against
the re-establishment of such houses, and of the Papal power." — {Moit
iii. 204.)
The surrenders are preserved among the records of the Court of Aug-
mentations, and copies in some cases arc to be found in the British Mu-
seum, e.g. the early surrenders in 27 Hen. VIII. of the MaUon Dieu at
Dover, the abbey of Langdon, and the priory of Folkstone. Cotton.
MSS., Cleop. E. 4. Dugdale's Monasticon^ by Ellis, will supply the dates
of the rest. The actual surrender of the prior and monks of Christchurch
has been lost.
I
XVI.] Disgavelled Lands. 38 1
estates, we may notice briefly the will of John Roper,
Attorney-General to Henry YIII., in which many of the
lands of William Roper, mentioned in the Act of 31
Hen. VIII., are enumerated. This will was dated Jan.
27, 1523, and is fully set out in the Act passed to esta-
blish it in 21 Hen. VIII. The preamble of this Act re-
cites "the great trouble, strife, and variance which hath
been, and yet is, and continually hereafter is like to be
in Kent, by reason of the pretended last will and testament
of John Roper, of Canterbury, deceased." The provisions
of the will are then set forth, by which the testator had
attempted to anticipate the effect of a disgavelling Act,
by framing the uses on which his feoffees were to hold the
lands, &c., named in his will, so that his gavelkind estates
should never be parted among heirs male, but should de-
scend in the same way as his lands held by ancient knight-
service to the person " who ought to be the heir male at
common law, going from the eldest issue male to one other
the eldest heir -and issue male of his (son's) body lawfully
begotten for ever, undivided, and not parted nor partible
among heirs male." The limitations of the will are ex-
ceedingly complicated, but were simplified as much as pos-
sible by the Act passed for the purpose. After the life
estate limited to the widow, certain estates in remainder
were allotted to the use of the younger sons respectively,
remainder to the eldest, William Roper, in tail male *, and • 31 Hen.
the residue of the estates after his mother's death to the ^^^^' ^' ^'
same William Roper in tail male, with other limitations
not needing mention ^
^ The estates of which by these means William Roper became seised,
either in possession or remainder, are described in the will as including
the manors and lands of Easthome, a mansion and 200 acres at Wellhall,
Mottingham, &c., in Eltham, certain other lands in Lee, Chesilhurst,
Charlton, Kidbrook in the parish last named, Woolwich, and Bexley;
By tlie operation of the Act of 31 Hen. VIII,, to use
f* Co. litt. the words of Coke *, —
1140 b.
**A great pari of Kent was made dmcendihle to the efdesi *<Nf,
according to the course of the common law, for that hy the meani
of that custom divers ancient and great families after a time camd
to very littie or nothing,"
This was the reason assigned in earlier times for tlie
exercise of the king^s prerogatire of disgavclling, aa we
have seen in the case of Gaietm/k r, Gatewyk^ and the
charter given to John de Cobhanij supra; but it does
not appear to be true that the decay of the old families
was the immediate cause of the passing of the Act of
Henry VIII.
This is evident from the names of the persons favoured
by it. The true cause was the indiscriminate granting
of common-law and customary lands into new military
tennresj which may indeed have created a fear lest the
new fainilies should decay and fall to pieces by means of
partitions among heirs male ; we may donbtj howeverj
whether such a fear would have been justified by events,
especially after the freedom of devise was extended within
certain limits to lands of every tenure.
The large estates in Kent have been kept together in
our own time with little or no help from the disgavelling
Acts, and it was the opinion of a distinguished historian,
that ^^ it will often be found in private patrimonies, that
the tendency to consolidation of property works more
the estate called Cliestfield in Swalecliffe, another at St. Dunstan's near
Canterbury, the Lodge farm in Linsted, and lands in Doddington, Kings-
down, Norton, Cosmus Bleane, Heme, Reculver, Littlecote's lands in St
Stephen's, besides some more minutely described, as well as others left
in more general terms to the use of his eldest son, for which the inqui-
sitioD, taken on his death in 1524, should be consulted.
I
I
XVI.] Disgavelled Lands. 383
rapidly than the tendency to its disintegration by a law
of gavelkind '."
But we must now consider the disgavelling Act of 2 and
3 Edw. VI. which comes next in order, and on the nature
and construction of which some most important cases have
been decided.
As there has been within the last few years an opinion
expressed that very little evidence exists as to its history,
we may consider what is known of it, somewhat more
minutely than was required for the earlier enactments
of the same kind.
In the Journals of the House of Lords for the 2nd year
of Edward YI., under the date Feb. 27, 1548, we find an
entry to this eflfect: "to-day were brought up jfrom the
House of Commons seven bills, viz. an act for gavell-kynde
(and six others).''
On the 2nd of March was the first reading of " the bill
for gavell-kynde ;" the second reading was on March 4th ;
and on the 6th the bill was read for the third time and
passed, " with the common assent of all the lords, except
the Archbishop of Canterbury, the Lord Chancellor, the
Earls of Kutland and Shrewsbury, the Bishops of Ely,
Carlisle, Hereford, Chichester, and LlandaflF, and the
Lords Pointz, Sturton, and SheflBleld *."
» Hallam, Middle Ages, ii. 85. A passage from the evidence of Mr.
Sidebottom before the Real Property Commissioiiers illustrates the same
point. He considered that "it was a singular thing that in Kent the
large baronial estates have been kept together as well as in other coun-
ties, but that has been by settlements and wills. Being aware of the
custom, and knowing how necessary it was to guard against it, they have
guarded against it, but this is not the case with small properties." — (Real
Prop., 1 Rep., App. 270.)
* Under the date of the 7th of March we find another entry, viz.
"to-day were brought up from the Commons . . . bills, viz. 1. a bill for
abstinence from flesh in Lent with a proviso, and 2. for Oavell-kind.*'
In the " Calendar of Acts passed in the second session
begun Nov. 24j 2 Edw. VL, and continued until the 14tli
of March J 3 Edw, VI.," we find the fortieth Act in the
list entitled^ "An Act for the altemtion of certain gavelt
kjnde lands.'^ ■
It appears from the Journals of the House of CommonSj
that it was read for the third time and passed^ in that
session, on the 26th of February,
The form of the Act was as follows : —
"The King our sovereign lord for di?era oonBiderations him
moving . . . ordaiDelh, that as well ull the lordships, manorSf
landsj tcneraents^ woodsj pastures, rents-services, revemonsi re-
maindcrsj adyowsonsj and hereditamentsj set, lying, and being in
the county of Kent, of which Sir Thomas Cheyney and (43 others),
or any of thenij is seised to his or tbeir use in fee-simple or fee-
tail, the which or any of which be of the nature and tanuro <rf
gavellciud, and heretofore departed or departible between the bain
male made by the custom of gavelkind, shall from horiceforth ho
clearly changed from the said custom tenure and natur^^ of ^nvcl
kind, and from henceforth be to all intents, constructions, and
purposes whatsoever, as lands at the common law, as if they had
never been of the nature of gavelkind, and shall descend as lands
at common law, any custom in the said county to the contrary
notwithstanding." (Saving all existing interests in the lands for
all persons except Sir Thomas Chejmey and the others mentioned
in it.)
Notwithstanding the broad expressions of these acts,
directing that the lands shall he deemed and taken in all
respects to he as if they never had been of the nature of
gavelkind, they have not been held to alter any custom
I
^ This appears by the mark J in the margin of the Joumali u
was proved in the case of Doe d. Bacon v. Bryd^es (infra) 6 Hann.
and Gr. 282.
XVI.] Disgavelled Lands. 385
inherent in those lands, excepting that of partible descent
among heirs male.
Thus a hybrid tenure was created, by which the land
descends to the heir at common law, while the widow is
endowed of a moiety; the felon's lands are free from
escheat, and alienation by feoffment is permitted to the
infant at fifteen, while all the old services and quit-rents
remain due to the lord of the manor.
These points were established after much argument in
the case of Wiseman v. Cotton \
A question had arisen respecting the estates of Upper
and Lower Court, and other lands in Famingham, which
had been in the ownership of Sir Henry Isley, when his
customary lands were disgavelled by the act of 2 and 3
Edw. VI.
The lands still held by knight-service had* come in the
reign of Charles 11. to Sir Anthony Eoper of Famingham,
who devised them to the trustees of his will on certain
trusts ; but an action was brought to set aside his will, on
the ground that the land in question had lost the privilege
of being freely devised, which had been allowed to all
gavelkind lands in the case of Launder v. Brookes^ supra':
as if the general words of the disgavelling act had brought
the land within the rule of the common law, which re-
stricted the devise of lands held by knight-service \ The
case was twice argued, and finally a special verdict was
brought in "by a jury taken from the county of Kent*,"
' 1 Sid. 135 ; Kaym. 59, 76; Hard. 325. See also CoUon ▼. Wiseman,
1 Sid. 77.
^ This case was decided ia Hilary Term, 13 and 14 Car. II. (B. R. rot.
476), after the abolition of feudal tenures ; but the will of Sir Anthony
Roper was dated before the abolition.
* Where the issue touches the commonalty of the county of Kent,
C C
386
The Tenures of I\
[chap.
to the effect following: that the
anciently of the nature of gavelkir
2 and 3 Edw. VI. they were in the
Isley, at which time a private
passed (reciting its provisions), wl
disiravelled all the then lands an(
Isley, to all intents, constructioi
ever, so that they should descent
law, any custom in the county
standing.
But it was resolved by the v
argument," that the custom of
withstanding the general langu
on the ground chiefly, that the
with a very special reference t«
subsequent words may and oft
of a preceding clause '•
Importance was attached 1
in Co. UtL 140 b., above
partible descents as the s
disgavelling acts, (as it ci^^
vcral of the more ancient
prerogative).
It was remarked that
which tlie ^^ Custom of W
permitted the custom of C
objection was made to tli-
llu' jiHT was iihvays taken dc '■
trials ])er tutum comitatum K>.
thrro cited.
' " SuhsiMpuiit words miU"
oodinj:: i;i'iural cxprossion."-
Co. lilt. 'Jl>'.»a; Stradlimf v. /
-vr =4: at nvu-
. r "Ask these
: ]f the per-
* >:LbiIity that
■:"ietion of the
'hese grounds
:n«Iuitl, vhose
- ceediags^ fhst
iri:3e^ from the
.: acta^ whioh
r CP without
VT. wasBodi
'I T. Brgdgti^
nt^ iriiere fhe
Tiinma liad been
"Mtnite 31 Hen.
:. »Te die de-
-J a MS. note
:a, afterwards
i.-soiiien snr le
: :aa de oeux
Ifi IkAiardde
leii^of *the
maie sTerle
. r : ear le de-
inpicztperles
(,iu VIIL, et
It u nn-
'.oaee wmj in
n. •' Soil, qne
:tsrtain faml-
XVI.] DisgavelUd Lands. 387
"Welsh gavelkind" and "Irish gavelkind" were in all
respects utterly diflferent from the true gavelkind of
Kent. Case of Tanistry ♦. L^"^*
But though this objection has been shewn in an earlier
chapter to be perfectly legitimate, the expression used
by the judges has ever since caused an erroneous fashion
to be adopted of calling every custom by the name
of gavelkind, whether on freehold or copyhold, in Eng-
land or elsewhere, where the partition among heirs male
prevails ^.
And Twisden, J., "very learned in the customs of
Kent," certified the practice in the county of devising
disgavelled lands freely, though held by knight-service.
The judges further divided the customs of gavelkind
into the general custom of partition in descent, without
which the tenure could not exist, and the special or col-
lateral customs, which are rather privileges annexed to
the tenure than parcel of it : a division, which has since
been adopted generally into the law of gavelkind. They
therefore refused to admit, that a statute, which men-
tioned the custom of gavelkind only, could be applied to
"the whole bundle of customs f," (saying in the quaint t LeT.505.
manner of the time: — "Gavelkind est la mere et ceux
customes avant-dictes sa daughters, vel gavelkind est la
« See the cases and arguments on this point more fully set forth at the
beginning of this book. We may again remark here, that in the Statute
changing the customary descent of lands in the Soke of Oswaldebeck in
Nottinghamshire, 32 Hen. VIII. c. 29, the word gavelkind is not used.
It enacted simply, that '^ the meases, lands, and tenements in Oswalde-
beck Soke, which be pretended by a custom there to be partible among
and between heirs male, shall from henceforth be clearly changed firom the
said custom, and never hereafter be departed or departible among such
heirs male." See also the statute concerning customary lands in the city
and county of Exeter, 9 Elizabeth.
fountain ou headBprmg, et les auters customer sont rivu-
lets ou streams issuing de ceo\")
A further argument was drawn from the fact that these
disgavelliDg acta were passed on the petition of the per-
sons aflfected by tbem, and from the improbability that
any Kentisbman would petition for the destruction of the
ancient privileges of bis county ^ On all these grounds
a judgment was given in favour of the defendant, whose
title rested on the disputed liberty of devise.
It was remarked in the course of the proceedings, that
difficulties had ariseUj and were likely to ariscj from the
absence of schedules from the disgavelliog acts, which
merely mention "the lands, &c,, of A, B. or C/' without
description of parcels.
The authority of the Act of 2 and 3 Edw. VI* was much
discussed in the modern case of Doe d. Bacon y, Bn/dges^
6 Maun, and Gr. 282, This was an ejectment, where the
^ On this point Eobinson remarked: — **The same opmion had been
before declared obiter by Glynne, Ch. J., concerning the Statute 31 Hen.
VIII. c. 3, that it extends to no other custom of the land, save the de-
scent, in the case of Browne v. Brooks^ 1659, according to a MS. note
which I have seen of that case in the hand of Pemberton, afterwards
Chief Justice.*'— (^)&. i. c. 5.)
» " Car nul poit estre si absurd de pense que le Kentishmen sur le
feasance de eel Act deveignent petitioners pur le destruction de ceux
liberties et priviledges, que lour ancestors ont preserve ove le hazard de
leur vies ; et pur ceo poet estre bien conclude, que le priviledge of * the
Father to the Bow, and the Son to the Plow,* et que la femme aver le
moiety pur sa dower, &c., remain', nientobstant eel statute ; car le dc-
prendre del maner del discent est solement rcgarde, et ceo appiert per les
primers statutes de disgavelling, comme Wiat's statute 15 Hen. Till., et
auter statutes 20 Hen. VIII. et 7 Edw. VI."— (1 Sid. 137.) It is un-
certain to what the statement in the last line refers.
Kirhy Lee's Case, Palm. 163, affords an example of the loose way in
which references were made to the Acts under consideration, ** Scil. qne
fueront particular Acts de Parliament que toll gavelkind en certain fami-
lies en Kent."
XVI.] Disgavelled Lands. 389
plaintiflf 's title depended on his proving that certain lands
in Midley had been disgavelled by that Act while in the
ownership of William Twisden or Twisenden. It was
shewn that the premises were part of an estate contain-
ing 300 acres of fresh and 200 acres of salt marsh-land
in Midley, Brookland, and Ivechurch, which was owned
by him at the date of the statute ; but extreme difficulty
was experienced in proving the existence or the contents
of the statute. The special verdict, in Wiseman v. Cotton^
was not admissible, being res inter alios acta^ and not in-
deed professing to contain a true copy of the title or con-
tents of the Act, the original of which could not be found,
"although a search was made among the parliamentary
rolls in the InroUment Office, the rolls of original acts
in the Parliament Office, and the records of the House of
Lords and the Eolls Chapel. The calendar of Acts above
quoted, and another called the Short Calendar, were not
admissible, having been compiled after 1639. Private
copies of the Act were produced from the muniments of
the lord of the m^nor of Preston, and another which had
belonged to the Twisden family. The cause was tried
a second time at the spring assizes at Maidstone, when
an attested copy of the Act was at length produced from
the office of the solicitors to the Commissioners of Woods
and Forests; a verdict was given for the plaintiff, "but
a bill of exceptions was tendered on the ground of the
inadmissibility of some of the evidence."
It may be mentioned with reference to these proceed-
ings, that the authenticity of the Act of 2 and 3 Edw. VI.
had been admitted in the last century, in the case of Len-
nard v. Sussex^ in which the Earl of Sussex "gave very
^ Supr^, and Zord Raym. 1292, where it is very sb'ghtly reported.
full evidence" that some of the lands in question had
been disga veiled by the Act of 2 and 3 Edw, VI., whUe
in the ownership of William Eoper, Sir Henry Isley, and
Reginald Peckham; while others, which were ancient
knight-service lands held of the Crowrij yet would have
been made descendible to the eldest son by the same
statute, had they been gavelkind. The mode of proof
adopted was the production of copies of grants fi'om the
Crown before the Act, of the Act itself^ and of inqui-
sitions post mortmi taken after its date.
The remaining disgavelUug acts are comparatively un-
importantj partly because so much of Kent was disga-
^^.litt veiled* that little inconvenience was expected to result
from the few instances remaining of customary land held
by knight-service, and partly no doubt that the increasing
liberty of devise enabled private persons to bar the custom
by that means, until the abolition of the feudal tenurei
removed the last restraints on this libertyj by oonverting
military tenure into free and common socage.
By entries in the journals of the House of Lords, we
learn that on March 3, 1558, (1 Elizabeth,) an Act was
passed " for exchanging the nature of the gavelkind land
of Thomas Brown, (of West Beechworth in Surrey,) and
of George Browne."
Eight years later a Bill was passed, on December 7,
1566, (9 Elizabeth,) "to alter the nature of gavelkind in
the lands of Thomas Browne, Esq."
The last Act passed for a similar purpose is dated May
27, 1624, (21 Jao. I.^) It was entitled, "An Act for
* This Act is generally quoted with an apparent inaccuracy, as if the
two persons first-named were alive at the date of its passing. See Eobin-
son's Gavelkind, ad finem. This might easily lead to mistakes in en-
deavours to identify the lands affected by it. Its short title is, " Sir John
h
XVI.] Disgavelled Lands. 391
the altering of the tenure and custom of the lands late
of Thomas Potter, Esq., and the lands of Sir George
Elvers, Bjit., and of Sir John Kivers, Bart., lying all in
the county of Kent, and of the nature of gavelkind, and
to make them all descendible according to the course of
the common law, and to settle the inheritance of them on
the said Sir John Kivers, and the heirs of the said Sir
John Eivers, and Dame Dorothy Kivers, his wife."
Their estates included at that time, among others, Gay-
sum and Well-street in Westerham, the manors of Ashurst,
with that of Buckland appendant to it, and Chafford's-
Place in Penshurst; some of which, however, were never
of the nature of gavelkind.
It may be here remarked, as an instance of the inac-
curacy of some of the Kentish historians on the subject
of tenures, that Harris, after mentioning the preceding
Acts, remarks, "no doubt very many estates in Kent
have been since brought into the same circumstances ♦," • Hist, of
i.e. disgavelled since 21 Jac. I. p.4^.
We may now very briefly give the lists of persons
whose estates were disgavelled by the various Acts men-
tioned in this chapter, with a few references to the records,
which contain authoritative descriptions of their lands.
First, we may take those persons whose names occur
both in the Act of Henry VIII., and in that of Edw. VI.
Secondly, those whose lands were affected only by the
Act 31 Hen. VIII. c. 3.
Thirdly, those mentioned in the Act of 2 and 3 Ed-
ward VI. "^
Eivers' Bill/' as in the journals of the House of Commons for 1624 :
"27th May. Sir J. Rivers' bill came down from the Lords with
alterations."
'■* In addition to the copies of this Act above described, we may notice
392
The Tenures of Kent [cbaf,
I, Persons whose names appear both in the Act 31 Hen*
YIII. c, 3, and in that of 2 and 3 Edw. YI.
1. John Baker-
He was knighted before the Act of 2 and 3 Edw. VI,,
and died in 1558. By the inquisition on bis death we
learn that his eldest son succeeded to his disgavelled
landSj and those which had never been gavelkind, e.g. the
manors and lands of Teston, Hunton, West Farleigh, and
others which had belonged to Sir T. Wyatt, attainted for
*Co*Etitr. treason *-
78.
Hasted describes some of his disgavelled lands, e,g-
K those in Kingsnoth and Pluekley, formerly belonging to
^\ Hdit. yIL Battle Abbey t .
—1^'' In 32 Hen, VII L he purchased Comden in Frittendeo,
I of which he died seised, and in the same year had a grant
H of much land in Cranbrook and the neighbourhood, called
I Delingden, Brompton, Highfielde, Farmlands and Niit-
^^H beame meadow^ and another estate in Headcorn and Staple-
^^^ hurstj with Buckburst and TVallinghurst in Frittonden,
described in the letters patent more particularly. The
records called Originalia for the 32nd, 33rd, 34th, and
36th years of Henry VIIL, and the 2nd year of Edward
VI., shews grants to Baker of Abbotsmarsh, the reversion
that Hasted possessed a copy, which was offered among his other collec-
tions to the Trustees of the British Museum after his death. It is much
to be regretted that more of his private MSS. (coUected in 62 vols.) were
not bought upon that occasion. Among those which were refused, were
several valuable documents, including a copy of the Book of Aid with
Petit*s notes, a collection of private and personal acts relating to the
county of Kent, a copy of the proceedings in the " gavelkind case" of
Lennard v. Sussex, with matters relating to aU the manors and lands
there claimed by the (supposed) heirs in gavelkind, and other materials
for an accurate account of the tenures of Kent. The index to tlie MSS.
which were purchased of his executors is marked in the British Museum
Catalogue, "Add. MSS. 5,536-7."
XVI.] Disgavelled Lands. 393
of Morehouse, and the lands of Combwell Priory, with
many other manors and lands in Kent, more fully de-
scribed in the inquisition taken on his death in 1558.
Before the date of the second disgavelling act he had
acquired the i^hole fee of his family estate at Sissinghurst,
and the lands of the Trinity Chapel near Cranbrooke (now
destroyed).
2. Sir Thomas Cheyney.
He died in 1559, owner of very large estates in Kent,
the greater portion of which were either held by ancient
knight-service, or had been disgavelled before 1548. Be-
sides the account given by Hasted, his will and the inqui-
sition taken on his death should be examined, as well as .
the record of the proceedings in Cheyney v. Edolfe^ Chan-
cery proceedings temp. Elizabeth, cc. 11. (The case was re-
moved to the Chancery Court formerly held in St. James's
Church at Dover).
The list of his estates, though set out in the inquisition,
is too long for insertion here, but the following references
will indicate the position of a great portion of his dis-
gavelled estates.
By a license of alienation in the Patent KoUs 29 Hen.
VIII., pt. 1, we find that John Alban aliened to him in
fee 144 acres of arable and 214 acres of marsh in the Isle
of Harty (there more particularly described).
On March 16, 31 Hen. VIII., the King granted him
the site of Faversham Abbey, with its lands in Faversham,
and Nagdon Marsh in Graveney ^. In the next year he
received a grant of Chilham Castle and manor, with its
lands in twelve boroughs, and its twelve dens in the
Weald {U dennis in Le Wild\ with Poynings Marsh in
Tenham, and other lands most minutely described by
■ Lewis, Hist. Faversh. 22 ; Rot. Pat. eju9 anni, pt. vi.
394 ^^^^ Tenures of Kent [chif»
boundaries, haTing belonged to ThomaSj Lord Cromwell
• Ow>.pt. fEssex)j wben all his lands were disgayelled *• In his
vm. 121. 35tli year the Eing granted to him the site and lands
of Davingtou Priory^ with two-thirds of the manor of
+ oruj. pt. Monktonj and lands in many parishes +, Among his other
viii, 68. disgavelled lands were the site and possessions of St. Lex-
t or^^. 29 burgVs Nunnery in Sheppeyl^ lands belonging to the
s*&. manor of Patrixbomej and others belonging to small sup-
pressed chantries \
It appears from the inquisition on the death of John
BoyeSj in 35 Hen. VIII,, that Sir T. Cheyney had aliened
to him *'Silstod Hall, with 200 acres of landj Horsemeacl
borough in Denton, with lands in Wootton, Okeridge/'
&c., to hold of him by knight -servicej as parcel of the
barony of Chilham-
3* Sir Eoger Cholmley,
In 36 Hen. YIIL the King granted to him the manor of
North Cray, with lands in that parish (which were aliened
to Sir Martin Bowes), besides other manors and lands ^.
4. John Guildford (of Benenden).
He was knighted before the Act of 2 and 3 Edw. VI.
Most of the customary lands belonging to his family had
been disgavelled in 11 Hen. VII. Henry VIII. granted
to him the manor and lands of Huntingfield, &c., in his
§ Oriff, 35th year §.
pr3?92' 5. James Hales.
He was also knighted before 1548. He died in 1 and 2
Phil, and Mary, and was succeeded in his disgavelled and
knight-service lands by his son, Humphry Hales. Among
« Orig. pt. ii. 31 Hen. VIH. 235, and pt. iii. 38 Hen. VIH. 68; Bot
Pat. 32 Hen. VIII., pt. v.
P On'ff. pt. iii. 36 Hen. VIII. 114. For his estates in Woolwich see
the reference in Hasted, vol. L p. 450.
^
XVI.] Disgavelkd Lands. 395
the former were the estates of St. Sepulchre's Nunnery in
Canterbury, comprising the site and 422 acres of land in
several parishes^. In the previous year he acquired the
manor and lands of Otterpoole in Limne, with other
estates in Hougham, Midley, &c., which all were in his
ownership at the date of the second disga veiling act.
6. Thomas Harlakenden.
7. (Sir) Thomas Kempe of Ollantigh.
Some account of his family is given by Hasted *. For • ^oL ▼«•
940y ooX.
his disgavelled lands the inquisition taken on his death, in
1607, should be consulted. It may be noticed that in
6 Edw. YI. he aliened to John Tuck, Esq., 40 acres of
arable and wood in Hothfleld and Benenden, belonging to
the manor of Boughton Aluph. There is an entry re-
specting his ancient knight-service lands in Cyriac Petit's
notes on the Feodary of Kent, under the head of Boughton
Aluph, to this eflfect : —
" The one knight's-fee once held in 20 Edw. III. by T. de Gates-
den, J. Paynell, and G. Laverton . . . was held formerly by Thomas
Kempe (Bishop of London), then by Sir William Kempe, and
afterwards by Sir Thomas Kempe (senior), who died in 13
Hen. VIII.''
Eeference is there made to the inquisitions post mortem
of the Bishop of London, 4 Hen. VIL, and Sir W. Kempe,
which may be thus summarised : —
" T. Kempe, Bishop of London, died in 4 Hen. VIL, seised of
the manors of Boughton Aluph, Stowting, and Ashmerfield (part
of the military estate of St. Augustine's Abbey), with the manor
of Hadlow held by knight-serrice, the advowson of Staplehorst,
and 23 a. of land in Godmersham held of the Prior of Christ-
" Dugd. MoryuU iv. 414; Hast. xi. 183; Grig. 38 Hen. VIH. pt.
i. p. 70.
096 The Tenures ofKmt ]m^.
church ty scrnces unknown to the jury, Thomaa Keiope was
his heirp"
"William Eempe held Hamhurst, 60 a. la Staplehurst^ the
mlrowaon of that parish^ the manor of Wilmington with its lands
in Benenden and elsewhere, and eleven other parcels of hmd m
Staplehurst held of the manor of Harden, by military service,"
Sir T, Kempe of Ollantigli purchased in 14 EUz. the
manor of Otterpoole, and other (disgavelled) estates of Sir
J. HaleSj by royal license.
• Hast^vii 8, Sir Thomas Moyle, of East well *,
pJx! 9. William Eoper,
Many of his estates have been describodj supra^ m the
will of John Eoper of Cantorburyj and the private Act
passed to establish it in 1530.
t Huet 10. Sir Anthony St Legerf.
^"** ^ A compariaon of the inquisition taken on his death in
155 9 J with the grants (of lands taken from suppressed
monasteries) made to him before 1548, shews that Sir A-
St. Lcger owned a considerable amount of disgavelled laud
among his other estates in Kent. Henry VIII., in his
36 th year, granted to him by letters patent the estates of
St. Augustine's Abbey in Kennington '', as well as a con-
siderable property in Headcorn, belonging to ^Kent^s
Chantry' in that parish. Among the lands comprised in
this grant were the manor and rectory of Sellinge, with
houses, &c., formerly belonging to the rectory of Faver-
sham, with houses and lands belonging to the said chantry,
"Stonefield, Westfield, Eibertsfield, and Kirksales," and
others in Headcorn and Tunstall, Westhall in Staplehurst,
the manor of Stalisfield, &c. In the same year he pur-
chased, by the King's license, the manor of Brookland, and
' Hast. vii. 549; Ori^. ejus anni, pt. iii. 80.
XVI.] Disgavelled Lands. 397
certain lands called " Bekards," formerly belonging to the
Archbishop of Canterbury, and afterwards to Kichard Cecil.
Other grants were made to him in the 30th and S2nd
years of Henry VIII., as appears by the index to the
Originalia for that reign.
11. Thomas Wilford.
He is said by Hasted to be the same person as Thomas
Wilsford of Hartridge, in Cranbrook. Thomas Wilford,
according to an inquisition post mortem taken in 7 Eliz.,
held at that time of the Crown a house and 76 acres of
arable, meadow, and wood in Cranbrook, besides an estate
called Lovehurst, and another of 20 acres in Harden.
12. Sir Edward Wootton.
At his death in 6 Edw. VI. he was found by inquisition
to have held among other estates one third of the manors
of Old Langport, and of St. Mary Lyng, Okemere in St.
Mary Cray (part of the honour of Peverel), with a large
estate in Boughton Malherbe, there described more par-
ticularly. He also held the manor and advowson of Padles-
worth, and an estate called * Poyntons,' another in Egerton
called Field Farm and Wardens, and the manors of Col-
bridge ♦, and " Byndwardsmarsh in Iwade," granted to • Ha»t t.
him in the 2nd year of Edw. VI. t ^ ori^.
Nearly sixty names remain in the list of persons affected "^^j/*^
by the disgavelling Acts. It would obviously be impossible
in the limited space of a short treatise to give^even refer-
ences to the records where the lands disgavelled in each
instance are described in some cases with such minuteness
and accuracy. It is sufficient to repeat that the desired
knowledge is only to be obtained by consulting in each
case the inquisitions post mortem^ the grants by letters
patent and licenses of alienation contained in the Originalia^
Patent EoUs, and others easily accessible. The object of
I
the few notes and remarka on the names in the lists pie-
ceding and following is to indicate in some slight degree
the amount of information, valuable to the owners of land
in Kentj which is there contained.
We may now proceed to mention the names rcmaioiug
in the lists of 31 Hen, YIII. and 2 and 3 Edw. VL, with
a few references to the most ohvious sources of informa-
tion respecting the lands affected.
II. Persons whose lands were disgaYcllcd by the Aet
31 Hen. VIII. c. 3, alone.
1. Thomas, Lord Borough.
He was of Aston-LodgD, or OrkesdeUj in Eynsford and
Lullingstone ; he succeeded to the family estates in 20
Hen. yill., and in the year following was summoned to
Parliament as Lord Borough, or Burgh, as the name U
• Ho*t iL variously spelt* under "the manor of Brookland." Bo. I
432, utid I
viiL 385. sides the estates above mentionedj and those in Lenham,
»Thumhamj and Otterden, we find that he held lands in
the hundred of Somorden which were held hy ancient
knight-service. An entry in the Feodary of Kent notes
the fact that " in Somerden hundred are no lands held by
knight-service (from the time of the compilation of the
Book of Aid, &c.), except those in the tenure of Lord
Borough." This appears to refer to the manor of Bowzell
in Chidingstone. It should be noticed that Penshurst and
some other ancient knight-service manors are there de-
scribed under the hundred of Westerham.
2. Sir Edward Boughton.
By grant from the King, dated Jan. 30, 1531, and en-
rolled among the records of the Augmentation Office, he
acquired his estates in Plumsted, and others described in
t oriff. his inquisition post mortem taken in 4 Edw. VI. f
viii.^^. In 33 Hen. VIII. he aliened to Sir Martin Bowes an
XVI.] Disgavelled Lands. 399
estate in Pltlmsted^ He was owner of much land in
Woolwich, including the manor of Southall, described in
the Book of Aid and the Feodary of Kent, and 342 acres
of land appertaining to it in later times (though at the
Conquest it contained but 63 acres according to Domesday
Book) *. This estate was in his ownership in 31 Hen. • Hast. i.
VIIL He purchased from Sir Martin Bowes, in 33
Hen. VIII., a mansion, wharf, and parcels of land in
Woolwich containing about 50 acres of arable, marsh,
and wood t. t Pat.
Rot 3S
3. Sir John Champneys, of Bexley J. HeiLviii.
4. George, Lord Cobham* ||- f^j-p
5. Thomas, Lord Cromwell. 252.
Cromwell, Earl of Essex, the " Chief Secretary and 11. 17I'
Vicar-General" of Henry VIIL, received several grants
of monastery lands before this disgavelling Act. His at-
tainder and execution for treason in the July following
render it easy to find out the description of these estates,
very exact records being kept of the lands which were
thus forfeited to the Crown. Among them were the manors
and lands belonging to the suppressed priory of Mottenden
in Headcom §, and many other lands, most of which were § Orig, so
distributed among the other great landowners whose names 47. '
appear in the disgavelling Acts.
6. Edmund Fetiplace, of Lid.
He died in 33 Hen. VIIL seised of the manor of New
Langport, with 56 acres of land pertaining to it, with
' Described Hast. ii. 210, and there said to have been granted to him
in the same year.
* For his estate^ see, inter alia, Hasted, iii. 413, and references there
made; the grant of Bury Court and other lands to him, Orig., 33 Hen.
VIII., pt. iii. 54; the Act 31 Hen. VIII. c. 13, and the inquisition on
his death in 4 and 5 Ph. and Mary.
400 TAf Tenures of Kent [cHi^,
a chapel and 200 acres of arable, 400 acres of pasture^
200 acres of meadow ^'called Sexmanshiil in East Waston,
Newland, PromeMll, Old Konmeyj and Lid, with certain
lands in Brookland which belong to the manor of Aldiog-
toBj" all which were inherited by his soUj John Fetiplaeej
according to the inquisition taken on his death* An estate
in Famborough was granted to him in the year following
the disgavelling Act.
♦ Hwt. 7- Sir John Fogge, of Kepton ♦<
t"Hftitt. 8< Sir Christopher HaleB, of Eastwell t-
fiL4fi3. jj^ j^^ acquired before the disgavelling Act of 31 Hen^
YIII., among other estates of various tenures (many being
held by castleguard rents of Dover Castle )j the manor of
Wingate in Littleboraej with 95 acres of arable, 50 acres
in Maidstone, with hcuseSj orchards, &c. ; the manor of
Ores, or Grays, in Chislct, with 220 acres; Gore in Up-
church, with 200 acres ; 8t- Alban's Court, with 94 acres
in Newingtonj manors and large estates in Eastwell and
Scaton, a messuage and lands belonging to St. Augustine'^
t Orig. Abbey, near Canterbury, with others in Adisham J.
viiif si. By the Act 28 Hen. VIII. c. 50 he acquired " the manor
of Howfield with its appurtenances in Chartham, Thaning-
ton, Harbledown, and elsewhere, and in any place between
any part of the river extending from Wye to Canterbury,
and the highway extending from Boughton under Bleane
to the parish church of Harbledown, belonging to the sup-
pressed priory of St. Gregory in Canterbury," including
four meadows in Thanington demised to the said Sir C.
Hales by the said prior, and 9 acres in St. Giles' Mead
in Westgate, Canterbury, and a croft with 6 acres in St
Dunstan's by the Westgate, all which premises were
granted to the said Sir C. Hales to hold in capite by
fealty only.
I
XVI.] Disgavelled Lands. 401
He had many other estates in Canterbury and elsewhere
granted to him after the disgavelling Act. He died in
33 Hen. VIH., leaving co-heiresses, whose estates are
enumerated in the inquisition post mortem.
9. Thomas Hardres, of Hardres Court*. • HMt.«.
' 305.
10. Sir Percival Hart ~.
11. Henry Hussey t« t Hatt. v.
12. Edward Isaac:!:, of Patrixbome. j PhiUp.
By the inquisition taken on his death in 17 Eliz. it^^*
appears that he died seised of manors and lands in Adis-
ham, Bekesborne, Bishopsbome, Boughton under Bleane,
Ickham, Sturry, and Westbere, most of which had come
to him by inheritance before the disgavelling Act of
Hen. VIII.
13. Godfrey Lee, of Delce§. § Hnit.
14. Edward Monins, of Waldershare.
15. Thomas Roydon, of East Peckham.
16. Reginald Scot, of Smeeth.
17. Anthony Sondes, of Throwley ||. i|Ha»t.vi.
18. Edward Thwaites ^. fHii«t.vii.
19. William Waller ♦♦of Groorabridge. ^so. '
20. William Whetenhall. m. »7%
asa.
21. Sir Thomas Willoughby, of Chidingstone.
22. Andrew, Lord Windsor.
Although it would not be possible here to furnish a de-
scription of all the estates aflfected by the Act of 1548, it
will be apparent from the list subjoined that they were
even more numerous than those of which the tenure was
changed by the sweeping Act of 31 Hen. VIII. Excluding
the twelve persons, who have been already mentioned as
• See the Patent Roll for 32 Hen. VIII. pt. v., to which Hasted appears
to refer, vol. ii. p. 100; Origimlia, 31 Hen. VIII. pt. ii. p. 291, and the
Inq. pott mortem of Sir P. Hart in 22 Eliz.
Dd
included in ttc operation of both acts, wo huTO the felloff*
ing list remaining: —
II L Persons whose lands were disga veiled by the Act of
2 and 3 Edw. VI. alone :
1. Thomas Argal, of East Sutton*,
2. Sir George Blage.
Ho died in 5 Edw, VI, holding the estates of Goulds
Chantry at MaidstonCj and the lands of Stampitt's Chantr}*
in Darent and Dart ford j these latter contuimng about 120
acres. The fields belonging to Gould's Chantry are nikmi4
in the inquisition. Hasted gives an inaccurate accoont of
these estates^ voL iL 376, and iv. 296,
3. Christopher Bloor *, of Eainham,
4. Sir Martin Bowes, of North Cray,
He purchased the manor and advowson and thirty houses
in North Cray by royal license, in 38 Hen. VII L, of Sir
Boger Cholmley before mentioned. By other grants in
the same reign he acquired the manors of Rucksley and
Hodsallj and Maliwell in Ash 5^; and, according to his in-
quisition post mortem^ taken in 8 Eliz., he died seised of
the estate of Blackfem in Bexley, with more than 400
acres of land in Bexley, and the hamlet of Welling.
5. John Colepepper, of Aylesford.
6. Thomas Colepepper, of Aylesford.
7. Thomas Colepepper, of Bedgebury ".
* For his disgavelled lands see Ori^. 36 Hen. VIII. pt. vi. 21, and
his Inq. post mortem, dated 6 Eliz. He held the seats of Kenchill, Godden
and Morgieu in Tenterden, and lands there called Eenchill and Howsnej*
in that parish and in Ebeney, the manor of East Sutton, a wood called
East Sutton Copse, the manor, &c., of Densted, houses and lands in
Charthara, and other lands therein described. Hast. vii. 211, 305.
y Grig. 31 Hen. VIII. i. 157, and 35 Hen. VIII. v. 23.
■ Hasted, vi. 78, 80. Grant of Combwell Priory with manors and lands
in Combwell, Lesthurst, Hook, and Coldrcd, 29 Hen. VIII. (Ellis) Dugd.
Monasticon, vi. 313.
XVI.] Disgavelled Lands. 403
8. William Colepepper.
9. Kichard Covert; of Slaugham (Sussex).
10. Stephen Darrell, of Horsmonden.
11. Thomas Darrell, of Scotney.
These Darrells were brothers, sons of T. Darrell, Esq., of
Scotney. In 36 Hen. VIII. a grant was made to S. Darrell
of three houses and lands in Horsmonden *, to hold by the * Hast v.
314.
service of one-twentieth part of a knight's-fee. Two years
afterwards we find a license of alienation for T. Colepepper
of Bedgebury to sell to the Thomas and Stephen Darrell,
mentioned in this list, his manor with land and woods in
Chingley and Goudhurst " in le Wild of Kent," and other
tenements lately belonging to Boxley Monastery, dis-
solved*.
12. Herbert Finch,
13. Sir John Gate, of Whitstaple.
(He was attainted for joining in Wyatt's rebellion ; see
under the name of Thomas, Lord Cromwell, ante.) " He
was a great dealer in the suppressed religious houses ^"
14. Thomas Harman, of Crayford.
15. Sir George Harper, of Sutton Valence.
A grant was made to him in 33 Hen. VIII., of Hens-
hurst in Cobham, and certain lands belonging to the White
Friars in Canterbury *".
16. Peter Hayman.
17. Thomas Hendley.
18. Sir Walter Hendley, of Cran brook.
The extent of the possessions of Sir W. Hendley at the
date of the disgavelling Act of Edw. VI., and the fact that
they were dispersed among co-heiresses shortly after that
• Rot. Pat. 38 Hen. VIII. pt. xii. ; OHg. 36 Hen. VIU. pt. v. 91.
^ Hast. V. 166. See Orig. 38 Hen. VIII. pt. iii. 33. . .
^ See Tanner's Notit, Monast, under * Leeds Priory,' and Hast. iii. 426.
Dd2
404
Tlie Tenures of Kent
[CRAF,
date, rendei's it worth while to give somewhat fuller re-
ferences to the most important of the records relating to
his estates, than is possible in the case of the other laud-
owners in this list-
I By the inquisition taken on his death, in 6 Edw, VI.^ it
appears that he died seised of the manors and lands follow-
ing, which had been in his ownership at the passing of
the disga veiling Act of 1548*
In 33 Hen. YIIL he purchased of Sir Thomas Wyatt
the manor of Great Maytham with its lands in Kolvenden,
and the Ferry House there, and 230 acres of arable in
the same parish, described in the deed more particularly,
and the estate of ' Famingham* in Cranbook, ooutain*
ing 100 acres of arable land lying all together. In the
year before his lands were disgavelled, he purchased of
J,Cheyney his manors jmdlands in Craythorne (Hope)
and Coldred. ^|||0^|||||||||||H|^ ^^^
Between fhe yem 81 and S& Hen. YHI. he eeq^iei
by grants from the Crown the manor of Angley in Cran-
brook, with 360 acres of land there, and Algarfields
(78 acres) in Kenardington ; the manor and rectory of
Ebeney, with two houses and over 800 acres of arable
and marsh in Ebeney, Stone, and several other parishes;
estates called Oisterland and Derland in the Isle of Oxney,
containing 313 acres of marshland; the manors of Elm-
stone and Overland, with their appurtenances in Preston,
Ash, Wingham, and Staplehurst, and the advowson of
Elmstone ; the manor of ^ Haringbrook' with its lands ^
Woodchurch and Tenterden, and others called Uplands
in Haringbrook; Northslademarsh and Northslade, with
lands formerly belonging to the Abbey of Beaulieu in
Lid, and 60 acres in Cowles Marsh at Appledore. In the
year preceding the disgavelling Act he further acquired
^
ivi.J Disgavelled Lands. 405
an estate in Maidstone^ which is described in. the inquisi-
tion with much minuteness, viz. ; —
" Shales Court, lately belonging to Sir T. Wyatt, and Mr.
Hooker's house in Maidstone (Stone Street) with its garden, and
two acres in Littlehales Croft, and 94 acres at Stone Bock, and
Culter's Croft (6 a.) and two fields, called Shales-fields, and con-
taining 31 a. and 26 a. respectively, 18 a. in ' Sharnold Street/
26 a. in Combe, and 16 a. by the Hayle, and Ludwycke's lands,
with other lands and tenements in Maidstone, Loose, and Shales
Court, all lately in the hands of Sir T. Wyatt'*/'
Elisabeth Fane, one of his three co-heiresses, appears
to have inherited this estate in Maidstone; she died in
9 Eliz., and was succeeded in it by Sir W. Walker, her
son *. Anne Covert, another of the daughters, inherited • Hait. vr.
from Sir W. Hendley the manor of Ebeney with 600 acres
of land appertaining to it in several parishes, the rever-
sion of 140 acres of marsh land in Stone, called Court-
brook and Courtlees, the estate of Cranes in the same
parish, the manors of Craythome and Silwell (Newchurch),
and the reversion of the rectory of Ebeney. She died in
the twenty-second year of Elizabeth. The family seat at
Coursehome appears to have been entailed on heirs male.
19. Sir Henry Isley, of Sundridge.
20. Thomas Lovelace, of Bayford.
21. John Mayne, of Biddenden f . tHMt.v.i.
22. Walter Mayne, of Staplehurst.
^ See the Survey of the possessions of Maidstone taken in 1597, and
Gflbert's '' Antiquities of Maidstone/' p. 63, where the position of some of
the lands of Sir W. Hendley is indicated.
Hasted' s account of his lands there is inaccurate (vol. iv. 300), as may
be seen by reference to the same work, p. 78, and elsewhere. For other
notices of Sir W. Hendley's lands, see Pat. Rot. 1 Edw. VI. 3, 5, and
2 Edw. VI. 3 ; Grig, pt. i. 32 Hen. VIII. 104, and 87 Hen. VIII.
pt. iii. 12.
4o6
The Tmures of End,
[chap
340.
»5.
23. Reginald Peckham *, of Yaldham,
24. Thomas EobertSj of Glassenbury.
25. R<:)bert Rudstone, of Wittersliam-
He was of Broughton Moachensie, Having engaged in
Wyatt's rebellion his lands were forfeited, but wore re-
stored by Act of Parliament in the first year of Elizabeth f-
26- Sir Robert Southwell Jj of Mereworth*
27, Sir Humphrey Style^ of Beckenham-
28, John Tufton, of Hothfield.
29, William Twisden \\, of Chelmington,
30, Sir Edmund Walsinghamj of Scadbury.
He died in 4 Edw. VLj and was succeeded by his son,
Thomas Walsingham^ in all his estates held of the Crowa
by knight-service, as appears from his inquisition pod
mortem. Among these were the manors and land'* alienated
to him by Sir Robert Southwell in West Peckham, and
Swanton^ Mereworth, Pembury, East Peckham, and Had-
low^ It will perhaps iUustrato the mode of ascertaining
the disgavelled lands to shew the change of ownership
within a few years of an important estate in East Peck-
ham, which had been granted to Sir T. Wyatt in 31
Hen. VIII. '
Without entering on the question of the original tenure
of these lands, which seem to a great extent to have formed
part of the demesnes of the priory of Christchurch, we see
• Hil. 35 Hen. VIII., Mem. EoU. 17.
' He was attainted and executed in the first year of Queen Mary's
reign, for his share in Wyatt's rebellion : see under Thomas, Lord Crom-
weU, mprh. Some of his estates were granted to Sir John Baker and
others, but a considerable portion was restored to his son, William Isley,
by letters patent in 1 and 2 Ph. and M. dated March 8, where their de-
scription may be found. Some of his disgavelled lands are mentioned in
the case of LennardY. Sussex, suprh. See also Orig, 32 Hen. VIII.,
pt. i. 90.
xvi.j Disgavelled Lunch. 407
by the records now cited that at any rate they were in
the ownership of Walsingham during the years 1548,
1549.
In the Patent Rolls of 31 Hen. VIII. we find the grant
to Wyatt, followed in 35 Hen. VIII. by the inquisition
on his death, describing the lands as then inherited by
Sir T. Wyatt, his son. In the Patent Rolls for the year
of his death ^, occurs a license to alienate to George Mul-
ton, of Ighthara, "all those lands and tenements (de-
scribing them) belonging to the manor of East Peckham,
and the manor and all the lands lately demised by the
Prior of Christchurch," &c. Two years afterwards another
license of alienation in the Patent Rolls shews, that G.
Multon aliened to Sir Edmund Walsingham *^all those
lands and tenements in East Peckham" (describing them
as before) in fee. Then in the year following the dis-
gavelling Act, on the death of Sir E. Walsingham, his son
and heir receives livery of the same lands as part of his
father's inheritance.
It is of course only possible here to give an outline of
the contents of the records in such cases ^.
31. Thomas Watton, of Addington.
32. Thomas White.
The lists here given, though barely furnished with notes
and references, show that a very large proportion of the
customary lands of Kent were made, and in fact are now,
descendible at common law. The possessions of nearly
seventy of the principal landowners must necessarily have
spread into every part of the county; when, therefore,
we consider how great a proportion of the whole land in
Kent was never gavelkind at all, being held originally in
« Pat. 35 Hen. VIII. pt. ii. »» See also Kent. Arch. Soc. v. 246.
4jo8 The Tetmres of Kent [chap*
a superior tenure, and on the other band how great a pro-
portion of the ancient socage lands have been actually
disga veiled by the oomprehenslvo Acts of Parliament above
cited, it certainly seems remarkable that the impression
should have prevailed in the last century, **that almost
as much land was gavelkind as before the passing of those
aets,^' and in our ovni time, that all except an iuBignificant
part of the land is held in that tenure.
While the records of the county were diflficuit and ex-
pensive of access^ it was natural that great stress should
have been laid on the eooimon presumption concerning
land in Kent; it was, however, certain that sooner or
later it would bo iomuX that the presumption is liable to
break down, and that very much less land is there de-
Bcendible to heirs male by the customj than has been lately
supposed. It would be tedious but not impracticable to
mark out, as in a register, the tenure of each estate in the
county, to enumerate the lands which remain under the
influence of the custom, allowiTv^ for tht^<t> eases where the
evidences of identity have been really lost.
Various plans have been proposed for removing the
inconveniences of doubtful tenure in Kent ; among others,
a general abolition of gavelkind has been recommended,
and failing this, a power to be given to owners beneficially
entitled in fee of disga veiling by a deed enrolled. Whether
either of these plans should in the end be adopted or not,
it seems for the present to be useful to remember, that in
every case of dispute the real tenure can be discovered
without undue reliance on a presumption, which may, and
often does fail, when disturbance of title is most to be
avoided.
From the time when the apparatus of the feudal system
for the preservation of the law of tenures was abandoned,
I
XVI.] Disgavelled Lands. 409
it has become more difficult to trace each dealing with
land by means of the public records. The object of the
foregoing chapters has been to shew, however imperfectly,
that abundant materials are there to be found for a history
of the tenures of Kent; much more exact and valuable
information may of course be given on the same points
by persons who have more practical experience in dealing
with the same materials ; but if it is shewn that the tenure
of each estate can be demonstrated down to the period of
the disgavelling Acts, something will have been gained
for modem and practical purposes.
APPENDIX.
LIST OF LAimS HELD BT AHOIEHT ENiaHT-BEBVIOE
m EEHT.
(Taken firom Domesday Book, the Book of Aid, and the Feodaiy of Kent.)
Parish.
Manors,
Parish,
Manors.
Acrise
Acrise.
Aylesford
Aylesford.
Addington
Addington.
11
Cossenton.
Aldington
Aldington.
11
Eccles.
Alkham
Alkham.
11
Tottington'.
11
Everings.
Badlesmere
Badlesmere.
ti
Hallmead.
11
Woods-court.
11
Hopton.
Barfreston
Barfreston.
Allington
Allington.
19
Hartanger.
Aflh
Fleet.
Barham
Barham Court.
Goldston.
E. Barming
E. Banning.
jj
Gosshall.
11
St. Helen's.
Gurson.
W. Barming
Jennings-Court.
Lees.
11
W. Banning.
Overland.
Beckenham
Beckenham.
))
Twitham.
11
Foxgrove.
A8h(byWn)thain) St. John's Ash.
11
Langley Park.
yy
North Ash.
Bekesboume
Bekesboume.
11
South Ash.
Benenden
Benenden. .
11
Scotgrove.
11
Combden.
Ashford
Ashford.
11
Hemsted.
11
Estiire.
Bethersden
Eytchden.
11
G. Repton.
Betshanger
Betshanger.
11
L. Repton.
Bexley
Bexley.
11
Wall.
Bicknor
Bicknor.
Ashurst
Ashurst.
Bilsington
Bilsington.
11
Buckland.
Birchington
Garling.
■ TottiDgton was part of the bonoar of Crevequer, and held tfi eapite Inq, p,
mortem T. Palmer, 23 Hen. VII. Eocles was part of the Duchy of Lancaster ; it was
held of the duchy by knight-senrice by Edward Poynings, who died 14 Hen. VIII.
413 1
^H A?PRNDIX*
Parisk
ManoTB.
Farinh
Mant^rt.
Birliiig
Birling.
Bridge
G. and L. Baia^
Bishopabonmo
BiBhopsbouTiie.
ker&.
JJlackmanfltonB
Blacltmflaetoao.
Bromley
Bromley,
Eleane
Bleane,
ti
Simpsons.
i It
Butler's Court.
jj
Sundridge.
Well Court.
Broomfield
Broomfield.
Eoimington
Bonnington.
Buckland (near
If
Kennetts.
Dover)
Buckknd.
>9
Shingleton.
Buckland (near
BougLton-under-
Ringley Wood^
Bkane
Boughton.
J*
Buckland,
jf
Bonghton-Couit.
Burham.
Boiighton-Aluph
Bougliton Aluph.
Bnrmarsli
Abhot*s Court,
?>
SeatoB.
11
TringBtonc.
n
Wilmington.
Capel
Coldham,
Boughton Hal-
Chalk
E-andW.Becclw.
herbe
Bewley.
Challock
Otterpley*
jf
Boughtoa Mal-
Charing
Charing.
herbo.
I?
E. Lenham.
Boughtou MoE-
Bough ton Mon-
J?
2few Court*
Chelsea
ohelaea^.
1)
Kaywood.
Boiley
Boxiey.
It
Stniey.
jj
Overhill.
jj
Pettas.
>f
Wavering,
Charlton
Charlton,
BrEboTirne
Aldgbse,
II
Wricklesmarsh.
jj
Brabourne Lees.
Chart Sutton
Chart Suttton.
17
BLreholt.
Chartham
Horton.
ft
Hampton.
i>
Shalmsford.
*i
Park Earm.
Chatham
Shareted-
Pounds.
11
Snodhurst.
BlBBt^d
Blasted,
n
Wadedade.
Branchley
Barnes.
Chclafield
Chelsfield,
**
E. Bokinfold. 1
11
Goddington.
it
Chukeswell.
CheritoB
Ackhanger,
ii
Cop^avc.
11
Casehonie*
n
Masealla.
ji
Cheriton.
ir
Parmcks.
11
Enbrooke,
b BooghtoQ Monchelsea and Palsty Court, with 220 acres of land, held by Cathexine
Peckham of the King in capite. Vide her inqaisition post mortem 7 Hen. VII.
« Ringley Wood. See Inq. p. mortem of Thomas Frogaall, 20 Hen. VII. That it
is a complete manor, see a nmilar inqaisition on death of Henry Lee, 30 Hen. VII I.
APPENDIX.
413
ParUh,
Manors,
Parish.
Manors.
Cheriton
Oaks.
The Crays
Ruxley.
)}
Swetton.^
99
St. Mary's Cray.
))
Sweet Arden.
99
Paul's Cray.
Chevening
Chevening.
Crundale
Hadlow.
>>
Chipstead.
99
Tremworth.
i>
Morant's Court.
99
Vanne.
Chilham
Chilham.
Cudham
Cudham Castle.
»
Esture.
99
Mares Place.
n
Herst.
Cuxton
Beresse.
»
Shillingheld.
99
Cuxton.
)>
Youngs.
99
Wicham.
Chislet
Chislet.
Dartford
Dartford.
99
Grays.
99
Portbridge.
Cliffe (by Roches-
Davington
Burdfield.
ter)
Ballards.
99
Davington.
>>
Batts.
99
Eishboume.
»>
Cerdons.
Denton
Denton.
f9
Mortimers.
99
Tappington.
)>
Northope.
Deptford.
Deptford.
>>
Southwold.
99
Saye's Court.
W.CMe
Solton.
Detling
E. and W. Court.
})
W. Cliffe «»
Ditton
Brampton.
Cobham
Henhurst.
99
Ditton.
>>
Mount. .
99
Sifleston.
Coldred
Coldred.
Doddington
Down-Court.
99
Popshall.
99
Sharstead.
Cowling
Cowling.
Dymchuroh
Eastbridge.
Cranbrook
Buckhurst.
Eastling
Arnolds.
9'
Copton.
99
Diven.
99
Sissinghurst.
99
Huntingfield
99
Stone.
Court.
Crayford
Crayford.
99
North Court.
99
Hoobery.
99
Holies*.
The Grays
Foots Cray.
Eastry
St. Alban'8 Court.
99
Grays.
99
Shingleton.
99
Kitchen Grove.
EastweU
EastweU.
99
North Cray.
Elham.
Elham.
* West Cliffe. Inq.p. mofiem ThomaB Cobham, 20 Hen. VII.
' In 20 Edw. III. held by Lady De Campanift as one fee : in the reign of Henrj
VIII. by A. Ancher and Qreenstreet; described as "lands and woods in Eastling
called RoUes, once parcel of Dyre Court, and help by castleguard rent of Dover
CMtle."
414
APPENBIX.
^^
Fariik
ifa»or#.
Pmsk
Mamr$.
Elbitta
MoUEt,
H&dlow
CaiiBtoiis.
Elmste4
Elm&ted.
ri
Crombery.
11
Boutbligh.
t»
Pcckliains.
Eltham
FJtham,
L. HaUJag
Lmngiidgci.
#f
East Horae.
HalBted "
HalsteiL
VI
Well HiiU.
Ham
Hara.
TM^
Erith.
Harbledown
Poldlmnt.
Eynsford
Afiton Lodge »
L. Hardjes.
Diggs Ccmrt.
*f
Ejnsford.
ri
Lower Hardrea.
jj
South Court
XJppt5r Hajdres
XI. Hardres,
Eythorue
Elmton,
Harriouhaiu
E. Faiborne.
W. Farleigh
W, Farldgh,
**
W. FurlKirne,
91
Totesham Hall.
J)
Harrii^Ubam,
I'amborQUgb
Fornborough,
?i
HarbUtou.
»?
FarnboTOTigli
If
Marley Court**
mu.
Haitioy
Hartley,
Fammgham
Chartons.
Harty (Isle of)
Chaxnpion Courts
*i
Cbimmans,
11
LonghoQs«r,
n
Farmngtmm.
i»
Moat.
Esredissi
Fa^ershami
11
Norton,
Fawtham
Old jmd Nt'vr
j»
Saye'& Court
Fawkliam.
Hastiugleigh
Hastingkigh,
Folksftone
Folk stone.
Hawkinge
Biieherst.
„
Tirlingbam,
.t *
Codibo.
Frindsbuiy
Esdiugham.
Sever
Hever,
Frinsted
Frinated.
Sigbam
Littlechurcli,
>»
Fokeham ^.
IT
L, and G, Oakley.
f>
Meriam*t4 Court.
Higb Htdtou
Tiffeudea.
u
Yokes Court.
Hoc St, War-
flilliTaghftTn
Gilluigham.
burgh
Hoo.
n
Grange.
Honsmonden
HorBBiondeu.
»i
E, aadW. Court,
Horton Kirby
Benuondst^y.
Goodnestoa©
Goodneat^ne,
II
Horton Kirby.
n
Poplar Court.
Hot^fidd
HatMeld,
Graveuey
GrikVtJivy.
Hougham
Hougham.
Graresend
Gmvcaeud.
11
Hougham C^uit.
Gimston
Gunston.
ft •
Maxtoa Court.
' Fokeham. Part of St. Augagtinc's barony : Inq, post mortem of James Diggi,
28 Hen. VIII.
f Harrietshara. Hugh de Gerunde had one koight's-fee here in 20 Edw. III.,
which in the reign of Henry VIII. was held by Sedley, "et patet per Antiquas recordas
in Scaocario quod tenetur de Rege in capite at de Curi& de Redlevet."
APPENDIX.
415
Parish.
2fanor«.
Parish.
Manors.
Houghan
Siberston.
Littlebourne
Wingate.
Hunton
Bensted.
Luddenham
Luddenham.
»
Hunton.
Luddesdown
S. Buckland.
Hurst
Goldenhurst.
)9
Luddesdown.
>>
Hurst.
Lullingstone
LuUingstane.
Ickham
Apulton.
>>
Lullingstone ^.
Ifield
Hever Court.
»»
Peyforer.
Ightham
Ightham.
Lydden
Cocklescombe.
>>
Moat.
>>
Perry n.
»>
St. Cleres.
>>
Swanton.
Kemsing
Kemsing.
Lyminge
Ligh Court.
Kenardington
Kenardington.
n
Sibton.
Kenmngton
Kennington.
)»
Lympne.
Keston
Keston.
Lympne
Berwick.
Xingsdown
Chepsted.
99
L. Wilmington.
»
Chepsted Hever.
>>
Otterpoole.
>»
Kingdown.
>>
Street.
))
Maplescombe.
Maidstone
Maidstone.
Xingstone
Kingstone.
>»
Mote.
Knockholt
Knockholt.
yy
G. Buckland.
EDolton
Knolton.
W. MaUing
W. Mailing.
Lamberhurst
Lamberhurst.
)9
Clements.
E. Langdon
Langdon.
(St. John's) Mar-
>>
Pising.
gate
Dene.
W. Langdon
W. Langdon.
Mereworth
Mereworth.
Langley
Brising.
)>
Swanton Court.
>>
Langley.
>)
Yokes Place.
Leaveland
Leaveland.
Merston
BaUards.
Lee
Lee.
)>
East Hall.
Leeds
Leeds.
»9
Hurst.
Lenham
Down Court.
>»
Hurst Hall.
»
Lenham.
n
Merecourt.
»
Middle Shelve.
»»
Merston.
»
West Shelve.
Midley
Midley.
Lewisham
Lewisham.
Milsted
Milsted.
Leyboume
Leyboume.
Milton
Milton.
LitUeboume
Garrington.
Milton (by
n
Littlebourne.
Gravesend)
Milton.
>>
Walton.
Minster
Minster.
•» Lullingstone, with •• Resse, Fokys-Peyforer, and Cockburtt," held of the king
in capite by military lervice by William Peckham.— Jit^. post mortem 5 Heo. VII.
4i6 -q
im^ AFFENI>I1£*
FardL
J!/rtTM?r#.
Pariih.
Mam^§.
Minster
Thome
Norton
Proreudera,*
ri
Spemers,
tt
Sttippin^oii*
11
Waschesti^r.
Kureteiid
Nuf^tiifld.
Jlolaib
Witherlmg.
Oar©
*Oaie.
I. Moneyham
L. Moueyham,
OflTham
Offham-
Monks Horton
Monks Horton.
i»
Snodbeane.
MurstoE
Murston.
Orleston
Orleston.
Kackington
Heppington.
Orpington
Mavfield Pluoe.
11
Hethenland».
Ospringe
Cokt^\
}f
Nafkington.
ff
Etvyland-
ii
Sextries,
H
Futwood.
11
Staple^te.
)1
Gapringe.
Kettleated
Hylth Pitrk.
it
Queen C<?urt
jj
Nettkstead.
Otford
BaiiehuH.
FewcbuTth
Organers.
rt
Otford.
jt
SilwelL
M
Surgearita Otfofd.
Kewenden
Loascngham.
Otham
Othain.
^f
Newonden,
Ottordon
HeM.
Kawmgton
Newington BeU-
jt
Otterdeii,
houso.
Oxney
Oxnty,
ft
Ifewington Ber-
Padleaworth
Padka worth.
txam.
Ptttrixbouni«
Highiun Wood.
t)
Overland.
11
Patrixboume.
Newin^n (by
W. Peckham
Oxenhoath,
Sittingbourne)
Ncwington.
1^
W. Peckham.
Kewnham
Champion's Court.
Penshurst
Penshurst.
?f
Sholand.
11
Yensfi^ld.
IfomngtoE
Ratling.
Potliani
Sirardliug.
11
Soles.
PeTington
Maimaina.
Ifortbbounie
L. Betshangcr.
J?
Fi^iingtoti.
If
FJDgleisham.
jf
Sburhind.
» n
North bourne.
tt
Surrenden,
*l
Tickcnhurat.
Pluekky
Roting.
i*
West Court.
PI UDi stead
Plumsteml,
Northfleet
Ifield Court-
Postliug
Postling.
fi
Korthflcet.
Preston (by
KoTton
Norton.
Wingham)
Preston.
* *' James Hales was tenant (35 Hen. YIII.) of forty-two acres called Hethenland;
and a house and lands called Staplegate; and lands called Natington, containing
forty-three acres by estimation." — Petifs Notes on Feodary of Kent.
^ Cokes. A tenement or messnage in Ospringe held of the king t» eapUe by knight-
serrioe. — Iftq, poH mortem Rich. Cocks, 16 Hen. VII.
APPENDIX.
417
Parish,
Manors,
Parish.
Manors.
Preston (by
Sellindge
Tattenham.
Faversham)
Perry Court.
>>
G. Wilmington.
>)
Westwood.
Selling
Bewper.
Reculver
Reculver.
)>
Selling.
Ridley
Ridley.
Sevington
Hawkswell.
Eingwold
Ringwold.
»»
Sevington.
Ripple
Detling.
Sheldwic-i
Sheldwich.
>>
Ripple Court.
Sheppey
River
Archer's Court.
(Isle o:)
Norw v»d.
i>
Kearsney Abbey.
»
Stampits.
> >
Rivor.
Shipbome
Shipbome.
RocheBter
G. Delce.
Shoreham
Chaaips.
»»
L. Delce.
>>
Cockhurst.
>>
Nashenden.
>>
Filson.
Rolvenden
Frensham.
)>
Halsted.
)>
Forsham.
>>
Preston.
»>
Halden.
»>
Sepham.
>>
Eeinsham.
»
Shoreham.
>»
Lowden.
Shome
Shome.
>»
L. Maytham.
Shoulden ,
Cottington
»>
G. Maytham.
Court ».
Ruckinge
Poundhurst.
Sibertswold
Upton Wood.
>>
Ruckinge.
Sittingboume
>>
Westberies.
(with Milton)
Sittingboume.
»
Westgate.
»»
Milton.
Ryarsh
Ryarsh.
»>
Norwood Chaste-
(St. Lawrence)
ners.
Ramsgate
Ossunden.
Smeeth
Evegate.
>»
Nether Court.
Snargate
Snargate.
>»
Upper Court.
Suave
Suave.
(St. Mary's)
>>
Snavewick.
Hoo
Wimonden.
Snodland
Veeles.
Saltwood
BrockhulL
Southfleet
Poole.
»
Saltwood.
Stalisfield
Darby Court.
Sandhurst
Sandhurst.
>»
Stalisfield.
Sarre
Sarre.
Standford
Shome Court.
Seale
Seale.
>>
Standford.
Sellindge
Ealdham.
>>
Westenhanger.
>>
Haringe.
Stansted
Soranks.
>t
Sellindge.
„
Stanstei
* Cottington Court ; vidif inq. post mortem Tbonuu Burton, 24 Hen. VIL
£ e
4lS
APPENDIX.
FariBh,
Mtrnn.
ParisL
Mam>r»*
Btdliug
Fryerne Park,
Thurnham
Eynton-
Stockbtuy
Cowstcd,
f.»
Thurnham,
n
Sfcoekbury,
TilmanatoEie
North Court
„
Telated.
31
South Couit
Stodmanh
Stodmarah,
Tonbiidge
Bariiea.
Stgka
Tndurs.
i»
Dachurst,
jj
MulmainB.
II
Hilden.
Btone
Cotton.
ty
South.
t*
Blone.
Toug
ToBg.
?t
Btoae Castle,
Tudely
Tatlingbuty*
Stow ting
Stow ting.
n
Tudci. .
Strood
Boncakts.
Tunstall
TunatalL
jf
Goddington,
Ulcombe
Ulcombe,
ft
Btrood.
Upchurch
Gore.
Bturry
Mflyston Court.
Waldershare*
Apultou.
ji
Sturrj-.
It
Waldcrshare.
ISiindridge
Sandridge.
Walmer
'VValmer.
Sutton {by
Waltbam
Ashenfield. |
Dover)
East Button-
M
Wudnall,
rt
Button Court,
II
Whitcicre.
f
Sutton Farm,
T9
Waltham,
E. Suttoa
Charlton ,
Wabingbury
Canons' Court,
II
K Button,
JI
Weatbery.
SuttoE-at-Hone
Sutton Place.
ft
Watringbury.
Sutton Valence
Sutton Valence,
Westber^
Has<^den.
Bwalecliffe
Chefstfield,
fi
Hopland-
Bwanscombe
Alkardin.
WeBterham
"Weaterhmn.
iJ
Swanscombe,
WeitweU
. Beamston.
fiwingfield
Bonnington,
11
Dean Court.
n
Langdon.
jj
Ripple Court,
if
Swiagfield.
it
Perytowu.
Tenterden
God den.
WbLtfield
Bewsfield,
II
Tcnterdt-n,
tt
Liuacre.
Teynhom
TejTibam
M
L, rising.
Throwley
Tbrow]ey.
II
Whitfield,
ThuTDham
Addington.
Whitstaple
Cundies-hall ",
ft
Bimbury,
IJ
Clowton-
ff
Addiagtoa Cob-
II
Shourt.
ham.
11
Tangreton.
iw
East Court.
11
"V^ldtstaple.
" Cnndies-ball, with fifty-two acres of demesne, held by William Roper by knight-
ier?ice; see his inq.post mortem 7 Hen. VII.
APPENDIX.
419
Parish.
Manors.
Parish.
Mdfiors.
Wichling
Wichling.
Woolwich
Southall.
E. Wickham
E. Wickham.
Wormshill
Wormshill.
W. Wickham
W. Wickham.
Wotton
Wickham Bushes.
WickhamBreaux "WickhamBreaux.
99
Wotton Court
Wilmington
Wilmington.
Wouldham
Bewley Court.
Wingham
Wingham.
99
Littlehill.
Witteraham
Owlie.
»
Starkey.
>>
Palsty Court.
Wrotham
L. Yiildham.
Woodchnrch
Place House.
»
W. Taldham.
»>
Woodchurch.
»>
Wrotham.
Woodnesborongh
Grove.
Wye
Wye.
»>
Hammill.
Yalding
Henhurst.
>>
Hammill Court.
»
Ladingfurd.
>»
Polton.
»
Woodfold*.
>>
Woodnesborough.
" Woodfold. *' Noti, quod non solvit aliqaem redditam (35 HeD. VIII.) et tenetar
per iervitium militare.*'— Pirfi^* Notes on Feodary of Kent.
INDEX.
A.
AOBS, Kentish, 129 ; Flemish, ib. ; Cor-
nish, ib,
Advowsons, descent of, 11, 215, 218,
298.
Aid, Book of, described, 283, 313.
Aids, Feadal, 283, 344, 346.
Allodium, 9, 26, 64, 112, 161, 175, 197,
225, 237 ; distingnished from gavel-
kind, 29, 269.
Ancient demesne, tenore of, a variety of
socsge, 179; must be as old as the
Conquest, 157; tritd by Domesday
Book, 117, 179; manors of, 180; de-
mesne lands in, ib. ; copyholders in,
181; freeholders in, ib.; their privi-
leges, ib., 182; their customs, 183;
customary freeholders, 182 ; extent of
the tenure in Kent, 183; demesnes
not gavelkind, ib., 190; courts of an-
cient demesne, 181, 193 ; barony created
out of, 199 ; rents out of, 188 ; " gavel-
kind tf» eapite " in manors of, 313, 344,
348.
Ancient socage, (see Burgage, Gavelkind,
Ancient Demesne).
Avi r-land, 32.
B.
Barony, tenure by, 197, 305, 322, 334,
341, 344, 356 ; the highest service of
chivalry, 197; bnrons spiritual and
temporal, 198; barons of Kent, 199;
of Dover Castle, ib,
Benerth-service, 34.
Benrip-service, 34.
Blanch-lands in Kent, 284^ 338.
Blanch-rents, 337.
Bookland, 12, 78, 119 ; incidents of, 13,
119 ; not gavelkind, 29 ; of the Churchy
18; of the nobles, 25.
BordaHi, 9, 106, 107, 187, 148, 149, 192,
215 ; an inferior freehold tenure^ 120,
147; their service, 33, 119.
Borouf^h-EDglish, (see Burgaire).
Burgage, tenure of, described, 147, 152;
condition of ancient boroughs, 152;
a species of socage, 155 ; affirming
a boroufi^h, 153; system of tythings,
154; only in ancient boroughs, 156;
cannot be transplanted, 157 ; extent of,
in Kent, 160 ; general and special cus-
toms of, 41, 88, 89, 177; borough-
English, 41, 87, 89; where prevalent,
163 ; custom of Marchet, 164 ; origin
of borough-English, 165 ; in freeholds,
ib. ; in copyholds, 166 ; varieties of,
168, 170; connected with customs of
gavelkind, 171, 174, 175; inconveni-
ence of the custom, 175 ; special customs
of boroughs, 177; as to devise, ib.i
custom of London, 178 ; alienation by
infant burgess, ib. ; rents issuing from
burgage and borough-English land.
175. 188.
Castlciiuard, tenure of, 199, 218, 306,
316, 320, 322. 330, 341, 351, 354, 359,
399 ; demesnes not gavelkind, 9, 200,
210, 217; introduced into Kent, 199;
varieties of, 200; of Dover Castle, 199;
of other castles, 201 ; castleguard rents,
202, 378 ; customs of castles in Kent,
203; commutation of services, 206;
converted to socage, ib., 207; advow-
sons of manors held by, 218.
Comage, tenure of, 227.
Corn-gavel land, 137, 353.
Cotarii, 107, 109, 121, 149, 215.
Curtesy, tenant by, (see Gavelkind).
422
IIIDS31.
13mnger, cuatoiu of, in Wmili!, 196,
Disga veiling povv'er, 365 \ hy prerogative,
ib. I privilege of A rcb bishops, 366 ; eon-
^ned to lands of ifiym^diaie teiiODtB,
368.
Difgnvelling hj Act of PttrWiiment, a71,
379; necessity tor, 382; Act tif 81
Hen. YtlU 380 ; A<rt t»f 2 jutd 3 Edw.
YL, 363 i iticittetiis of disgii veiled
lands, 3B5 i later di^g-a veiling nctSj
Dlsga veiled lands of Art^Eil, 402 ^ Bnkpr,
392 J Beclttundc*, 367 [ Btrti field, *6. ;
Bliigp, 402; Bloor, £*.; Boweg, aa8,
402 ; Brown, 390 ; Lord Bormigb,
398 ; Cbampney*. 399 ; Clieytiey,
384, 393, 404; Clirjlmley, 394; I^rd
Cobh«ni, 369. 382. Syt*; Colepepper,
402, 403; Covert, 403, 405; Lf»rd
CroniFfell, 376, 399; D4rren, 403 j
Fetjpkw, 399; Fogfr, 400; Fjucb,
403; UuU. t^. ; Gatewyk, 3T0;
Guildford, 365, 374, 394; ILdos,
360, 394, 400; Hardrea. 401- Utu--
kkenden, 395 ; H a fid lin , 403 ; H n rpor,
t*.; Hart, 401; Hiijmftn, 403; HeTid-
lej, 1^-, 405; Huetsey, 401; Isaac, ih.;
Iiley, 385, 390, 405 ; Kem]f>e, 395; We,
401; Ley bourne, 353, 372; Ivovelaoe,
405 ; May lie, ih. ; Monlns, 401 ; Mojle,
359, 396 ; Kortbwootl, 373 ; Pock ham,
31 9, 406 ; Potttr, 391 ; Pt^tt, 365, 363 ;
Rjvere, 391 ; RobertB, 40fi ; Roper,
381, 38S, 396; Roy don, 401; Rad-
ilone, 406; St. Leger, 308, 396;
Snndfi, 401; Scott, ifi. ; Southwell,
406; Style, ft.; Thwnitcs, 401; Tnf-
ton, 406 ; Twisdcu, 389, 406 j Waller,
401; Waliingljani, 406; WietflTibciU,
401 i \^Tiite, 407 ; Willoughby, 401 ;
Wilford, 397 ; Lord Windior, 401 ;
Wotton, 397, 407; Wyatt, 365, 375,
405, 407.
Divine gervic«^ tcnura of> 275,
Dotofsday Book, ftccoiint of, 113; useful
in questions of gavelkind, 123 ; tneA-
sureauted in, 116; description of Kent
in, 147.
Dower^ (see Gnrelkind, Buri^wge, Writ of
Dower),
Drong^g^, tenure uf, 65, 71, 105 ; orig^
of, 23t 60, 61 ; commriQ in Kent, 65 ;
iind ill tlie Nortb, 66 ; E^ntiaL reoord
coiijCeniiug, 03] 72.
EUtmo*jfna lihera, (s4»e FF&nciJmcnfne}~
Eacbeat, (see Gavelkind) »
Eaeheat rolls 315,
Kxchequ^r, Red Booli, a(^ ; Black Book,
344.
Felfniy, K^^uliab castom a» to, 43, 73^
Feudn] ayatcin, \ 10« 59; changed in
Kentbh \m\\\ 63 ; decline of, S«
Fine rotU, 315.
Folkldiid, 12. 33, 119,
Fniuotlmoigne, teunre of, ftmoTif the
AngbvHHJtons^ 17, 18; dutieaof teuant^
19; fmitdiid^i of lenante, 20; bow
crea»wl, 17 j not effected by tb« Con-
queeit, 65, 236; the highest ientu^
237; Bimient, \i not ^livelkind, 258^
270, 279, (c. i., ii^, xi,, iti,) ; divitioiu
of ^Aucalmoign') in Kent, 240 ; Dt)t
cbarg£.'d with feudal burdeiid, ^2;
alienation of lands Id, 244i, 356 ; land*
beoomiof^ looige, Dot gavelkind, 245w
258^ 356 ; ownership by Qmrcb no
ifvidenoo of aodant ^ncalmoigne, £59,
264, 267,
Fraok'foe, 111,
G.
Gavelkind, tenore of, c. i., iii,, it,; il
ancient socage in Kent> 9» 47 ; wr iters
on, 7; limit* of, 11, 46, 59, llS; deri^
vatiou of namc^ 29, 239 ; a freeboid
tenure, 3L ; bow created, 35 ; aticieiit
yarietii>3 of, 32, 35 ; renti and semoe*
of, 36 ; aneieut coudltiou of t«naat9 in,
37 ; semi-servile classes, 39 ; penny-
gavel rents, 37, 137; old law of, 38 j
as to alienation, 39; deviie, 40; de^
scent, 41 ; dower, 42 ; curtesy, 43 ;
escheat, fA, ; gavelet, 44, 203; the
INDEX.
423
name used in different senses, 46, (c
iv.); not merely meaning partibility,
53; customs similar to those of, 54;
Irish gavelkind, 55, 387 ; Welch gavel-
kind, 54, 56, 387 ; not universal before
the Conquest, 57 ; limits of, not dis-
turbed afterwards, 60, 79, 112; in-
cidents of, after the Conquest, 73;
escheat and forfeiture, ib., 240, 373 :
devise, 74; special customs of, 75;
general custom of Kent to devise, 77,
78 ; guardianship in, 79, 327 ; remedies
to compel guardian's account, 81 ; dis-
tress of lord, 82; alienation by infants
in, t6.; requisites for, »&., 83 ; recom-
pense to the infant, 84; customary
feoffments, 85; release by infant, ib.;
custom not favoured by equity, 86 ;
taken strictly, not literally, ib, ; profits
of fairs in gavelkind land, 87 ; descent
of rents out of, t6.;. customary dower,
86 ; similar customs elsewhere, 88, 89 ;
customary curtesy, 91, 328; common
hi gavelkind knd, 93, 95 ; waste lands,
11, 93, 95; obsolete customs of de-
scent, 96, 173 ; trial by writ of right,
96, 808 ; mode of proceeding in gavel-
kind bind, 96, 98; no trial by battle
on gavelkind land, 97, 100, 103, 308,
840; tenures inferior to, 39, 107, 106,
112, 147, (see BordarU, Cotarii) ; de-
mesnes of manors originally in francal-
moigne, or any tenure of chivalry not
gavelkind, 10, 112; com-gavel land,
37, 187, 853; tenure cannot be trans-
pbinted, 157; effect of Qeneral En-
closure Act, 158, 160; tenure in manors
of ancient demesne " gavelkind in ca-
pHe" where existing, 800, 818, 844.
H.
Half-blood, descent to, in burgage and
gavelkind, 173.
HerioU, 16, 82, 76, 109, 272.
Hondred-roUs, 815.
I.
Infiuit, (see Burgage, Qavelkind, Socage).
Inland, 38, 84^ 110, (see BordaHt).
Inrent-land, 137.
Knights, 59, 141 ; none of lands of Priory
of Christchurch, 69, 105 ; formed jury
of g^nd assize, 96 ; except in suits for
gavelkind land, 97.
Kni^i^hts of the shire, wages of, in Kent,
337 ; paid by no tenants of gavelkind,
337, 346.
Knight's-fees in Kent, 147, 246.
Knight-service, tenure of, c. xiii., xiv. ;
introduced into Kent, 10, 59 ; ancient,
knd in, is not gavelkind, 193, 197, 214;,
285 ; ancient, in manors of ancient de-
mesne, 184, 186, 192; ancient, in
manors of castleguard, 200, 205, 206 ;
ancient, in manors held by sergeanty,
223; tenure by cornage, a species of,
227 ; francalmoigne tenure changtd to,
240; created on gavelkind land, 261;
chang^ to tenure in francalmoigne,
240; amount of land held by, temp.
Hen. yi., 287, 313, 348, 844, 847;
converted to socage, 347 ; confusion in
boundaries of, in Kent, 376.
L.
Land, old measures of, 116, 123; the
librate, 71; Kentish suliog, 124, 132,
134» 135; Kentish acre, 129; Kentish
yokeland, or juffum, 131; day-work,
180; hide of Und, 126.
Land-peerage, custom of, 195.
M.
Manors, system of, introduced, 9, 121;
several parts of, are of one tenure, 851.
Monasteries distolred, 248, 244, 261, 279,
375.
Neat-Und, 32.
N.
P.
Parrock, Court of, in Weald of Kent, 195.
Partible lands, parceners, (see Garelkind).
Peers of Kent, 28.
Penny-gavel Und, 137, 853.
Hnenden Plea, 68.
Prerogative, (see Disgavelling).
424
i?a>EX.
Ret^rS'lund, 31.
Ren re, de-ectit af, issuing from gavelkind
lantli 188 j appK^adant to the geigniory,
1^. j iMiting from burgage t(?nements^
h ifugli'KnglUli lai dbt or andcnt de-
Sergeiirity* tenure of* c, i^j gnuid and
petty, 221, 32i^ 3-1 1, 347 j held onlj of
Kin^, 221 ; lit firib beld of Dabks,
234 ; T»rle< ie« of gntud, 222 ; demeisnev
not gavelkind, 223 ; petty, at Bnt
Icmght-etervit't?, ih^ ; nfterwanbt socsage,
but Dot gavelkind^ 224.
S^rg^iiiitieK eau?erted to knSgbt-g«rrice,
225 ; tcDUTG of coTHAge, 227 ; tenure of
the banner^ iL
Socage, tenure of» c. lii., 3tv. ; ancieat, (see
Aneieitt DcuieBne^ liurga^e^ GiiTelkLrid,
Fmncubnotfriit*) ; ebatigfed at the Con-
qu«ftt, 60t 72 ; fjcee Mieage, 110 ; seve^
nil custom B off S6i nui'Uge ia cajpii^,
313, 3M, 357.
Siockikiud, a varietjf of gaT^kmd, 32.
Svilingv, BuUng^Und, (sue Laud,
of),
T,
Tanistry, 55*
Tenures, mpenor to gavelkind, (ida
Fmncalinoigne, Barony, Sergeantyg
CafltlFgaiard, K night -^ervic^?. Socage tA
ThauebmU, 113, 119, 16X, 225, 332.
TbaneK, tbree cltiBseH of, £5, 2B; IcsacTt
(see Drengftge).
Tbreiig^, (*ee Drengage),
TLtb*!8, iti Waald of Kent, 195 ; impro-
priate, i«Btilng from cystoumry landg,
239, 262 j demesne titbca, 2U, 2^6;
exomptioa froni, 335.
W.
Wardibipf (see Gavelkisd)*
Wants lands, 11,93, 95.
Wedd of Kent, 193, 196.
Writ of dower, 309,
Writ erf right, 96, 97, 100,
Yoke-land, (*ee Land,
of).
|lrintcb by |anus ^aihrr anb Co., Crobn-garb, Offorb.
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