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Full text of "The Tenures of Kent"

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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has been derived from the unpublished collections of 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). 



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