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 CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
Cornell University Library 
 HD1160 .E51 1867 
 
 Tenures of Kent. By Charles I. Elton 
 
 olin 
 
 3 1924 030 052 496 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030052496 
 
THE 
 
 TENUBES OE KENT. 
 
 BY 
 
 CHAKLES I. 1 ELTON, 
 
 late pellow op queen's college, oxpord ; and op 
 Lincoln's inn, basristek-at-law. 
 
 LONDON: 
 JAMES PARKER AND CO. 
 
 1867. 
 
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©fjla Book 
 
 IS, BY PERMISSION, RESPECTFULLY DEDICATED 
 
 TO THE RIGHT HONOURABLE THE 
 
 EAEL STANHOPE, D.C.L., 
 
 PEESIDENT OP THE SOCIETY OP ANTIQUARIES. 
 
ADYEETISEMENT. 
 
 —♦ 
 
 T^HE 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 has been derived from the unpublished collections of 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, Lincoln's Inn, 1866. 
 
CONTENTS. 
 
 TABLE OF CASES p. x iii. 
 
 TABLE OF PLACES IN KENT p. xv. 
 
 CHAPTER I. 
 The Limits of Gavelkind in Kent. 
 
 Uncertainty 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 difficulty caused by uncertainty as to Tenure. — 
 Much land supposed wrongly to be Gavelkind. — No lapse of time can alter its 
 nature. — General rules as to Kentish Tenures. — What was not Gavelkind at the 
 Conquest cannot be now dealt with as such. — Exception to this rule. — What was 
 Gavelkind at the Conquest is so now. — Presumption that prima 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 Tenure now removed by the 
 publication of the records. — Distinction between superior 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 held by an ancient military service are 
 not Gavelkind. — Effect of the abolition of Feudal Tenures. — Tenure of wastes and 
 common lands. — Demesne lands. — Advowsons. — Some are Gavelkind. — Manors 
 without demesne . . . . . . . . p. 1 
 
 CHAPTER II. 
 Tenures in Kent before the Conquest. 
 
 The ancient laws of real property; Crownland, Folkland, Bookland. — Kentish manors 
 held in Francalmoigne. — Form of the charters of donation. — The Trinoda JYeces- 
 sitas. — Queen Ediva's gift to Christchurch. — Franchises. — Sac and Soc. — Military 
 services. — Three classes of Thanes. — Allodial tenants.— Drengs or Tlirengs , 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 freedom. — Alienation inter vivos.— Devise.— Bequest.— Descent. 
 — Dower. — Curtesy. — Escheat . . • • • . p. 29 
 
Vlll CONTENTS. 
 
 CHAPTEE IV. 
 
 Gavelkind. 
 
 The word 'Gavelkind' 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 
 
 CHAPTEE V. 
 
 The Norman Conquest. 
 
 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. — Esfiheat. — 
 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 
 
 CHAPTEE 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. . p. 113 
 
 CHAPTEE VII. 
 
 Tenure in Burgage, 
 
 Burgage Tenure. — The customs of the Saxon towns. — The tenure still of importance. 
 Boroughs of different kinds. — Rural 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-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., u. 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 
 
 CHAPTEE VIII. 
 
 Ancient Demesne. 
 
 Account of the tenure. — Customary Freeholders. — Terra jRegis of Kent. — Manors 
 of ATLESFOED, PULLFNS, LAETFOHD.—Cuse of Gouge v. Woodin.— 
 Descent of Rents-service.— WILMINGTON, FAVERSSAM, MILTON, MIL- 
 STED, NEWINGTON.— Counts of Ancient Demesne.— S OKINGFOLD, GIL- 
 LINGMAM. — The Weald of Kent. — Customs and Services of Tenants in the 
 Weald . . . . . . . . . . p. 179 
 
CONTENTS. IX 
 
 CHAPTER IX. 
 
 Tenure by Barony. — By Oastleguard. 
 
 Baronies spiritual and temporal. — Abbey of Faversham. — Dover Castle. — Varieties 
 of Castleguard Tenure. — Chilham Castle. — Tonbridge Castle. — Rochester Castle. — 
 Peculiar customs. — Penman's case. — Castleguard rents. Manors of EASTWELL, 
 TIRLINGHAM.—Lemard v. Earl of Sussex.— COWDHAM, BRASTED, 
 HEVER, APPERFIELD, CHE.PSTED.—Visga.velle& land.— Inquisitions post 
 mortem. — Tenure of Advowsons . .... p. 197 
 
 CHAPTER X. 
 Tenures by Sergeanty. 
 
 Grand Sergeanty. — Its varieties. — Petty Sergeanty at first a Military Tenure. — 
 Afterward held to be Socage.— Grand Sergeanties in Kent.— WEST PECKS AM, 
 SEATON, SHORNE, ARCHER'S COURT, BILSINGTON, HURST, Ac- 
 Petty Sergeanties in Kent.— OXENHOATH, ST. MARY CRAY, LULLING- 
 STONE.—NoeVs Case.—OTHAM, BEKESBORNE, &c— Sergeanties held of 
 the Archbishop of Canterbury. — Spread of Socage Tenure . . .p. 221 
 
 CHAPTER XL 
 Tenure 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 
 WESTWELL. — Early notices of the tenure. — Suit of De Bendings v. Prior of 
 Ckristchurch. — Eeal nature of the claim. — Charter of Edward the Confessor. — 
 Remarks on the case. — Opinion of Somner. — Confusion between Socage and Franc- 
 almoigne.— Manor of LITTLE CHART, SEXTRIES, LINSORE.— Manors 
 originally in Francalmoigne cannot become Gavelkind. — SHELDWICH, WARE- 
 HORSE ... p. 236 
 
 CHAPTER XII. 
 Tenure in Irancalmoigne (continued). 
 
 Case of Imshington v. Llandaff.— Tithes of RODMERSHAM— Advowson of UP- 
 CHURCH.— Manors of GOS.E, DENSTED.'KINGSDOWN.POLTON.— Eccle- 
 siastical Corporations holding lands by Military Service.— CANON'S COURT. 
 —Rectory of TOWN SUTTON.— Manor of HONICHILD, RIVER, WEST 
 LANGDON.— Queen Ediva's gift in Free Alms.— MONKTON, ALDINGTON, 
 STOWTING, EAST LENHAM, EAST FARLEIGH— Dispute as to Tenure. 
 —EAST PECKHAM.— Absence of Quit-rents from Demesne Lands.— Tenure by 
 Divine Service.— Somner's Theory. — Harbaldowne Hospital.— Total amount of lands 
 held in Francalmoigne in Kent . . • • • • P- 259 
 
CONTENTS. 
 
 CHAPTEB, XIII. 
 
 Tenure by Knight-service. 
 
 General rule.— Office of Escheator and Feodary.— Escheat Rolls.— Red Book of the 
 Exchequer.— Testa de Nevil.—The Feodary of Kent.— The Roll of Blanch-lands — 
 Difficulty of consulting records. — Disinclination to enquire into tenures. — Amount 
 of land in Kent held by Knight-service.— The Statute 18 Henry VI. c. 2. 
 — Circumstances to which it referred. — Trials of attaint. — Consideration of 
 the Statute. — Fractions of Knight's-fees. — Lands of the Church. — Lands of 
 the temporal peers. — Examination of Inquisitions post mortem in the reign of 
 Henry VI.— Manors of LAMBER.BURST, BARMING, OTBAM, JEN- 
 NING' S-COURT, BUCKLANB, LUBBENBAM, BARRIETSEAM, MAR- 
 LEY, KENARDINGTON, COCKRIBE, BRABOURNE.—Qaestion as to 
 tenure of advowsons.— UL COMB, TIRLINGBAM, LEVELAND, ORLES- 
 TON. — Alleged partitions by Gavelkind co-heirs. — Woods-court. — Estates of the 
 Earl of March— SWANSCOMBE— Early history of the manor of ERITB— 
 Trial as to tenure of EYBORNE.—MURSTON . . . . p. 280 
 
 CHAPTEB XIV. 
 Tenure by Knight- service (continued). 
 
 Importance of the record named the Feodary of Kent. — Its history. — Tenures in 
 capite. — Gavelkind held in capite. — Other records. — Hundred Rolls. — List of 
 military lands.— Escheat Rolls.— Manors of WESTBERIES, HAGBNET, 
 TRIE N STONE. —Descent at common law of lands in FRINSTED, ASBURST, 
 BOLLINGBOURNE.—Free land and gavelkind in MONINGHAM, NET- 
 TLESTED. — Descent at common law of manors and lands in BARTFORB, 
 STONE, LITTLEBROOK, SWANSCOMBE, YALBBAM, and IGBTBAM. 
 — Manor and advowson of BEGKENBAM. — Descent at common law of manors 
 and lands in EAST BARMISG, WICBLING, FRINSTEB, LEVELANB. 
 —Estates of the North wood family.— BOUGETON MALBERBE, SBALMS- 
 FORB, GRAVESENB, COCKRIBE in RILSINGTON.—Case of Cheyney 
 v. Edolfe — Free tenure of BLEANE and BO ABE COURT.— Forest of Bleane. 
 — Question concerning tenure of woodlands. — Manors of PAUL'S CRAY, 
 FOOT'S CRAY, NORTB CRAY, BOO ST. WARBURGB.—Free lands in 
 ORLESTONE and ROMNEY.— Free and customary portions of IFIELB and 
 , EEVER CO URT.— Early history of BOUGBTON ALUPB.— Its tenure.— 
 Division among co-heiresses. — Question respecting tenancy by the curtesy of Eng- 
 land.— Subsequent notices.— Pleas of the Crown.— BO YNTON in SWING- 
 FIELB.— Dispute as to tenure of waste land.— CBARING, ICKING,— Early 
 history of BURMARSB and BEAMSTON— Case of Finch v. Finch.— STURRY. 
 —Free lands in SNAVE, GARWINTON.— Other estates of St. Augustine's 
 Abbey.— STOBMARSB, OWLIE, BRISBING.—Vroots of tenure.— Sub- 
 division of estates.— SUTTON COURT, BERE COURT.— Evidences of military 
 tenure.— GOODNESTON, GOBWINSTON by SITTINGBOURNE.— Roll 
 of Blanch-lands.— Liberty of the Duchy of Lancaster.— LOWBEN, CBELS- 
 
CONTENTS. XI 
 
 FIELD, BRABORNE, FARNBOROUGH.— Other lands described in the Roll. 
 —FRENSHAM in Eolvenden.— SELLING, DARBIES COURT.— Lowe v. 
 Paramour.— The Long House farm.— CSAMPIONS CO UR T.— Castle and 
 manor of ALLINGTON, COB MAM, r RKESDEN, and VIELSTON— Records 
 relating to NEWINGTON and DIMCSURCH.— Descent to eldest son.— 
 TOTTI N G ZW.-— Rectory of Leybourne . . . * . . p. 311 
 
 CHAPTEE XT. 
 Tenure in Socage. 
 
 Authority of the Book] of Aid. — Tenures in capite. — The Baronies of Boulogne and 
 Peverel. — Custom respecting Knights of the shire in Kent. Conversions of military 
 tenure into socage in capite. — Rents in kind. — SOTEMERE, CABELL, BUR- 
 SAM, WOOD'S COURT, BUCKL AND. —Rent service of a rose.— Manors held 
 in capite by the Abbey of St. Mary Grace. — Estates of St. Stephen's Chapel, West- 
 minster. — MABLESCOMBE, SOCKENDEN, MINSTER in Thanet, 
 SWANSCOMBE.— Estates of the Cobham family.— OXENHOATH, PRES- 
 TON, RO TING.— Case concerning lands in BLUMSTED.— Manor of SAL 
 TON p. 343 
 
 CHAPTEE XVI. 
 Disgavelled Lands. 
 
 Difficulty of identifying disgavelled lands in the last century. — Opinion of Robinson. 
 — Inaccuracy of Hasted. — The Real Property Commission. — Answers to their ques- 
 tions, with cases. — Opinions of Kentish lawyers. — Two distinct periods of disgavel- 
 ling. — Disgavelling by prerogative. — By license. — Privilege of the Archbishops of 
 Canterbury. — Entries in the Book of Aid. — Aucher's Case. — De Becland's Case. — 
 Lands disgavelled which were held immediately of the king. — Gatewyh's Case. — 
 NorthwooaVs lands. — Cohham's lands. — Second period. — Disgavelling by Act of 
 Parliament. — Guildford's lands. — Wyatts lands. — Dissolution of monasteries. — 
 Confusion of tenures, — Its cause. — Castleguard lands. — " The Bill for Gavelkind." — 
 Will of John Roper. — A great part of Kent disgavelled. — History of the Act of 
 1548. — Construction of the Acts. — Wisemans. Cotton.— The collateral customs of 
 Gavelkind. — Doe d. Bacon v. Brydges. — Later disgavelling Acts. — Lands affected 
 by both the great disgavelling Acts. — Lands of Sir J. Baker, Sir T. Cheyney, Sir J. 
 Hales, Sir T. Kempe, Sir A. St. Leger, and others. — Lands affected only by 
 31 Hen. VIII. c. 3, of Lord Borough, Sir E. Boughton, Lord Cromwell, Sir C. 
 Hales, and others. — Lands affected by the Act of 2 and 3 Edw. VI. alone, of Sir 
 G. Blage, Sir Martin Bowes, Th. Darrell.— Of Sir Walter Hendley. List of his 
 estates in Maidstone and elsewhere.— Lands of Sir E. Walsingham. — Con- 
 clusion ... ..... p. 358 
 
 APPENDIX ... . . . . p. 411 
 
 INDEX . p. 421 
 
TABLE OF CASES. 
 
 Alged v. Eike, 49. 
 Altham's case, 386. 
 Arthur v. Bockenham, 78. 
 Att.-Gen. v. Parsons, 121. 
 Aucher's case, 366. 
 
 Baker v. Wich, 180. 
 
 Beddyl v. Crowther, 386. 
 
 Bishop v. Herherdefield, 174. 
 
 Boxgrave's (Prior of) case, 198. 
 
 Brittle v. Dale, 181. 
 
 Brown v. Brookes, 51, 78, 271, 272, 
 
 325, 388. 
 Bunker v. Coke, 78. 
 Burridge v. Sussex, 212, 217. 
 
 Canterbury's (Prior of) case, 198. 
 
 Chapman's case, 73. 
 
 Cheyne v. Edolfe, 321, 393. 
 
 Chichester v. Seldon, 195. 
 
 Church's case, 345. 
 
 Clements v. Scudamore, 169, 171, 
 
 175, 177. 
 Cockfield's case, 99, 345. 
 Colby's case, 56. 
 Cotton v. "Wiseman, 385. 
 Crowther v. Oldfield, 180. 
 
 Davis v. Selby, 89. 
 
 De Beclaunde v. De Beclaunde, 350, 
 367. 
 
 De Beggbrook's case, 159, 175, 187, 
 285, 368, 374. 
 
 De Bendings v. the Prior of Christ- 
 church, 6, 43, 63, 91, 259, 265, 
 268, 275, 356. 
 
 De Valoignes v. De Valoignes, 111. 
 Doe d. Bacon v. Brydges, 384, 388. 
 Doe d. Beay v. Huntingdon, 183. 
 Durford's (Abbot of) case, 345. 
 
 Everard v. Champagne, 96. 
 
 Fane v. Barr, 168. 
 Feversham's case, 95. 
 Pinch v. Pinch, 333—335. 
 Finch's (Sir Moyle) case, 333. 
 Forth v. Either, 309. 
 Pulch's case, 96. 
 
 Gatewyk v. Gatewyk, 111, 224, 
 
 229, 369, 370, 382. 
 Glover v. Lane, 121. 
 Godfrey's (Margaret) case, 87. 
 Gouge v. Woodin, 6, 190, 209, 246, 
 
 268, 271, 274, 275, 285, 347, 
 
 353. 
 Gravenel's case, 49, 68. 
 Griffin v. Palmer, 180. 
 
 Halton v. Starthop, 77, 78. 
 Heddey v. Welhouse, 175. 
 Hodges v. Hodges, 180. 
 Home v. Fresinghey, 174. 
 Hougham v. Sandys, 159. 
 Humphry v. Bathurst, 6, 185. 
 Huntingdon v. Mountjoy, 172. 
 
 King v. Dryden, 97. 
 Kingston v. Culhill, 174. 
 
 Launder v. Brookes, 16, 27, 74, 78, 
 79, 83, 100, 385. 
 
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 v. Paramour, 101, 199, 292, 
 
 293, 308, 339. 
 Lushington v. Llandaff, 6, 79, 88, 
 
 113, 259, 262, 265, 271, 275. 
 Luttrel's case, 207. 
 
 Maison-dieu (Dundee) case, 21. 
 May and Bannister v. Street, 156, 
 
 158, 160. 
 Minet v. Leman, 158, 160. 
 Mose v. Peltebeam, 91. 
 Moulin v. Dallison, 175 . 
 Muggleton v. Barnett, 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. 
 Periman's case, 182, 203. 
 Pettes v. Barnard, 100, 101, 103, 
 308. 
 
 Preston v. Jervis, 170. 
 
 Randall v. Jenkins, 175, 177, 188. 
 Bandall 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. 
 
 Adisham, 20, 70, 2-,7, 401. 
 
 Agbne 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. 
 
 Ashmerfleld, 395. 
 
 Ashton, 228. 
 
 Ashurst, 317, 391. 
 
 Aylesford, 146, 183. 
 
 Badlesmere, 194, 303. 
 Bapchild, 193, 260. 
 Barfreston, 292. 
 Banning, E., 293, 304, 320. 
 
 „ "W., 294. 
 Barton, 351. 
 Bayhall, 304. 
 Beamston, 331. 
 Beccles, 150. 
 Beckenham, 320. 
 Bekesbourne, 231, 348,401. 
 Bere, 337. 
 
 Bertrey, 70. 
 Betshanger, 292. 
 Bexley, 234, 381, 402. 
 Bicknors, 190, 202, 292. 
 Bidborough, 98. 
 Bilsington, 22' , 297, 354. 
 Birchington, 136. 
 Bishopsbourne, 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. 
 Brabourne, 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. 
 
TAW. I'. 01' IM.ACKH IN KKNT 
 
 Caldooot, '220. 
 Canterbury, 76, 100, 3(10. 
 Cupel, 319. 
 C(']iliHiii, 98. 
 Clinllbrd's J'luc.o, 391. 
 Charing', 23 1, 331, 307. 
 Charlton, 381. 
 Chart, Kant, 70. 
 
 Mttlo, 256. 
 Chiirtlinni, 70, 203. 
 OhrUlmld, :!,')8, 381. 
 Cheated, 21 '2, 211. 
 Clitmilhurnt, 381. 
 Chevtmiiifr, 33, 110, 211, 211. 
 Chidiii»Hl.<m<\ 98. 
 Cliilliiim, 200. 
 Chillnidoii, 272. 
 ChiHltd,, 100. 
 01 illr, Wort, 18. 
 Onhliiim, 131. 
 
 Kimt Court, 202. 
 Onckriili', 21)7, 321. 
 (!(.lchii(l«rc, 200, 3.11. 
 ( !(iinl)(!H, 202. 
 Cmidwdcii, 2119, 392. 
 Oc,olii% 18, 70. 
 Cowdcii, 98. 
 OowhiH Murnli, -MM. 
 Onuibrnok, 19,1, 392, 397, '101. 
 Orny, St. Mm'}, 229, 302, 397. 
 
 ,, h'out'H, 321. 
 
 „ North, 299, 321. 
 
 „ Paul's, 323. 
 ( 'in ytliiiiiH', 321 . 
 (.'riiiidul, 111. 
 Oudhiuii, 211, 2M, 319. 
 Onxturi, 12.'., 13.0. 
 
 DniiliiirHl., 301. 
 
 Diiln, 231. 
 
 I )ni'l)y'H Omni, 339. 
 
 Diu'cnt,, 132, 319. 
 
 Hartford, 185, 190, 319. 
 
 Jliiviiitfton, 99, 391. 
 
 I Moo, 202, 208, 200. 
 I Minted, 203. 
 Divi-ii, 200. 
 Doddinn'ton, 307. 
 Dnpton, 305. 
 
 KiiNtbi'id^o, 282. 
 Kiwt Homo, 381. 
 KiiHtlin^', 3.11. 
 Kiml 1'i'KHtiin, 305. 
 Kimtry, 20, 70, 108, 2'17. 
 Kiiwl.uro, 200, 219. 
 Kmttwoll, l.'ll, 210, 299. 
 
 Kid bridge, 30-1. 
 
 Kboney, '102, -106. 
 KeoloH, 202, 311. 
 Kgorlon, 397. 
 Eg-garton, 111. 
 Klliani, 170, 3,11. 
 Klnodoy, 193. 
 Klnmtuw, 33.1, •101. 
 Klnothingtoii, 292. 
 Kltlimii, 381. 
 Klvylimd, (1, 229. 
 Kimlirld I'lare, 9H, 301. 
 Krith, 307, 308. 
 KHlhiglinm, 30.1. 
 Kvvoliui'Ht, K. mid W., 98. 
 Kyimfoid, 3,11. 
 Kyllmnio, 30(1. 
 
 Kulkliiini, 78. 
 
 Kruloigh, KiihI,, 18, 70, 213, 247, 
 209. 273, 292. 
 ,, WuHt, 37. 
 I'lirnboroiigh, 202, 339. 
 Kiiniingliuiii, 70, 2'I7. 
 I'Wi'slnim, I 111, 191, 193, 393. 
 iMHlibniinii', 292. 
 KolliHtonc,' 1(1. 
 lord J'hioo, 9K. 
 Kordwieb, M7. 
 l''nXf;ni\ii, 3 1 .1. 
 1'Yeiinliiiin, 202, 339, 375. 
 I'lindnbiiiy, 108, 150, 33H. 
 
MKNTIONKl* IN THIN THKATISK. 
 
 XV11 
 
 KiitiM.d, 317, 
 
 FriltiMnl.ni, 000, 300, 
 Fulliriuik, 3<H) 
 
 Unn\ ini.ui, ss.i 
 Gtiit.m, sou 
 
 l!n\ sum, 301, 
 (!illiitf>luui\, 000, sai 
 
 (i.l.l.l.MI, 10'.'. 
 
 0.i<l<liiif»t<m, ooo, sss 
 G.i.luiorsluim, 70, 30A 
 Uixlslmul, 000 
 ilo<l\>inst«>ii. 337. 
 
 U.l.ullK'MlllI, 337 
 
 li.uv, 003, 3,ss, .170 
 
 liiuiillini'M, 103 
 ifrtiihliMiiis, 101, 
 
 Oi'jiM-iu^ , los, 303. 
 
 Ui:>\ 1-M'iul. ,''0,\ 300 
 
 H.ullow. .SOI, SO.i. -I03. 
 M.il.kni, 37 1 
 HrtlUtij?, 13.S 
 MiiUow, 103 
 Hnlt.ui. 3.S7 
 Hum. 000. 
 Hrtmnnlt. 000. 
 H.iiUlo.iow ni\ -IS 
 H.iwIivn, 10S. -J .ST. .SO l 
 H;Miiij>hr.»,\k, 101. 
 II.-»itioUn1i:iiu, 000 
 tl:ut>. 100, 000, 300. 3-10 
 
 ll;lMUl>>l.l>>ll, '. , !> , .> 
 
 H*iua1i, 010. 
 
 Minomlrtu l\mit, OS, S04 
 H.iw khurst, 70 
 lt:i\\)o>, 07. 
 Hjmiliursl, 10-1 
 
 n^\x).M\, isi. 
 
 M:>\«*. 011,013 
 
 H.\i3..miil\ 300. SOS. 
 Honhuvst, 30-1 
 
 h.-x.v. on, an. 
 
 O.niM, SOA 
 
 llinxhill. 00H. 
 
 l|imili< ('.mil, 300. 
 
 Uo.kon.l.'ii, .'ISO. 
 
 HokiiiK, 000. 
 
 U.illmnlHiiiriK', 70, 133, 317. 
 
 Moo, l.illlo, 300, 
 
 llorsiium.li>i\, I HI , 031, 300, 10.1. 
 
 llorton, Ml, 'J'.)',). 
 
 Umigliitui, '.'00. 
 
 ll.iwliol.l. 100. 
 
 Hull, ;!:)/.. 
 
 llmi(iu(>lU»l.l, 000. 
 
 lliinl.iu, 181. 
 
 Mural, 000, 00S. 
 
 H\llh, 31 S. 
 
 loklmm, -101. 
 l.'kinn, 381. 
 Itlol.l iViul, 30.V 
 Ishlliiini. 310, 
 Ivivlunvli, 3S0. 
 Iu:i.l.\ ;)-.)7. 
 
 K.'llisnij!;, 330. 
 
 l\.nuii-.linj>to«, 207, 301, -104 
 K.'\ usluim, 300. 
 KulhiMok, SSI. 
 Kuij^.lii\> n, Oii l 
 Kiuj>sm:irslt, 301 
 KnijjM.m. 000, 000, ao.V 
 Kif.'li<nig'iM\.\ 30 I. 
 Kiuvkli.ilt, Oil, 010 
 
 l,:lllllx>l'llUVSt, 00S, 
 
 Lrtn^tioi.i, ;s 
 
 l,:ivij;lo\, S.\l, 
 Idiij^wt, 01.1, SOI. SOT 
 
 K<>«, 300. 
 l<v. SSI. 
 1 ,,v,k ;>o. ooo 
 
 l.i\nh:»n, K:ist, IS, 000 
 1 o\ oL-iu.l, 000. 
 1 o\\ inIi.-uh, 1 1 S 
 l.ms.w, 0.^7, 
 
xvm 
 
 TABLE OF PLACES IN KENT 
 
 Lowden, 339. 
 Luddenham, 200, 295. 
 Luddesdon, 202. 
 Lullingstone, 229. 
 Lydd, 301. 
 Lygh, 98. 
 Lympne, 269. 
 Lyminge, 234, 306. 
 
 Maidstone, 76, 234, 367, 405. 
 
 Mailing, 15, 293. 
 
 Maplescombe, 351. 
 
 Marden, 192. 
 
 Maxton, 200, 368. 
 
 Melton, 234. 
 
 Meopham, 15, 18, 33, 70, 78, 125. 
 
 Mere Court, 372. 
 
 Mereworth, 406. 
 
 Midley, 202, 389. 
 
 Milsted, 193. 
 
 Milton, 192, 196. 
 
 Minster, 37, 75, 76, 135, 136, 145. 
 
 Moat (Harty), 102, 199. 
 
 Holland, 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 Sittingbourne, 143, 
 193, 292. 
 
 ,, Bertram, 341. 
 Fee, 341. 
 Newton, 320. 
 Norsted, 328. 
 Northborne, 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. 
 Otterpoole, 396. 
 Overhill Farm, 232. 
 Overland, 404. 
 Overneys, 211. 
 Owlie, 335. 
 Oxenhoath, 228, 355. 
 Oxsted, 355. 
 
 Padlesworth, 202, 208, 397. 
 Palstre, 208. 
 Patrixborne, 354. 
 
 Peckham, East, 18, 70, 117, 269, 
 407. 
 
 West, 225, 406. 
 Pembury, 406. 
 Penshurst, 33, 98, 391. 
 Perry Marsh, 32 1 . 
 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. 
 
 Eeculver, 234. 
 Redleaf, 98. 
 
MENTIONED IN THIS TREATISE. 
 
 XIX 
 
 Rendsley, 98. 
 Bepton, 334. 
 Ripley, 305. 
 River, 227, 266. 
 Rochester, 161. 
 Rodmersham, 260. 
 Rucksley, 98. 
 Rusthall, 95. 
 
 Salt-wood, 234. 
 Sandwich, 20, 70, 147, 247. 
 Sarre, 136. 
 Scotgrove, 370. 
 Seale, 227. 
 Seasalter, 75, 76. 
 Seaton, 227. 
 Sellindge, 339. 
 Sellinge, 397. 
 Sevington, 260, 318. 
 Sexmanshill, 400. 
 Sextries, 256. 
 Shebbertswell, 302. 
 Sheldwich, 257, 304. 
 Shelford, 339. 
 SHllingheld, 200. 
 Sholand, 292. 
 
 Shoreham, 110. 
 
 Shorne, 227. 
 
 Siberstone, 200. 
 
 Sissinghurst, 393. 
 
 Sittingbourne, 193. 
 
 Smallhytbe, 208. 
 
 Snave, 334. 
 
 Snavelees, 334. 
 
 Snodland, 78. 
 
 Sotmere, 349. 
 
 Soutball, 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. 
 
 Starry, 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, 137, 
 
 247. 
 Thorndenn, 18. 
 Thurston, 315. 
 Tillade, 321. 
 Tiuton, 143. 
 Tirlingham, 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. 
 Warehorne, 70, 143, 256. 
 Watringbury, 78, 202, 265, 305. 
 
XX 
 
 TABLE OF PLACES IN KENT, &C. 
 
 ■Wavering, 232. 
 "Well Hall, 381. 
 Wellstreet, 391. 
 Westbere, 401. 
 Westberies, 316. 
 Westerham, 391. 
 Westgate, 234. 
 "Westhalimote, 234. 
 Westwell, 63, 70, 247, 255. 
 Westwood, 299. 
 "Wetherlings, 200. 
 "Wichling, 314. 
 "Wilmington, 233, 345. 
 Wincehurstden, 194. 
 
 Wittersham, 835. 
 Wolverton, 341. 
 Woodchurch, 136. 
 Wood's Court, 303. 
 Woolwich, 381. 
 Wormsell, 315. 
 Wotton, 202, 394. 
 Wrensted, 314. 
 Wrotiam, 131, 234. 
 
 Yaldham, 319. 
 Yalding, 184, 304, 315, 337. 
 Yokes Court, 320. 
 ,, Place, 226. 
 
THE TENURES OF KENT. 
 
 CHAPTER I. 
 The Limits of Gavelkind in Kent. 
 
 Uncertainty 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 difficulty caused 
 by uncertainty as to Tenure. — Much land supposed wrongly to be 
 Gavelkind. — No lapse of time can alter its nature. — General rules as 
 to Kentish Tenures. — "What was not Gavelkind at the Conquest cannot 
 be now dealt with as such. — Exception to this rule. — "What was 
 Gavelkind at the Conquest i is so now. — Presumption that prima 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. — Un- 
 certainty as to Tenure now removed by the publication of the records. 
 — Distinction between superior and inferior Tenures. — Spiritual Tenure 
 of free alms or Francalmoigne. — Military Tenures. — Barony. — Knight- 
 service. — Serjeanty. — Castleguard. — Military Tenants of Ancient De- 
 mesne. — Inferior Tenures. — Ancient Socage or Gavelkind. — Socage 
 which is not Gavelkind. — Copyhold. — Petty Serjeanty. — 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. — Demesne lands. — Advowsons. — Some are Gavel- 
 kind. — Manors without demesne. 
 
 HPHEKE 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 have been written about 
 the former, and hardly anything about the latter. In mosfc 
 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 Eeport 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, until 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 Parliamentary Com- 
 
i.] * The Limits of Gavelkind in Kent. 3 
 
 missioners, I have no doubt many more such questions will be 
 found to arise." 
 
 "Are there not some estates in Kent that never have been 
 .gavelkind ; that have been held in eapite ?" 
 
 " 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 in eapite, 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 facility now which never ex- 
 isted before for solving them with readiness. 
 
 Tor the tenure of every estate in the county is recorded 
 so exactly in a series of records from the Conquest to 
 modern 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 
 
4 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 Eolls, (the Calendarium Genealogicum, 
 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 
 JSTevil, 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 th<f 
 
i.] The 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 VIII., 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 
 unnecessary, 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 
 
6 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 Church, 
 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 seen 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 Robin- 
 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.J 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 a ." 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 and 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. 
 
 a 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, and 
 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- 
 ral 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. 
 
I.] The Limits of Gavelkind in Kent. 
 
 A few sentences will explain the principle, of which 
 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 gavelkind, while another descends to the 
 eldest son. 
 
 Taking a period shortly 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 farmers and 
 husbandmen. We are now not considering folk-lands, 
 ancient boroughs, socage land leased to the Church, &c, 
 but only considering the broad and general division of the 
 soil. About one-third was allodial, and the rest socage. 
 
 All the socage was "gavel-land," in the sense of free- 
 hold, owing rent, and service, but only the superior villani 
 or ceorls had the privileges 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 demesnes (bordarii) received these pri- 
 vileges. 
 
 In the eleventh century the system of manors was 
 borrowed, probably from the Normans ; 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 allodium, and the tenemental 
 portions of all the manors with the gavel-land or gafol- 
 land of which we spoke. 
 
 So that at the Conquest one-third of the cultivated lands 
 
io 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 maybe 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 alms, 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 shall 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.] The 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 feudal 
 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 gavelkind. 
 
 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 modern 
 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 orginally socage. Where the manor and 
 demesnes were not gavelkind, the advowson originally 
 appendant to them cannot now be partible in descent. 
 
 The lord's waste in each manner is of the same tenure 
 as his demesnes. Therefore the portion kept in almost 
 all the manors of Kent for the roads and the commons 
 has never been gavelkind, whether now approved or en- 
 closed, or still treated as waste. None of the houses and 
 gardens on the waste of the manors given at first in 
 knight-service or free alms are gavelkind. 
 
 But there are manors, or reputed manors, created before 
 the statute Quia Emptores, which were carved out in early 
 times from the "ancient socage" portions of superior 
 manors held by a higher tenure. Such are gavelkind now, 
 with their demesnes, advowsons, and other appurtenances. 
 
 It will also be found that some manors are described 
 in "Domesday Book" as having at that time no demesne. 
 
12 The Tenures of Kent. [chap. i. 
 
 In these cases 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. 
 
CHAPTEK II. 
 
 Tenures in Kent before the Conquest. 
 
 The ancient laws of real property ; Crownland, Folkland, Bookland. — 
 Kentish manors held in Francalmoigne. — Form of the charters of 
 donation. — The Trinotia Necessitas, — Queen Edith's gift to Christ- 
 church. — Franchises. — Sac and Soc. — Military services. — Three classes 
 of Thanes. — Allodial tenants. — Drengs or Threngs; tenure of their 
 lands. 
 
 We have seen that immediately before the Norman Con- 
 quest Kent was divided between the king, the Church and 
 the great thanes. Their estates were further subdivided 
 into the demesnes which remained free, 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. 
 In earlier times a different principle prevailed; the land 
 had then been broadly divided into crownland, folkland, 
 and bookland a . 
 
 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 scrip ti auctoritate, 
 quod Bookland vocabant, vel populi testimonio, quod Folkland, dixere." — 
 (Spelm., Gloss., ' Boelani.') 
 
14 The 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 b . 
 
 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, 
 
 * Heniing, hounds, 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 KemWe, freemen of the shire, bv the king and his council t. This 
 Codex Di- . '. J ° . ' . 
 
 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 "book" or 
 
 deed, but in common use it meant all lands aliened in fee, 
 
 whether by a formal deed, or by the symbolical delivery 
 
 j steph. of a rod, a turf, or a horn ±. It might be alienable or not. 
 
 Blacks.!. ° ' 
 
 501. 
 
 b Allen, " Rise of the Prerogative," 142. In this explanation Hallam, 
 Palgrave, Thorpe, Spence, and Kemble 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, Gav. 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 c . 
 
 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 ™°^ mn 
 to the monks of Christchurch, by which many of the lands Gav. 112. 
 of the cathedral are now held, contains, "the licence and 
 consent of the king, attested by the bishops and nobles j." t Kembie, 
 
 o> " *■ Cod. Dipl. 
 
 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 i. $ s P elm - 
 
 . Engl. 
 
 In the hands of a layman it was alienable inter vivos and Works, ii. 
 
 • i, n j 19 j Kem - 
 
 by devise 4 , though the devise was supposed to be allowed bie.Angio- 
 
 Sax. in 
 England. 
 
 Laws of Alfred, 37, tit. Boc-launde; Spelm., Glossary; Somner, 
 Gav., 87 ; Kemble, Codex Diplomaticus, i. 30. 
 
 d As 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 
 
1 6 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 e . 
 
 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 
 Laws of lives, or in a species of entail male, in which case the 
 i45 Ut °' c ' 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 Christcburch f . 
 
 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. 
 
 6 Heriots were first mentioned in the reign of Edgar, and first regu- 
 lated in that of Canute. 2 31. 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." Steph. Bl. i. 628. 
 
 f Dart, Hist. Canterbury Cathedral, App. i. ; Cotton MSB., Vitellius, 
 D. 7; Somn., Gav. 12, 13, App. xxii. ; Domesday, 59 h, 72; Heming, 
 Chart. 248. 
 
ii.] Tenures in Kent before 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 : " Francalmoigne, 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. 
 
 . , 94 b. 
 
 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 Ucclesice, 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 t g . cod. Dipi. 
 
 i. 9. 
 
 e An example of the simpler kind of deed is found in Thorn {Becem 
 Scriptores, 2225) : " Ego Wulfstanus cognomine Wild Priest, annuente 
 domino meo Ardiknuto, ooneedo ecclesise Christi in Dorobernia terrain 
 patrimonii mei nomine Twrroch." Another of a more formal kind is 
 given by Heming. It was a deed of Athelstane dated a.b. 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 he 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, 
 &c, three things only excepted, viz. freedom from repairing bridges, 
 roads, and castles, and from repelling an invader." — (Kerning, Liber -de 
 redditibus Eccles. Wigorn., Cott. MSS., Tiber, 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 Christehureh, by 
 Queen Eadgifii, 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 Diplomaticus. It is confirmed 
 by her son King Ethelbert and his witanagemote h . 
 
 No set form, as has been said, was used in these deeds, 
 "but only honest and perspicuous words to express the 
 
 b After giving a long account of her troubles respecting the possession 
 of these lands, the Queen proceeds thus: "Anno incarnationis 961, Ego 
 Eadgyva regina et mater Edmundi et Eadredi regum pro salute animse 
 meee concedo Ecclesia? Christi in Dorobernia monachis ibidem Deo ser- 
 vientibus has terras Meapeham CuKnges Lenham Pecham Fernleigh Muneoe- 
 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 
 omnes terras meas et libros terrarum (land-books or title-deeds) propria 
 manu mea posui super altare Christi qum posita est in Dorobernia. Si 
 quis," &c. Confirmed by Ethelred, &c. (Cod. Dipl. 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 : — 
 
 " ©bitlj i\t goob (jaten anb noble mother 
 ®o ®%Jsiane ibmitttb anb €breb 
 Jiings of (Bnglanb, eteg eadj after oijjer, 
 fo Christ's (Ejjttwjj of Catvierlrarg biir gifrt inbeeb 
 Hlonkton anb ffijjornbenn, % monks %« fo fab-, 
 Pejjjram, €hbz, &aialingt, ©sierlanb, 
 fasifarlegjj anb ^tn^Rm, as toe hdubt 
 In tfte gear MMM- 
 ®i Christ's incarnation." — (Buncombe, Bescr. 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 Thorndenn is 
 wrongly attributed to Queen Edith. They were given a century earlier, 
 by Offa, to Christehureh, in free alms. 
 
ii. J 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 hare come works, 
 down to us are grants " in puram liberam et perpetuam 23 ' 
 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 \ + Kembie, 
 
 The booklands of the Church were exempt from all;_° 6 / ip " 
 services, except the Trinoda Necessitas J, (or, as it was j Kembie, 
 variously called, labor communis, onus commune, generate K \{^ ip ' 
 incommodum, 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 § \ § Step i,. 
 
 Elackst. i. 
 228 • Spl- 
 
 1 Speiman gives one of them at length, beginning "Ego Edgar totius den Janus 
 Britannise Basileus," &c, (Concilia, i. 443). The others are taken from i. 42; 
 the Chronicle of the false Ingulf, now admitted to be a forgery of a later . r ■ os' 
 date, though apparently Savile and Speiman 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 Erancis 
 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," 
 
 vol. ii. 
 
 k Speiman curiously enough takes exception to any tenure being 
 perfectly free when the Trinoda Necessitas was due from the land, 
 forgetting that it was from all alike. "The deed maketh the land to 
 be given in francalmoigne, and yet sheweth that they were tied to ex- 
 pedition against the foe, building of bridges, &c, yea, and calleth it 
 notwithstanding puram eleemosynam, whereas though in libera eleemosynd 
 
 c2 
 
2o The Tenures of Kent. [chap. 
 
 " A grant of land to the Church, saving only the three 
 •Sew. Tit. general' duties, was ipso facto a grant in francalmoigne * ; 
 
 of Honour, . 
 
 697 j Kni. and the absence of such a saving clause has been con- 
 Edw. in. sidered by good authorities to be a mark of forgery in 
 
 25; Fitz. , „ 
 
 Assize, every case 1 ." 
 
 445 ' 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 m . 
 
 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 libera eleemosynd is void, (Burn's Eccl. Law, 232; Eitzh. 
 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. 
 
 1 Lingard, Hist, of Anglo-Saxon Church, i. 244 ; Kemble, Codex 
 Diplom., 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 Epist. ad Egbertum, 309; Kemble, Codex Diplom., 
 i. 161 ; Lingard, Engl. Hist., i. 243; Leland'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.) 
 
 m King Ethelbald gave it in these words : " Manerium de Adesham ad 
 cibum monachorum cum campis pascuis silvis, &c. liberum ab omnibus 
 secularibus servitiis et flscali tributo, exceptis istis tribus consuetudinibus, 
 expeditione, pontis arcisve constructione, id est, communi labore de quo 
 nullus excipiebatur." (Hasted, iii. 670; Sandys, Consuet. Kanciee, 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 be/ore 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 n *. * Sew. 
 
 ° Titles of 
 
 In the same way the monks of Chnstchurch were Hon., 678 ; 
 
 Fitz. As- 
 bound to contribute to the repair of Eochester Bridge -\, size, 445. 
 
 and when their monastery was dissolved, and their lands pe^mC**' 
 
 to a great extent given to the new cathedral of Canter- 382— 39 °- 
 
 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 liberam puram et perpetuam eleemo- 
 
 synam °)." 
 
 In many instances, during the reign of Edward the 
 
 Confessor, and almost universally during the reigns of 
 
 the early Norman kings $, the charters contain a full form jKemMe, 
 
 of words, conferring upon the donees in francalmoigne the ;., p'ref. 
 
 franchises of territorial jurisdiction, and of measuring and introd. to' 
 
 imposing the fines appropriate to different crimes. The ;. 275— ay ' 
 
 standard for these fines appears to have been fixed once 286 ' 
 
 the Trinoda Necessitas, now in the library of St. John's College, Cam- 
 bridge, and quoted in the Monasticon, 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. 
 Kemble, Cod. Dip., i. 43; Hickes' Dissert., 66 ; Archaologia, xviii. 49. 
 
 " Knivet, 44 Edw. III., 25 a. 
 
 Monasticon, vol. L, 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. 
 
22 The Tenures of Kent. [chap. 
 
 *Lin g . for all by Canute*, who consolidated the codes of law, 
 i. 2I2; IS- which before had differed in various parts of England. 
 GaT°8o. 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 
 •f-Kemb. express exactly what was intended to be given f. Ac- 
 i.44. Ip ' cordingly from this time we find in full use the well- 
 known form of words, sac and socn, toll, team, and in- 
 fangtheof, which the Normans were always careful to 
 employ even while expressing their ignorance of the 
 jEot. Car- exact meaning to be given to the words J. These fran- 
 intr. 37, chises, being fragments of the royal prerogative, could not 
 in., mis. 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's home to every man's door§," by constituting as many 
 
 m. 372.'' 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 H A U ,'ii. Jurisdiction was usually given by the words soc, sac, Sjc, 
 
 Ellis, 
 
 Introd. 
 
 quoted above, the meanings of which have been a fruit- 
 ner Autf" ^ u * source °^ dispute among antiquarians || ; the numerous 
 Canterb. other names of privileges, not so generally recited, re- 
 
II.] Tenures in Kent before the Conquest. 2 3 
 
 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 of 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 Be 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 p *. * Hast. i. 
 
 Sac is a less general word, and means the right of im- 
 posing fines for offences committed within the lordship q . 
 
 p Soc was the right " aver fraunehe court de ses hommes." (MS. quoted 
 Somner, 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. 
 
 1 Sac has been rendered by Us, soc by investigate. 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 
 soc" corresponds to the later expression, "lord of a manor with court- 
 
 258. 
 
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 r *. 
 
 st. Aug. Infangtheof was the right of trying a thief caught 
 
 203°o U ' 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 (withernam), 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; Braoton, iv. 112; Ellis, Introd. to 
 Domesday, i. 175.) 
 
 ' " Theme (sometimes written ' theame ' corruptly) is an old Saxon 
 word signifying 'potestatem in nativis sive villanis cum eorum sequelis 
 bonis et catallis.' But teame (sometimes also corruptly written ' theame') 
 is of another signification ; for it is also an old Saxon word, and signineth 
 'where a man cannot produce his warrant of that which he bought 
 according to his voucher.' " (Co. litt., 116 a.) 
 
ii.] 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. 
 
 . Hist. Engl. 
 
 among other proofs by the fact that the JNorman writers i. 352. 
 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 
 
 8 Ellis, Introd.,i. 275— 286; Kemble, Cod. Dip., i. Pref. xliv.; Somner, 
 Gav., 133; Antiq. of Cant., ii. 103; Thorn's Chronicle, 2231; Eleta, i. 
 47; Steph. Blackst., iii. 148; Lambarde's Perambulation, 224; Ay- 
 loffe's 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 fhegns quot eis concessit pater meus;" 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. xx. 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 
 
 * Eiiis, as vassals of a lord u *. 
 
 Domt'day, Without discussing further the unripe feudalism of the 
 53 Saxons, in which almost all the elements of the perfect 
 
 Hallam, 
 
 147, 
 
 ■ A - *• 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 
 + Co. litt. of tenants by grand serjeanty f. 
 
 Eiiis, a; 2. In the second were the medial thanes (called also 
 introd. jJieoden, or thaini mediocres), representing according to 
 X Rapin, some the Norman vavasours J, or more properly the lords 
 
 i. 150. 
 
 § Co. litt. of manors §. 
 
 Domesda 1 ' ^' ^ n ^ a,e third, comprehending the smaller gentry, were 
 
 iiiustr. the lesser thanes, holding like the preceding classes by 
 
 a free allodial tenure *. They owed no rent or service for 
 
 u 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. 
 64 a (1), 76 b, 83 a ; 3 Co. 25, and Preface ; 6 Co. 75 ; 8 Co. 163, 171 ; 
 Hale, Common Law, c. v. note H; Spelman, Glossary, Teudum;' 
 Hallam, M. A., ii. 296; Leges Ina, x. 23 ; Somner, Gav., 210. 
 
 1 They were also called variously drenchs, drengs, threngs, and in the 
 Danish counties, young-men. 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. 2 7 
 
 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 
 set of comites, who were the ' companions ' of the greater 
 nobles y , as well as those ceorls or yeomen who acquired 
 the status 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 Christchurch, and 
 the canonry of St. Martin at Dover, having in these cases 
 alienated his " power over the thanes on their land z ." 
 
 of the king, but their tenure, though in some respects restricted, was cer- 
 tainly allodial. {Leges In®, 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." 
 
 1 " Has forisfacturas habet rex super omnes allodiarios totius comitates 
 Kent et super homines eorum." 
 
 "In Cantia quando moritur allodiarius Eex inde habet relevationem 
 terrse excepta terra, S. Trinitatis et S. Augustini et S. Martini, &c." 
 
 The well-known fragment of the law, ascribed to Athelstane, but pro- 
 bably of an earlier date, which shews how a yeoman might become a lesser 
 
28 The Tenures of Kent [chap. ii. 
 
 All the free lands of Kent were divided between the 
 Church, the king, and the great thanes or " peers of Kent." 
 Under these last, different 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 is 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, runs in modern 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 full five 
 hydes of his own land, a church, a hell-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 hecame 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.) 
 
CHAPTEK III. 
 
 Gavelkind. 
 
 Tenure of the yeomen and rustics. — Gavel-land. — Eents and services due 
 to the lord. — Many varieties of Socage. —Customs of the Kentish Soc- 
 men. — Incidents of their Tenure. — Personal freedom. — Alienation inter 
 vivos. — 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 
 rustics. 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 JYeeessitas, 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. litt. 
 ad gablum posita (the most usual expression) is ' land let 
 out for rent.' In the latitude of the word it means be- 
 sides all ' censual' 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 censual or 
 rented land (by rent-service) was never questioned till 
 * Somner, within our fathers' memories a *." 
 
 Gav.xv.41. 
 
 t Bob. 3 ; In this interpretation all modern Kentish writers agree f, 
 Lambarde,' the name having only become peculiar to this county when 
 Halted, i.J socage in the rest of England had been modified to suit 
 
 Introd. fa e new g y S ^ emt rpkg con f us j on ^{q^ h as ar i sen f rom 
 
 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 
 
 I Kembie, change the nature of socage J ; in a like manner (as will 
 
 En x gia"d, be Seen later in a claa P ter 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 rusticorum, gablum et consuetudo," and " gablatores" are mentioned 
 (Kelham, Domesd. Illustr., 218). It is well described in Wilkins' Gloss., 
 404. After an account of free or thaneland, gavelkind is defined to bo 
 " censualem, tributariam, reditui annuo coterisque prEcdiorum rusticorum 
 obnoxiam ac Saxonum gafol-land rcspondentem do qua in fosdero Aluredi 
 et Guthruni < butan thscm ceorlo the on gafol-land sit,' i.e. pneter rusticum 
 qui in terra ccsa manet." (Treaty of Alfred, c. 2; Lambarde, Archaion, 
 xlv., c. 2.) 
 
in.] Gavelkind. 3 1 
 
 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 predial serfs for several reigns through- 
 out England, and in Kent their freedom was never im- 
 paired b . 
 
 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 * Co. utt. 
 
 86 a. 
 
 b <C 
 
 ' Yilliens stmt cultivers de fiefs demorants en villages uplandes, car 
 de vill est 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 Conquestu liberi homines qui libere tenuerunt per libera servitia vel 
 per liberas consuetudines : et quum per potentiores ejecti essent, post- 
 modum reversi receperunt eadem tenementa sua tenenda 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- 
 narum, 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 c . 
 
 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, neat-land, 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 d , by which the reputed manor of 
 Brockley, near Greenwich, was granted by Michael Turn- 
 
 c Rotuli Cartarum, Introd. ; Wright. Tenures, 47 ; Dalrymple, Feudal 
 Property, 9; Hallam, M.A., ii. 294; Spelman, Posth. 38. 
 
 d 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., Ifonast., ii. 640 ; Hast, 
 i. 356.) 
 
ni.J 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- 
 ing his messages, and the like. It corresponds to the later 
 terms fief de roturier, or "ploughman's fee," used in Kent 
 as synonyms of gavelkind e . 
 
 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 regular gavel-men are distinguished 
 from them not only in the records of Penshurst and 
 Chevening manors, but in those of Mepham -J - , and in the t Somn., 
 " Eochester Custumal," &c. f App ' x "' 
 
 Prom 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 
 
 e Leges In®, c. 19 ; Kemble, "Anglo-Saxons in England," vol. i. 323; 
 Somner, Gav. 114; Lamb., Peramb., 545. Mectitudines singularum per- 
 sona/rum. 
 
 { A good example of the difference between inland and demesne is 
 found in the Harleian MSB., 1708. f. 15 : " De in-lania in Chels in do- 
 minium convertenda:" 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 
 
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 
 
 DeHem"' Abbot of St Augustine's in Thorn's Chronicle *). 
 
 Script. 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 differ- 
 ence is expressed in the old names : ben-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 g .' 
 
 Both inland and outland are included in the socage 
 tenements or villenagia, as opposed to the demesnes or 
 dominica h . 
 
 s Gavel-erth : Account-roll of Reculver manor, 29 E. 1 ; Somn., Gav., 
 17; Custumal of Gillingham. Benerth: Co. litt. 86 a; Glanville, viii. c. 3 ; 
 Register of Ch. Ch. ; Harleian MSS., 1006; CustumaleRoffen.se. Gavel- 
 rip : Custumal of Westwell in Somn., p. 19 ; Do. of Whitstaple, ibid.; 
 Spelman, Glossary, Benerth, Bid-rip. 
 
 h 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 villenagium," 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 1 : 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 trod.'i.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- 
 sumes, i.e. fines, or sums paid down on the execution of 
 the deed f." iim.G2. 
 
 After the Conquest, when the use of written deeds be- 
 came more general, gavelkind passed by deed as well as 
 other tenements j . One of the most ancient examples % of t Gaveik., 
 
 App. 1. 
 
 labourers, who held portions of it at the lord's will. (Bract. 4, tr. 3 ; 
 Eleta, 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. 
 
 1 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 terrain de Dene in gcwellcenie Black- 
 manno et Ethelredo filiis Brithmari, a.d. 1043." (Hearne, Heliquice 
 Sprottiance.) 
 
 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 some 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. * 
 
 Topogr. 
 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. Eents began 
 to be paid in money soon after the Conquest, and the 
 reign of Bichard II. is generally given as the date for 
 t Co. int. 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 accompt-rolls of the various manors, 
 or from the registers and archives of the cathedrals and 
 
in.] Gavelkind. 37 
 
 monasteries preserved in the British Museum, the State 
 Paper Office, and some of the cathedral registries. 
 
 The services were of many kinds : among them we can 
 distinguish those of ploughing, 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, 
 
 . . J ' Anglo-Sax. 
 
 distinguished by different names, according to the nature 1 323. 
 of the produce in which they were originally paid. At 
 the time of the Conquest many of them were turned into 
 money payments -j", and were then called Penny-gavel, ortEiiis, 
 gdblum denariorum ; of this kind were the rents reserved Domesday, 
 in the ancient deeds just cited. Many, however, con- 
 tinued to be paid in kind, e.g. in cocks and hens, oats, 
 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 k . 
 
 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- 
 
 k See the Custumals of Thanet, Adisham, Reculver, Gillingham, Mai- 
 ling, Chertham, "West Farleigh, "Westwell, &c, cited by Somner, c. i. 
 The freeholders of Minster in Thanet still pay 6d. an acre for corn-gcmel. 
 (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. Tor black-mail, or rent 
 in kind, still used in Jersey, see Somner, 34 ; "Wright, Tenures, " Socage," 
 2 Inst. 19, 43. Money payments were called blanch-mail or white-ferm, 
 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 
 affairs of the district; it seems indeed from one record 
 that the gavelkind tenants of Kent were consulted in the 
 affairs 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 m ." 
 
 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. 
 
 1 "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 
 the 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 Conquest e en le Conquest e totes houres jeskes 
 en 9a." — ( Custumal of Kent. ) 
 
in.] Gavelkind. 39 
 
 Besides these, there were semi-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 (bordarii, 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 un- 
 altered. 
 
 1. Alienation. 
 
 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 Eeclesia CJvristi, Canterb. ; Cotton. MSS., Vitell. A. v. ; Somner", 
 Gay., 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. "VI. 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, G-av., 88.) In general, donations to the Church, 
 if made by the king, required the sanction of the great council ; if made 
 by a subject, that of the king or other lord. 
 
4<d 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 p . 
 
 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' 1 . It must be remembered 
 that a will was then in its nature precative, 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 prsedictus 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 tamen 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 a/pud, Scotos, c. 100. 
 
 q " Emptiones vel acquisitiones suas det cui magis velit. Terrain 
 autem quam ei parentes dederunt non mittat extra cognationem suam." 
 (Wilkins, Leges, 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 suse donare voluerit tunc 
 quidem hoc ei licet ; sed non totum questum : non potest filium suum hae- 
 redem exhseredare." (lib. vii. c. i.) 
 
in. J 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- * Gianv. 
 viding the goods of intestates r . Magn. c'h'., 
 
 A tenant in gavelkind attained his majority at fifteen 2 ins". 33 j 
 years, a year later than tenants in inferior kinds of soc- Gav.°t)6. 
 age ; in many boroughs a much earlier age was fixed by 
 local custom. 
 
 2. Descent. 
 
 The partition of lands in descent between all the 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 Prance f, as well as in other parts t Bstaw. 
 
 " . de St. 
 
 of Europe. There was, however, one peculiarity of the old Louis, 
 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 primogeniture being quite un- 
 known to the Saxons in lands of this tenure, so that all 
 the heirs of equal degree took as parceners, the males being 
 preferred to the females ±. t Robins., 
 
 x Gav., u. vi. 
 
 (Wilson's 
 note, 2). 
 1 "Seient les chateus de gavelekendeys parties en treis apres le exe- 
 quies e les dettes rendues, si il y eit issue mulier {legitimate) en vye, 
 issy que la mort {the deceased) eyt la une partie e les fitz e les filles 
 mulier lautre partie, e la femme en vye la tierce partie." 
 
 " Et si nul issue mulier en vye ne seit, eit la mort la meitie et la femme 
 en vye lautre meytie." (Kentish Custumal.) 
 
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-hench 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 purchased, 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, the chief room was reserved as "the widow's cham- 
 ber;" but in gavelkind lands she kept one full moiety 
 during her life, chastity, and widowhood. Thus it is said in 
 the Kentish Custumal, " if such tenant 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 age (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." s 
 
 s " Et si mil tiel tenant en gavylekend meurt e eit femme que survive, 
 seit cele femme meintenant dou-we de la meitie des tenementz dont son. 
 baroun morust seisi per les heirs si il seient de age ou per les seigneurs si 
 les heirs ne seient pas de age, issi que ele eit la meitie de celes terres 
 
in. J 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 ) EngleUrre) 
 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-lancus) in old cases *. 
 
 The old law of socage, still retained in Kent, gave to 
 the 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 u ." 
 5. Escheat. 
 Although the severity of the feudal law respecting es- 
 
 e tenementz a tener taut come ele se tyent veuve ou de enfanter seit 
 atteint per le auncienne usage," &c. 
 
 * De Bending v. Prior of Christchurch, infra. 
 
 " " E clament auxi que homme que prend femme, que eit heritage de 
 gavylekend, e la femme murge avant luy, eit le baroun le meite de oeles 
 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 
 ou 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 gavelet, 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 
 for a distress upon the land; if none were found after 
 three 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. 
 
CHA.PTEK IV. 
 
 Gavelkind. 
 
 The word ' Gavelkind' used in different 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 trie 
 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 
 the tenure of socage according 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 alone strictly 
 correct. 
 
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. Before the Conquest the lands of England were 
 
 either allodial or tributary (gavelkind), either free or 
 
 encumbered 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 
 
 » Alfred's rustic, " the churl who on gavel-land lived *," on gaining 
 
 withGuth- an estate of his own, sufficiently large to maintain one 
 
 kins' Anc. soldier for the state, became noble, and had all the rights 
 
 aws. o £ a we i]_b orn 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, Icen-land (lent-land), i.e. lent for rent in money 
 or services ". 
 
 a A good description of these rents and services was extracted by 
 Kemble (Anglo-Sax. in Eng., i. 323), from the valuable document 
 called Eectitudines Singularum Personarum. 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. 
 
 II. 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 differs 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. ; lie 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. 
 lings, watch for deer, build and enclose the manor-house, make the roads, 
 pay Church-dues and alms-fees, and go ou 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 
 * Rob. necessarilv comprehended under its name *." 
 
 Gav. 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 by 
 the custom of the country, the lands being held by suit of 
 + Wright's court and fealty, which is a service in its nature certain f. 
 
 Tgihitgs 
 
 214. 2. Littleton J distinguishes between the tenure and its 
 
 t §• 2 65. 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." 
 
 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 
 
 Gav., 37, . 
 
 38,- Kob., the custom is preserved in the record of a case Ass. in 
 
 dys, cons. Com. Kane, 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 consuetudo," &c — 
 
 (Spicer v. Marshall, Ass. in Com. Kane, 2 Eich. II.) 
 
 4. There are also many cases extant where gavelkind 
 lands in Kent are merely described in the pleadings as 
 
i v.J 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- *Kob.243. 
 
 ship were allowed, though the land was only pleaded to 
 
 be liberum tenementum et in socagio. Socage and gavelkind 
 
 are often used as synonyms in reference to Kentish lands, 
 
 e.g. " Terrse quae tenentur in socasio vel gavelikende t ;" t°:! ose „ 
 
 x o o 17 Eolls 37 
 
 and Bracton, speaking of Isabel de GraveneVs case in the Hen - m - 
 reign of Henry II., declares that the custom of Kent is 
 for the widows to have free-bench in socage lands (in 
 terris sochnannorum) during their lives and chastity, and 
 after a few sentences speaks of this free-bench "in socage" 
 as Dos de Gavelkind!. Besides these instances, which t Lib. iv. 
 
 + , ' tract. 6, 
 
 might be indefinitely multiplied, we find a constant uni- <-•■ 13, 15. 
 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.53. 
 
 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- 
 kind 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 b ." 
 
 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 II. 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. . 1,1 
 
 14 a ; tion, we see that there would have been no need to notice 
 Black! i. specially this partibility of the land in Kent, except on 
 piowd. 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 
 'flnfub; curiously mingled with a custom* of borough-English, (see 
 L. a 257 C ' P osi > Chapter on Burgage,) and (2.) In the reign of Ed- 
 ward I., in whose twenty-first year the body of Kentish 
 usages, as we now possess them, was formally allowed, the 
 partition of ordinary socage lands had already become ob- 
 
 b " Ces sount les usages . . . les ques le communaute de Kent cleiment 
 aver en tenementz de gauylekende e en gentz gauilekendeys." 
 
 Glanvil 
 vii. c. 3. 
 
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. 
 Cotton, 1 Sid. 138) to affect 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 
 possible as to whether indeed gavelkind were a Kentish 
 tenure or a local custom of partibility d . It is also not 
 
 c A clear explanation of this point is given by "Wright: "The partible 
 quality of most of the lands in Kent was not a particular or proper effect 
 of gavelkind tenure ; and how particular soever the continuance of this 
 course of descent may appear to us at this day, yet if we consider gavel- 
 kind as a species of socage tenure, and that all tenures by socage, or of the 
 nature of socage, were anciently in point of succession divisible, it will 
 appear much more extraordinary that all other counties should depart 
 from this the most ancient and natural course, than that this particular 
 county should retain it." — {Tenures, 214.) 
 
 d Somner has some quaint reasoning on this: "That very improper 
 and incongruous question was occasioned by the want of a distinction be- 
 
 e2 
 
545 
 
 52 The Tenures 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 different 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"). 
 •Peramb. Thus Lambarde* thought that these customs were im- 
 ported by Odo of Bayeux from the Grand Coustumier 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 e ; whereas the customs 
 
 tween the genus and the speoies, which through inadvertency 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. 
 
 e See the remains of his chronicle, Reliquia Sprottianee in Hearne's 
 collection, and a discussion of their merits in Somn., Gav., 63 — 82. 
 
1 v -j 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 
 word, 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, bofore 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. , o. 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- 
 kind 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 tlio 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, Usk, Trelleg (in Monmouthshire), 
 and Urchenfield (in Herefordshire), which is evidently bor- 
 rowed from the ancient " custom of Wales." "Urchenfield 
 was a Welsh principality at one time, and its gavelkind is 
 * Pasch. 9, spoken of as Consuetudo Wallensium *. 
 
 El 
 
 Heref. 32; Eound the borders of Kent the tradition of ancient 
 Gav.°u. tenures has remained in many copyholds, where the lands 
 M ' 110 ' 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 
 Lcradon. 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 Eothelay 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 in Dorset |, 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 -J 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 f 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 B . 
 
 For all which reasons the judges, in the Case of Tanistly, 
 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 *. *Rot>. 20. 
 
 By one of the penal statutes against Boman Catholics 
 in Ireland the usage was revived, 2 Anne, c. vi. §. 10, to 
 this extent : it was enacted that the lands of Boman 
 Catholics should be divided among all the sons as in 
 
 ' Eeport on Irish Gavelkind, fol. 49. 
 
 s Although this exclusion of females from taking by descent and in 
 dower were held to he contrary to law, and void as against the nature 
 of fee-simple, it is curious to remark that a similar exclusion of females 
 was allowed] to he 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 Eeb. 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." — (1 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 
 18 Geo. III. o. xlix. §. 1*. 
 
 The name of gavelkind was also used merely to signify 
 partibility in the statute, 34 and 35 lien. VIII. o. xxvi. 
 §§. 91, 12S, respecting Wales. But it is clear that as to 
 this Welsh custom, the name was used in a way unknown 
 before, the Statittnm WaUur, 12 Edw. I., using the more 
 exact expressions of terra partibilis, and Consiiettido )Val- 
 tCo. utt. leiuv'ca ante iw'tata-f. (This statute abolished the "Welsh 
 customs of descent to bastards, and exclusion of wives 
 from dower, as in the Case of Tanislry ; but the partible 
 descent was allowed until 34 and 35 lien. YII1. 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 Bobinson in support of this plain distinction . 
 As Ralph de Colby's 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 arc partible by usage of the country ;" but 
 in this case the custom was alleged only in certain (owns, 
 &c, and therefore it was necessary to shew that tho lands 
 had actually been parted. 
 
 And in a similar question respecting lands at Golfy, it 
 was ruled that "it is not of theso tenements as of tene- 
 ments in gavelkind, for there of common right they aro 
 partible." And in 8 Edw. III., as to an estate in Saxham 
 (Suffolk), it was said, " You cannot draw them out of tho 
 common course of law, if you cannot show between whom 
 the custom was so used, unless you can allogo the usage 
 of the whole country as in gavelkind." 
 
iv.] Gavelkind. 
 
 57 
 
 In the same way Bracton iii. 374, and Fleta vi. c. xvii., 
 draw a distinction between gavelkind and mere partibilitv : 
 " Sicut in gavelkind, vel alibi ubi terra est partibilis ra- 
 tione terras." And Somner says, speaking of the same 
 distinction : — 
 
 " In the vocabulary of the TVelsh we seek the word in vain, 
 as aLso in the Statutum Walliw, 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. Till. 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. Till. c. 26) making mention of this 
 partition, gavelkind is not at all remembered *." * Somner, 
 
 Gar. 54. 
 
 So that we may conclude that this confusion of gavel- 
 kind with partibilitv, 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 h . 
 
 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 synonym 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., 53-3 ; Bob. 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 
 paragioK 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 services. 
 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 tenuemnt in paragio de rege," and 
 similar notices, i. 7, 45, 46, 96, 111 b, 168, 375, &o. 
 
CHAPTER Y. 
 
 The Norman Conquest. 
 
 Introduction 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 Gavel- 
 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 Church-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 
 what is proved to have been then 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 
 
60 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 a , 
 without however losing their distinguishing characteristic, 
 certainty 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 qua in fcedere 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 obnoxia." (Wilkins' Anglo-Sax. 
 Laws.) The Conqueror did not increase or diminish the amount of the 
 lands which were not gavelkind. 
 
V.J The Norman Conquest 61 
 
 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 
 Eichard 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 
 liable for feudal services and duties. 
 
 Though the genuineness of the particular record, a his- 
 tory of the Saxon family of Sharnborne, 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 b . 
 
 b The chief authorities for it are Spelman, Gloss., (title 'Dreng'), and 
 Posth. Treatises ; "Wright, Tenures, 62 ; Somner, 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- 
 day, i. xviii. 
 
62 The Tenures of Kent. [chap. 
 
 * Ord. 
 Vit. ii. 
 
 Much of the country was left in the hands of the old 
 nobility and their dependents, and the Norman writers* 
 dfscacc a1 ' complained that the English had kept the best part. In 
 i. c. 10. ' factj the Conqueror appears to have found that without 
 any great hardship to the mass of landowners, enough land 
 was legally forfeited by what was called the treason of 
 opposing in arms the claim of William, to satisfy the new 
 order of nobility. In course of time fresh 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 Sharborne, et quidam alii 
 qui ejecti fuerunt et terris suis, abierunt ad conquestorem et dixerunt ei, 
 quod nunquam ante conquestum, neo in eonquestum, 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 inquiri per totam Angliam si ita fuit, quod quidem probatum 
 fuit. Propter quod idem rex prsecepit, ut omnes ille qui sic tenuerunt se 
 in pace in forma prsedicta quod ipsi rehaberent omnes terras et domina- 
 tions suas adeo integre et in pace ut unquam habuerunt vel tenuerunt 
 ante conquestum suum, et quod ipsi in posterum vocarentur Drenges." 
 
 c 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 reigu 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 offence 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 B endings 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 Eochester, 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 * a . # La mb., 
 
 The necessity for this action (the Pinenden Plea) shews £|™ m s e 'i. 
 that though the law was in theory unaltered, in practice *™' ^ d " 
 
 "Le Conqueror ne vient pas pour ouster eux qui avoient droiturell 
 possession, mes de ouster eux que de leur tort avoient oecupie ascun terre 
 en disheritance del Roy et son cozonne." — {Early and Middle Ages of 
 England, c. 22 : cf. Sale, C. L., c. 5, passim.) 
 
 d A very full account of the Pinenden Plea -was compiled by Philipot, 
 the Kentish antiquary. It may be seen in the British Museum, Lansd. 
 MSS. 269, a valuable record " of great use for the county of Kent." (MS. 
 note on margin.) 
 
Gav. 191. 
 
 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- 
 Somn. 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 
 
 e "Charta "Willielmi Kegis I mi de restitution ablatorum in Episcopa- 
 tibus et Abbatiis totius Angliss. 
 
 " W. Dei Gratia Rex Anglorum Lanfranco Arehiepiscopo Cantuar. &c. 
 Suisque aliis proceribus regni Angliae salutem. 
 
 " Summonete Vioecomites meos ex meo praecepto, et ex parte mea eis 
 dicite, ut reddant Episcopatibus meis, et Abbatiis totum Dominium, om- 
 nesque dominicas terras quas de Dominio Episcopatuum meorum et Abba- 
 tiarum, Episeopi mei et Abbates eis vel lenitate, vel timore, Tel cupiditate 
 dederunt, vel habere consenserunt, vel ipsi violentia sua, inde abstraxerunt 
 et quod bactenus injuste 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 hanc justitiam imposui, ejusdem querelas fuerit, reddat similiter 
 quod de Dominio Episcopatuum vel Abbatiarum mearum habuit, ne prop- 
 ter illud quod inde aliquis vestrum babebit minus exerceat super meos 
 Vioecomites vel alios quieunque teneant dominium ecclesiarum mearum 
 quod prsecipio."— ( Somner, Gav., App. 191 ; Rymer, Feed., i. 3.) 
 
v.] The Norman Conquest. 65 
 
 after all the rebellions and confiscation, and all the law- 
 suits and appeals to force in order to get a title to land 
 before the Domesday commissioners arrived, it seems that 
 far the larger part of the second class of owners, the gentry, 
 belonged to the old English families. 
 
 It was said 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 reliefs, and to fines for certain offences, 
 payable to the king *. * ems, 
 
 It has been said by some writers that "drengage" didDomesd. 
 not exist in the south of England at all. What is meant 1 ' 
 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. tRedBook 
 
 J ' ofthe 
 
 But the entries in Domesday Book shew that it wasExch.; 
 common in Kent. In the Survey of Canterbury several and 
 mentions are made of Allodiarii and burgesses holding lands Hist. 
 in attodio, which even now pay no socage quit-rents, and have moreiand, 
 not ever been treated as gavelkind. ' 21 " 
 
 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 prier 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 f . 
 
 f As comparatively little has been written about the tenure, it may be 
 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 Eoll, 18 Hen. II., mentions aids paid by the drengs of 
 Northumberland. In the Close Eoll 7 John 2, occurs a precept to 
 seize all the "drengages and theinages 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 ewpite in the 
 reign of Henry III., (Abbrev. 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 
 Eichard I., (ibid., 714). 
 
 In 6 Edw. I., North. 7, (Abbrev. Rot. Orig.,) the king declared that 
 the service was certain and in ewpite, and different from knight-service. 
 It existed in Tyndale a.d. 1292, in Cumberland till a.d. 1305, and is 
 mentioned in the Eoll 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. Prom Dugdale we learn that 
 the 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 Breng ante Conquestum. Tenuit ii. carucatas 
 terras de domino rege in capite, pro tali servicio, de ferrando palfridum 
 domini regis, &c, quotiescunque ad manerium suum de Mansfield ve- 
 nerit." — {Baron. Angl., 118 a. ; Monast. Angl., ii. 598.) 
 
 "In Newton tempore Eegis Edwardi fuerunt v. hidte. Modo sunt 
 ibi vi. Brengs."—(Bomesdag Boole, Berby ; Gale, Consuetudines, 773.) 
 
 In Co. litt. 5 b. they are called " Breuchs, 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*." * Dugd. 
 
 When the division of the revenues was confirmed by -canter- 1 ' 
 Archbishop Lanfranc, it was complained by the monks somner, 
 that he took all the barons and knights, and left them Gav ' App ' 
 only rustics and yeomen f. t Tanner, 
 
 But the monks also retained these thanes or drengs as Monastica, 
 tenants, besides their yeomen and cottagers. Gervase of 
 
 As the monks were to retain their old tenure of franc- chron^' 
 almoigne, it was unnecessary for them under the new |°™ n i23. 
 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 King 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 francalmoigne of the Crown. 
 
 "To their most excellent lord, Henry, by the grace of God 
 King of the English, GL the sub-prior and the monastery of 
 Christ's Church in Canterbury g . . . . 
 
 e " Excell. D n °. Henrico D. G. Anglorum regi Gr. subprior et conventus 
 Eccl* Christi Cantuar. . . . 
 
 "Flebilis et ultra modum afflictus, &c, &o. 
 
 "Qui hanc novitatem non admiretur, quod dominus Archiepiscopus 
 dicit nos debere de eo terras et possessiones nostras tenere? cum jam per 
 quingentos annos et eo amplius, a tempore scilicet magni Theodori, qui 
 terras 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 (soil, from the time of the great 
 Theodoras, 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 pontiffs, 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 pontiffs 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. Dunstan 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 administraverit, quod et 
 chartse Begum et Pontificum plenius attestantur, ex quarum tenore per- 
 spicuum videre est, quod usque ad hsec infffilicitatis tempora Archiepis- 
 copus nihil juris vel dominationis plus habebat in terris Monachorum, 
 quam Monacbi in terra Arohiepisoopi. Et ne super hoc quisquam dubitet 
 proferantur in medium charta S. ^Edwardi Eegis et Sancti Anselmi Ar- 
 chiepiscopi, et alise multa? Regum et Pontificum. Quod autem dicitur 
 Lanfrancum dividisse terras, id est, quod cum Normanni capta Anglia 
 omnium ecclesiarum terras occupassent, Eex "Willielmus ad instantiam 
 Lanfranci, eas resignavit. Lanfrancum verb singulis ecclesiis reddidit 
 quod antea possederant, sibi autem quod antecessorum fuerat suorum 
 retinuit. Quod autem tempore Lanfranci non sit facta terrse divisio, 
 testantur chirographa ante tempora beati Dunstani facta inter Archiepis- 
 copos et monachos de concambiis terrarum multarum; sed et hoc attes- 
 tantur scripta vetustissima quse lingua Anglorum Land-holes, id est, 
 
v. The Norman Conquest 69 
 
 cause in the time of King William there were not yet any knights 
 in England, hut only ' threngs,' 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, 
 
 terrarum libros vocant. Quia vero non erant aclinic tempore Regis 
 "Willielmi milites in Anglia sed Threnges, prsecepit Eex ut de eis milites 
 fierent ad terram defendendam. Fecit autem Lanfrancus Threngos suos 
 milites : Monachi vero non fecerunt, sed de portione sua ducentas libratas 
 terra? dederuiit Archiepiscopo, ut per milites suos terras eorum defenderet, 
 et ut omnia negotia eorum apud Curiam Eomanam suis expensis expe- 
 diret. TJnde adhuc in tota terra Monaohorum nullus miles est, sed in 
 terra Archiepiseopi. Terram autem ducentarum librarum adhuc habent 
 Archipiescopi : pro quibus omnibus valde miramur quod vel talia dicit, 
 vel quod assensum ei praebetis, quod vestra auctoritate et nomine vestro 
 per ministros vestros res et possessiones nostras invadit, cum nihil ad eum 
 spectent, sed nos teneamus post Deum in capite de vobis, sicut et ipse ; 
 quod manifestum est, decedentibus Archiepiscopis, quia terrse eorum sta- 
 tim confiscantur, a seculo autem inauditum est, quod possessiones nostra? 
 conflsoata? fuerint aliquo tempore. Quapropter," &o. — (Somner, Gav., 
 App. xxi. ; and Spelmcm, Gloss., tit. 'Dreng.') 
 
7o The Tenures of Kent. [chap. 
 
 Gav. 123. 
 
 " This book must be preserved with great care, for though 
 
 it seem of little worth, yet it is worth much, and is an 
 
 * somn. 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 11 . 
 
 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 threngs. 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 
 
 h Placita de Quo Warranto, Edw. I. and Edw. II., pp. 325, 367. 
 
 ' It is copied in Dugd. Jfonast. 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 legihle. 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 ( "Westwell), East Chart, Chart, 
 
 Berwick, "Werehorne, Apledore, Mepham, Cooling, Ereningham, Holing- 
 bourne, (East) Earleigh, (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.J The Norman Conquest. ji 
 
 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, scil. " 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* k . There are, however, good reasons * Gloss. 
 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. litt., 
 
 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 Latn- 
 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 
 Nevil, 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 
 in later times among the purely military fees, or among 
 
 k Hearne, "Black Book of the Exchequer," 31. "In the thirteenth 
 century 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 villani, 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 
 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 1 . 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 m ." 
 
 ■ ' See the Domesday Survey of Hereford : " Bex 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 socage, and the most im- 
 portant. 
 
 As to escheat and forfeiture. 
 
 " Gavelkind lands," says Blackstone, " which seems to 
 be the old Saxon tenure, were liable to forfeiture for 
 treason, 17 Edw. IV., st. i. c. 16, but in no case to escheat 
 for felony *." This is going farther than is claimed by * steph. 
 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 : 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 modern Kentish 
 
 lawt n - t Robins. 
 
 bk. ii. c. 4 • 
 
 As to the Kentish custom to devise. Dyer,' 310 j 
 
 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 
 was not quite taken away by 32 and 34 35 Hen. VIII., 
 or by 12 Car. II. c. 24 ; it ceased when the Statute of 
 Frauds enacted, "that all devises or bequests of any lands 
 or tenements deviseable either by force of the statute of 
 wills, or by this statute, or by force of the Custom of Kent, 
 &c, shall be in writing, and signed ," &c, &c. 
 
 n Chapman's Case, Ro. Rep., 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 Ecclesia 
 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. e. 5. There are, 
 however, one or two points not quite cleared up in either of these 
 places. 
 
 p " Et quilz pusent lour terres 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. 
 
T.] 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 gavelkind land shall in every case be 
 divided inter mascidos; 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 q . 
 Over the family 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, 
 &c, to devise lands according to the custom of the 
 
 4 " Si ascun tenant en gavylekende murt et seit inherite de terres e de 
 tenementz, que touz ses fils partent eel heritage per ouele poroioun." — 
 {Kentish Custumal.) 
 
 The custom of the ancient borough of Bristol illustrates this ; it was 
 not lawful to devise any lands or tenements which had descended to the 
 burgess by inheritance. (Lidiard's Case ; Calend. Genealog. ; Esch. Roll, 
 9 Edw. 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 affecting 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 feoffees 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 BEawkhurst, 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, 
 
 r In Canterbury both, the citizens and their wives, notwithstanding 
 covertwe, have a customary power to devise freeholds. (Hast. xii. 612.) 
 
 " Consuetudo civitatis Cantuar. talis est quod quilibet de civitate prs3- 
 dicta potest legare messuagia sua qua? habet in eadem civitate adeo bene 
 sicut 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." — (Rob. 
 ii. c. 5, Wilson's note.) In Assis. in Com. Kane. 4 Eic. 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. 77 
 
 " 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* 8 ." * Somn. 
 
 154. 
 
 Besides this no trace has been found "in the early 
 records of Kentish iters of any one title made under a 
 devise by the general custom of the county, or indeed 
 any footsteps of such a custom V 
 
 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 Athelino;t, a.d. 1015, and of + Somn. 
 
 198 
 
 a thane named Burhtric of Mepham $ were cited at length, j Lam t,. 
 but it is difficult to see what they could have to do with ^g^™ ' 
 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, horses, hawks, hounds, &c, as 
 a heriot to the lord and lady " that this will may stand," 
 and an enumeration of witness.es, Burhtric and Ms wife de- 
 vised to the monks of Bochester two sulings at Denton, 
 
 " 3 Rep. 35 a; 2 Sid. 154. * Wilson, note to Eob. 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 francalmoigne by 
 the deans and chapters of Eochester and Canterbury. 
 
 This curious will u can hardly be relied upon as proving 
 that gavelkind tenants had a customary power of devise. 
 * Lamb. At most it shews that a thane or noble, as Burhtric was *, 
 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 Custumal between inherited and purchased 
 lands of the nature of gavelkind. The decision, however, 
 t Somn. overset the judgment in Halton v. Starthop f, and esta- 
 blished the custom for the future. It was afterwards 
 several times confirmed x . 
 
 u For more minute particulars concerning this will, see the -whole ex- 
 tracted and translated, Lamb., Peramb., 492, 499 ; Registrum Roffense, 
 26, 110; Hickes' Thesaurus; MS. Eeport of Brown and Brooks and 
 Launder and Brooks, cited by Eobinson; Hasted, iii. 358, 472; ii. 369, 
 425, 445; v. 106; cf. Somner, Gav., 85, 198. 
 
 * Arthur v. Bockenham, Fitz-Gib. 233 ; Bunker v. Coke, Salt. 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 sua, 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 Eobinson 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 y . 
 
 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 he 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 to 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 account 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 Ibid. 
 
 564 
 
 (a.) " The next eousinP 
 
 In gavelkind, as in other species of socage, no military 
 
 Arthur v. Bockenham.) For the present law, see 7 "Will. IV. and 1 Viet. 
 c. xxvi. § 24. 
 
 y Wiseman v. Cotton, 1 Sid. 77. 135; Lushington v. Llandaff, 2 New 
 Rep., 491. 
 
80 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 
 
 * Eot. 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, 
 
 c.°5." '"'21 Edw. I. +, that by the custom of gavelkind "the arch- 
 
 wickT bishop might commit to whom he would the custody of 
 
 i^Kaiic ^ e k Q( ty an( i lands of his tenant, being an infant." But 
 
 § Eot. 72. an entry in the same roll § shews that no such custom 
 
 rightly existed, though the archbishops had usurped by 
 
 force the guardianship of certain gavelkind lands, " and 
 
 the jury expressly found that no such wardship ought 
 
 to go to any but the next relations (prozimis 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 *. 
 
 1 "In Orpinton non habet Prior wardam neque maritagium de gavel- 
 kynde." — {Pleas of Quo Wwrr., 7 Edw. I., p. 367. See the Hundred 
 Rolls for Kent, 3 Edw. I., 201, 202, 204, 207, 208, &c.) 
 
 The Custumal 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 peut deseendre, 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 ses amys s'il veut." 
 
 Compare the message of Henry III. to the sheriff of Kent in the 
 Close Rolls : 
 
 " Certum est quod terrarum quae tenentur in socagio vel gavelkind 
 
v.] The Norman Conquest. 81 
 
 .The claim that such guardianships were assignable, 
 is of course contrary to the modern 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. 
 
 (b.) " 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. utt. 
 
 . , 88 b and 
 
 the right of the gavelkind heir, " because he cannot be note. 
 accountable therefor, for he can make no benefit thereof t." t Co. utt. 
 
 . 89 a. 
 
 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 a . 
 
 This guardianship is confined to lands, &c, where the 
 infant is in by descent; though a contrary opinion has 
 been supported J. t Co - i ;t t- 
 
 (c.) " Chargeable to the heir in account.'''' mh,^'!-, 
 
 The action of account would not lie during the nonage i86. g an ' 
 of the infant, but in equity § the infant, by his next friend, § Wilson's 
 
 n. to Rob. 
 ii. u. 3. 
 nulla pertinet ad dominos custodia, sed solummodo ad parentes propin- 
 
 quiores ex ilia parte qui ad sucoessionem hereditatis aspirare non pos- 
 
 BaxA."—(Bot. Glaus., 37 Hen. III., 19.) 
 
 " If the inheritance may descend to the relations of hoth the paternal 
 and maternal lines with a preference only to the former, it seems there 
 cannot he a customary guardian unless the next of blood he a lineal 
 ancestor or of the half-blood." — (Wilson's Note to Rol. Compare now 
 Co. litt., 88 b and note, and the New Inheritance Act, 3 and 4 Will. IV., 
 e. 106.) 
 
 a Hargrave's note to Co. litt., 89 a. He mentions a presentation of 
 an infant one year old being legally allowed. As to whether it would 
 be allowed in equity, 2 Eq. Cas. Ahr. Infant., and the same note. 
 
 G 
 
82 The Tenures of Kent. [chap. 
 
 might sue for an account before the expiration of that 
 
 * 2 Vern. period *. 
 342 - r 
 
 (d.) " Subject to the distress of the lord." 
 t Fitz. It was found in 18 Edw. II. t that the usage and custom 
 
 Avowry, 
 
 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 b . 
 
 As to alienation by an infant in gavelkind. 
 
 Lambarde named three things requisite, in his opinion, 
 for an alienation of this kind : " (a.) 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 
 
 t Peiamb., other manner of assurance t." 
 
 565. 
 
 (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 modern authority of 
 Mr. "Wilson, editor of Eobinson'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, Eobinson 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 Eichard 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. 
 
 b T 
 
v.] The Norman Conquest. 83 
 
 difficulty, that before the passing of Quia Emptores, 
 18 Edw. I., there was no alienation permitted of land 
 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 oi 
 fourth was allowed f, and it seems of a moiety by Magna 70; Gia'nv 
 Charta (i.e. sufficient had to be retained to satisfy the dues r^ rOT ; 
 of the chief lord). There would be no special privilege §• 3 - 
 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. Tottel's 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 % p. 170. 
 omitted in it, respecting the immediate entry by the heir 
 on the lands of afelo 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- 
 suetudines JTancm," (Brit. Mus.,) Arundel MSS. 310. 
 
 There are many copies of the Custumal extant, soil. Lambarde's copy, 
 printed in the "Perambulation of Kent," which has been received as 
 legal evidence, Launder v. Broolcs, Cro. Car., 562 ; Tottel's copy, printed 
 in " 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 
 
 G2 
 
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 at full age 
 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. 
 
 (b.) " That he have recompense for it." 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 u doner ou vender" but the other and 
 more usual reading, " doner et vender" {dare, vendere) is 
 believed to be correct. 
 
 " And," says Lambarde, " these words in the copulative, 
 
 for so they be in deed, though the printed book (Tottel's 
 
 edition) have them disjunctively, do of necessity imply 
 
 •Peramb., a recompense*." And in the second place Eobinson no- 
 566. . 1 , r 
 
 need 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 traversed 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 Lansdown library, Lunsd. MSS., 311; "one in MS. is in the 
 King's Eemembranoer'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. J The Norman Conquest. 85 
 
 posed to the idea that the custom permits the infant to 
 aliene without recompense. 
 
 (c.) " With livery of seisin by 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 d *. * 21 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, 
 but the case does not support his opinion clearly f, and +11 Hen. 
 Eobinson produced a great many early instances in sup- 
 port of its existence]:, and considered that "an infant ofj Bk. u. 
 
 c. 3 
 
 fifteen may certainly release the fee to his guardian hold- 
 ing over, or to tenant for life, or a mere right to one 
 
 d Complete Copyh., 33, §. 3. As to the supposed power of devise at 
 fifteen, see Tear-book, 3 Hen. VI. 5, and contra, 21 Edw. IV. 24, and 
 the section on devise 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 different 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.ntt.- remainder to another in tail t, " Omne maius continet in 
 
 52 b. ' ' J 
 
 se minus e ." 
 
 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 {francus lancus), 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 f . 
 
 c 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. Copyh., §. 33. 
 
 ' "Isabel de Graveney petit dotem. Et consuetudo est in partibus 
 illis quod uxores maritorum defunctorum habeant francum bancum de 
 
 terris socmannorum et teneant nomine dotis ad vitam suam sed si " &e. 
 
 Is. de Graveney's Case, Bract., lib. iv. t. 6, c. 13. 
 
 In c. 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 (including 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. 
 
 556 • Co 
 
 ral old authorities for the wider position f, and especially ntt. 33 b'. 
 Margaret Godfrey's case, where the widow claimed that + ^ k - "• 
 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 Regis, 17 
 Edw. II., 16. 
 
 Eobinson also held that if the widow leases the land and 
 marries, the lessee would not have the emblements ± ; but X 5 Eep. 
 this was not warranted by the case adduced, and the con- 
 trary opinion has long been established § g . § Co. ntt. 
 
 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 
 shall follow the nature of the land, unless they are rents- 
 service appendent to the demesnes of a manor descendible 
 
 In the Book of Christchureh, cited below, we find " Gavelkendi debent 
 dotare de medio." 
 
 " In gavelkind mulier habebit medietatem pro dote sua." — {Stat, de 
 Prmr. Regis, 17 Edw. II., §. 16.) 
 
 e 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. 
 
88 The Tenures of Kent. [chap. 
 
 at common law. Tithes impropriate, however, are not 
 gavelkind, though they arise from land of that tenure h . 
 
 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 1 . 
 
 The widow takes a moiety of her husband's socage lands 
 in several other parts of England besides Kent. For in- 
 
 * Taylor, stance, 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 Richmond ; 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. Htt. (land held in) chivalry, the wife took only a third partf," 
 
 note'7. (15 Hen. III.) 
 
 By the custom of some counties she takes half, 
 and by the custom of some towns or boroughs she shall 
 
 % 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 k . The same custom prevailed at Hat- 
 wood, Essex'. 
 
 II Co. Htt. In some other places dower was reduced to one-fourth II ; 
 
 33 b. " 
 
 h Lushington v. Llandaff, 2 New Rep. 491. 
 
 ' " Dos post feloniam mariti peti non potest a muliere, &c, nisi in casu 
 speciali sicut in Kaneia." — (Bracton, iv. 311; Co. litt. 41a; and see 
 Wilson's note on Robinson (2), bk. ii. c. 4.) 
 
 k Inquis. p. Mort., 44 Hen. III., 27 ; Cal. Geneal., i. 33. 
 
 1 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 m . 
 
 It is a common custom in burgage tenements held 
 in borough-English, for the widow to take the whole 
 in dower 11 . 
 
 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 moietv durante viduitate. and take a third for life*. * Co. utt. 
 
 . 33 b 
 
 The strictness of the law on this point gives great value 
 to those inquisitions post mortem and assignments of dower 
 in Kent, where we find that the widow took one-third in 
 dower, a proof that the land is not of the nature of gavel- 
 kind j\ For instance, in 49 Edw. III. one-third of the + Arehai0] . 
 manor of Buckland (Feversham hundred) was assigned ^g^""* 
 in dower, as appears by the Escheat Eolls of that year. 
 Now we know, independently of this, that the manor was 
 
 ,u Inquis. p. Mort., 4 Edw. I., 88 ; Cal. Geneal. i. 
 " Co. litt. 37b, and 111 a; F. W. B. 150; Bac. Abr. i. 531 ; Eobins. 
 Appendix, "Wilson's note (1). 
 
 Newton v. Shaftoe, 2 Keb., 158. 
 
 p Demies y. Selly, Cro. Elis. 825, and ride 1 Leon. 61. 
 
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 him a sub- 
 tenant, Osbiorn, held it by military service. 
 
 Domesday Book tells us that in this manor were two 
 ploughlands, soil, 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 Apperfield 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 oven 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) q . 
 
 Tenant by the curtesy is entitled by the custom of Kent 
 to one moiety and no more of all the lands and tenements 
 of gavelkind nature of which his wife was actually 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 ' : 
 
 9 Mose v. Peltebeam : " Clamat terrain tanquam liberum bancum suum 
 per legem et consuetudinem Kancise." — (Itin. Kane. 39 Hen. III. 14.) 
 
 Be Beniings v. Prior of Christchurch : " K. de Valoignes habuit no- 
 mine franei band medietatem illius manerii." — {Itin. Kane., 25 Hen. III., 
 extracted infra.) 
 
 ' Tbe Custumal 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 (1.) (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 1' enfant seit oi crier e que le Hu e le Cry seit lue, e le pais 
 ensemble, e eyent veue de l'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 
 be of 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 non caste tamen 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 born (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 Boughton 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 ; 'Fitz! 
 
 PrcscriD* 
 
 at that time of common coppice woods in the Weald of tion, 52, 
 
 IT- . 16 Edw. 
 
 .Kent. IL 
 
 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 "the 
 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 
 saying, that there was no common in gavelkind lands, or 
 it may be merely an inference from the fact that all gavel- 
 kind, ex vi termini, 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 found 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. s 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- 
 * Hasted, long to the Crown *." It was proved, however, to be 
 
 viii. 121. ° ... 
 
 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 Kust- 
 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 
 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. 
 
 The first is merely a point of antiquarian interest, scil. 
 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 *. 
 
 Coustu- 
 
 irier, c. Though not mentioned by Coke, who merely states the 
 t Co. utt. general rule that leprosy was no impediment to descent t, 
 
 Go 
 
 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 ±, and in Pasch. 4 John, rot. 6 
 
 123, Ab- ' 
 
 trev. pia- dorso, Ruff v. Warm, a leprous brother claimed certain 
 
 citorum, 
 
 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 moi'e 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 
 
 * v.v. 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 
 
 u Everard x. Champagne; 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 x , and is recited in the copy of the customs 
 allowed in eyre 21 Edw. I. y 
 
 The abolition of real actions z 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 
 
 * Close Soils, 16 Hen. III. 
 
 y An extract from a record of the " Pleas bf the Crown in divers Coun- 
 ties," Trin. 25 Hen. III., No. 49, mem. 2, will shew the form of these 
 trials. 
 
 "Twyfield P. Eic. de Swanton, Eic. Plogh de Peckam, Eoger de Mara 
 et Godefridus de Hamsted iiij. Gravelikindays sumuntur ad eligendum xij. 
 Gravelikindays de visneto de Mereworth ad faciendam juratam loco magna? 
 assisse, &c. inter Elenam filiam Will. Pet. et Will, filium Eicardi, &c. de 
 viij. acris terra?, &c. in Mereworth." The names of the twelve "gavel- 
 kind men" follow. 
 
 1 3 and 4 Will. IV. c. xxvii. §. 36. 
 
 a Twelve was the number mentioned in the writ, and also in the oath 
 of the four knights. But fourteen have been returned, and in King v. 
 Bryien, Cro. Car. 511, twenty were returned, and it was said that the 
 surplusage made the whole return bad. The court, however, held it good, 
 and cited several precedents for the decision. (Co. litt. 129 a; Harg. n. 
 2 ; Booth on Eeal Actions, 96 ; 2 Eo. Abr. 674.) 
 
 H 
 
98 The Tenures of Kent. [ch 
 
 243 
 
 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. iii. 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 Pord Place, West Lyghe or Leigh, 
 East and West Ewehurst, Ensfield, and Bendsley, 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, Pord 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 his 
 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 
 
"v.] The Norman Conquest. 99 
 
 purchase and partly by that Act, into the ownership of 
 Elisabeth Terry, 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 
 record of the trial by the Grand Assise is also a useful 
 piece 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. 
 
 b Aid pur faire fils chevalier or pur fille marier were not due from lands 
 held in francalmoigne in Kent. See Prior of Thurgarton's Case, 1 Edw. 
 II.; Prior of Boxgrave's Case, 9 Edward II.; Sunninghull's Case, 
 1 Edw. II. : and "Walter Coekfield's Case, 9 Edw. II., cited in Madox, 
 Excheq. 416. 
 
 H2 
 
ioo The Tenures of Kent [chap. 
 
 First he notices that the word 'battle' is omitted in 
 Tottel's printed edition of the Custumal, and in the Lincoln'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. Assise)*." He also expressly warns readers against Tottel'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 sont tenus 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 Bettes and his brother Maurice c claimed against 
 John son of Bernard thirteen acres and a half of. land in 
 
 b " Johannes de Pettes et M. frater ejus petunt versus J. filium Bernardi 
 tresdecim acras terrae 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 Kobertus 
 antecessor eorum tenuit terram prsedictam 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 tenemento quod teneatur in gavelkind 
 nisi tantum jurata xii tenentium in gavelkind, &c. Et ponunt se in 
 juratam xii. tenentium in gavelkind loco magna; assisse. Dies datus est 
 eis a die Pasch. apud Wilton et tunc veniunt iv. gavelkendi, &c."— 
 40 Hen. III., Ablreviatio Placitorum. 
 
v -] The Norman Conquest. 101 
 
 1 Bakethald,' and John son of Bernard asserted his right 
 to retain the land, and offered to prove it by his body, &c, 
 according to the usual 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 gavelkind tenement, but 
 on ly a j ur y °f 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 Bobinson 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 d ." 
 
 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 
 
 d Lowe v. Paramour, Co. Ent. 182, Dyer, 301 (13 Eliz.). 
 
102 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 douht 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, and 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., Eobert 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 Eobert 
 de Kendal " to restore to the lady of Harty Island (sister 
 of Thomas Eoscelin) 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. VIIL, 
 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 until " 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. * Hastvi. 
 
 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 feoffment 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 
 face of the Custumal, the charter of Henry III., and the 
 early cases. Eobinson, 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 e , and that 
 
 e The property claimed by Lowe and Kyme against Paramour is de- 
 scribed in Coke's Entries, tit. Droit. Battaile., as one principal messuage, 
 &c, with sixty acres of pasture, twenty acres of meadow, and fifty acres 
 of marsh-land. 
 
104 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 born 
 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 (Threngs), 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 
 
v.J The Norman Conquest. 105 
 
 tenures allowed upon the manors, of which the seigniory 
 and the demesnes were held in francalmoigne by them f . 
 
 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 Threngs, 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 
 must have been the lesser thanes or drengs, now called 
 Milites, 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- 
 
 f Liber Ecoledm Christi. Collectanea Historica, Gul. Lambarde, Cotton 
 MSS., Vespasian, A. v. 885. 
 
 f Esse in custodia usque ad unum ac vice- 
 simum annum. 
 Homagium faoere. 
 Eelevare. 
 Maritare. 
 Dotare de tertio. 
 
 P rimogenitum succedere in to turn. 
 Socagium praestare." 
 
 " Milites sive liberi tenentes 
 debent 
 
io6 
 
 The Tenures of Kent. 
 
 [chap. 
 
 kind g , 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 11 , 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 services were not diminished *. Thev might not sell 
 
 Custumal. J b 
 
 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- 
 
 e From the same MS. : — 
 
 " Gavelkendi debent 
 
 h From the same MS. : — 
 
 : Liberi Sokmanni possunt 
 
 Feoditatem faoere. 
 Esse in nutritura propinquioris. 
 Consanguinei usque ad xv m annum. 
 Recognitioncm domino pro terra, facere. 
 Dotare de medio. 
 - Omnes participabunt." 
 
 f Dare, vendere libera sokmanria sed ad 
 voluntatem domini. 
 Non alienare. , 
 
 Facere certa servitia. 
 Antenatus sucoedet in totum. 
 Averium masculinum non vendere. 
 Won filiam maritare nisi det vii. solidos. 
 Filium omnino clericum 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 tor.™. 
 "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 Eochester, 
 
 1 From the same MS. : — 
 
 ' Sokmanria sua quae dicuntur coteria tal- 
 
 liare ad voluntatem domini. 
 . Facere servitia incerta. 
 " Cotaru 1 ' ' '1 1 ' 1 mi <j are nec vendere nee proprium habere. 
 
 Ml acquirere nisi ad promotionem domini 
 
108 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 k ." 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 Eoches- 
 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 Eochester 
 Custumal tells us that in Frindsbury there were only 
 twenty-one ' yokes,' 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 '. 
 
 k " Dominus potest ponere ad opera quemeunque Yoluerit de Netis suis 
 in die St. Martini. Et sciendum est quod Neti iidem sunt quod Neat-men, 
 qui aliquantum liberiores fuerunt quam Cot-men, qui omnes habent vir- 
 gatas terras, vel dimidias yirgatas ad minus. In crastino non ponit eos 
 ad opera sine consensu eorundem." — {Custumal Koffense.) 
 
 1 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 gavelkende ;" and " Midle-ferm tenet unum messuagium et tres acras, 
 qua? solent esse cotariorum, modo reddit xl d . de gablo." And from an 
 Account-roll of Charing manor, a.d. 1230, the bailiff acknowledged the 
 
v.J 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 Rochester 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 1 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 
 3s. 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 born on his land m . 
 
 receipt of a fine from certain cottagers that their tenements might be 
 changed to gavelkind. — (Somner, Gav. 59.) 
 
 m This will 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 Eiohesforde servis et nativis 
 meis, pro bono servitio mihi ab eisdem facto, plenam libertatem, et volo 
 quod quilibet eorundem habeat cartam manumissionis sigillo meo signa- 
 tam, in testimonium hujusmodi meae ultima? 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, the borderers, who tilled 
 the in-land s, were socage tenants of an inferior sort, and 
 not included in the privileges of gavelkind. 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 n . But a difficulty still remains as to those 
 free socmen mentioned above, whose land descended to the 
 eldest son. 
 
 Lambarde held that all ancient socage was not gavelkind, 
 and taking the distinction made by Glanville and Bracton 
 
 ° Pari. Surveys, 1649, cited Hast. 3, 107. 
 
v.J 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 'Rolls " was produced by him, viz. inquisit. 
 post mortem Walter Colpepper, 1 Edw. III., which shewed 
 that the liberum feodum at Shirbourne descended to the 
 eldest son, and was carefully distinguished from "tene- 
 ments in gavelkind*." In eramb ' 
 
 ° 540. 
 
 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 Robinson, " by numberless instances 
 in the Kentish iters f ; " and secondly, because he assumes t m>. i. c. 
 that gavelkind is an inferior tenure to this free socage with Gav. 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 (laicum 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 disgavelling land was "de tenementis quae sunt in tenura de 
 gavelkind facere liberum feodum," e. g., in the Charter given hy King John 
 to the Archbishop of Canterbury. See also the case of Gatewylc v. Gate- 
 wylc, 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, hut not those in dispute, because they were ' lay-fee, ' pur- 
 chased by one of the brothers. " Hugh Coffin seisitus de una carucata in 
 feodo apud Chisteley. Et juratores dicunt quod H.C. hahet fratres pri- 
 mogenitos qui partiti fuerunt cum eodem de gavilicunde quam habuerunt, 
 sed non de ista terra, quia est laicum feodum et purcacium, ipsius H.C." — 
 (fRotuli Curies Regis., Palgrave, i. 442.) 
 
 In the case of De Valoignes v. Be 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 quae nunquam 
 partita fuit.") The lands thus decided to be 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. 
 
ii2 The Tenures of Kent. [chap. 
 
 the Kberi socmanni and the borderers were held by inferior 
 tenures. 
 
 The MS. lately quoted shews this very plainly. The 
 liberi socmanni 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 absorbed by the 
 dominant tenure of gavelkind, the rule of primogeniture 
 being abandoned in order to share 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 
 the 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 
 tv. 19. w ' common law of Kent f," extending throughout the whole 
 + 6 Edw. county over all sorts of ancient socage land, including all 
 Hen. iv.8. the tenures inferior to knight-service, except mere copy- 
 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. 
 
CHAPTEE VI. 
 
 The Domesday Survey. 
 
 Domesday Book. — Its importance in all questions affecting lands in Kent. 
 — Ancient dimensions of land. — Sulings.— Ploughlands or carueates. — 
 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 Bichard I., it is bad 
 
 in law *. * Lwhing- 
 
 This book records the exact amount of land in each Liariiaff. 
 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 Bolls, the Books of Aids levied 
 on military lands, the Pleadings De Quo Warranto, the 
 Eeodaries of Kent, Fine Bolls, and other official docu- 
 
ii4 The Tenures of Kent. [chap. 
 
 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 
 « Davis, discourses ou chronicles du monde *." 
 
 28. 
 
 " This incomparable record," says Hallam, " 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 these, 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." 
 
 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 were 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- 
 
 299. 
 
vi.] The Domesday Survey. 115 
 
 where throughout Kent except on the manors of the priories 
 of Christchurch and Kochester, 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- 
 sto'ne, 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 
 Tryeneston, 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 
 Hugo his son Robert, Tryan. So that the said Tryan, Hugo, and 
 Robert, 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 Robert, the last-mentioned tenant, from the realm of 
 England"." 
 
 a On. tie practical usefulness 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 
 hundreds and other places described in it have undergone since the 
 eleventh century ; though it is only just to our antiquaries to state, that 
 this defect has to a certain extent been remedied by their learned labours." 
 — {Tayl. on Evidence, 1484; Ellis, Introd. to Domesday, i. 34.) 
 
 Owing to the great abundance of early records concerning Kent, the 
 inconvenience here mentioned of alterations in the names of hundreds and 
 other places is very rarely felt in enquiries relating to this county. 
 
 b This verdict is published in the Calendarium Genealogicum, p. 47, 
 36 Hen. III. 82. In that year the manor belonged to the Hospital or 
 
 i 2 
 
Exch.,296. 
 
 116 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, 
 bordarii, 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. 261. 
 
vi.J The Domesday Survey. 117 
 
 used probably much more extensively in determining 
 questions of gavelkind c . 
 
 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 Pecheham. In the time of 
 King Edward it paid tax for six sulings, and now for six sulings 
 and a yoke (6J). 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 Gale's Vet. Script., i. 124, Peter of Blois records that the monks of 
 Croyland appealed to its authority temp. Hen. I. Other cases occur in 
 the Abbreviate Plaoitorum, e.g. "Abbas Sampson protulit cartas diver- 
 sorum regum, et prseterea pomit se inde super Botulum Wintoniae 
 (Domesday Book)."— (Abbr. Plae., 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 Abbrev. Placit. It was ad- 
 mitted to decide a question whether certain lands were ancient demesne 
 or franJcfee (2 Edw. III. 15) ; whether certain boroughs were ancient 
 demesne (Madox, Firma Burgi, 5) ; whether lands were held of the 
 crown ut ale honore, or ut de corona (Kelham, Domesday Illustr., 245). 
 London was declared not to he 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 
 a demand of tithes for a new mill, since which time Domesday Book has 
 been 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.' 
 
n8 The Tenures of Kent. [chap. 
 
 this manor except in paying the tax, because it was free land 
 (i. e. the tenant was a dreng or lesser thane) . 
 
 "Richard of Tunbridge holds of this manor two sulings and 
 a yoke (2j) ; there he has twenty-seven socage tenants (villani), 
 who hold seven carucates, and wood enough to feed ten hogs ; the 
 whole value being £4. In the time of King Edward the whele 
 manor was worth £12 ; when the Archbishop received it, £8 ; 
 now what he holds is worth £8 d ." 
 
 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 {villani) and nine 
 husbandmen (bordarii), 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, Ealph 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 
 
 d "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 heavy. Soon after the 
 Conquest the pound sterling was divided into twenty shillings."— {Hume 
 Hist., i. 103.) 
 
vi.] The Domesday Survey. 1 1 9 
 
 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 suling and a half, and 
 have there in demesne three carucates : sixteen socage-tenants 
 (villani) 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 villani, 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 to 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 Pulham 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 e . 
 
 In the period extending from the reign of Alfred to that 
 
 " " We find a very numerous class, above 82,000, styled lordarii, 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 cotarii." — (Hallam, Middle Ages, ii. 367.) 
 
 We have seen that these borderers are so called from 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 " lords." 
 " Dominicum dicitur quod quis habet ad mensam suam, et idcirco Anglice 
 dicitur Bord-land."— {Bract., 4, tr. 3, c. 9 ; Co. Copyh., 9 ; Co. litt., 5 b.) 
 
 None but the cottagers {cotarii) and the slaves were in Kent as badly 
 off as the villani 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 poterit revocavi.' " — {Fleta, 5, c. 5 ; Co. Copyh., 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 *. * Kembio, 
 
 Codex 
 
 About the reign of Edward the Confessor a system of D>p-i.iotj 
 dividing the country into manors was introduced, having Glossary 
 been in all probability borrowed from the Normans. land;' 
 
 Allen's 
 
 Since that time the manors of Kent have been divided Royal Pre- 
 into demesne lands and tenants' lands. „ ™£o ; Hail., 
 
 The former were retained by the lord of the manor, and no " te " *' ' 
 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 u 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- 
 kind," 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 f . 
 
 The limits of the demesnes and. the tenants' land may 
 be said to have corresponded with the earlier division of 
 
 f " A perfect manor could never exist without a perfect tenure between 
 very lord and very tenant in fee." — (Co. Copyh., 31 ; Att.-Gen. v. Par- 
 sons, 2 Tyrwh., 223 ; Glover v. Lane, 3 T. K. 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 " frank tenement," or " frank fee 
 (liberum feodum)" 
 
 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 
 so 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 modern 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 s . 
 
 s In this way Hallam explains the curious variations in the size of the 
 hundreds in various counties. " It is impossible to reconcile this to any- 
 single hypothesis. No difference of population, though the south of Eng- 
 land was undoubtedly far the best peopled, can be conceived to account 
 for so 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 different 
 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. 
 
 • Roman Somner* and others maintained that they were the same 
 
 h "' measure, and supported the statement by an argument on 
 
 the similarity of their derivations. 
 
 Suling no doubt is derived from sul, l 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 
 + Speiman, three swolings f ") ; but an examination of Domesday Book 
 « Suling.' ' 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 Dzalogus de Scaccario, 31, is conclusive : ' Hundredus est ex hy- 
 darum aliquot centenariis sed non determinatis': quidam enim ex pluribus, 
 quidam ex paucioribus hydis constat.' " — [Midi. Ages, ii. 280.) 
 
 h " Sullerye (said Coke) also means a ploughland. TJnum solinum or 
 solinus terree, containeth two plow-lands and somewhat less than a half, 
 for there (in Domesday) it is said, septem solini, or solina terrae sunt 1 7 
 carucatae." — (Go. litt., 5. a.) See also Archceologia Cantiana, i. 234, and 
 v. 284. 
 
 The word mil or %ull is said not to he obsolete in Dorsetshire even now. 
 Sul-paddle is a provincial word meaning ploughshare, and sul-yard, suliard, 
 and sull-soiv 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.d. 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 suling 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 
 between the suling and the carucate, the Kentish and the 
 Norman ploughland. 
 
 "We know from Domesday Book that there were over 
 1,100 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 
 (j'uffa), and measurement by hides and virgates. 
 
 For instance, in an old Assise Eoll 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 k ." 
 
 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," (AngMcus numerus). The English were long 
 accustomed to reckon by "the long hundred of six-score 1 ." 
 
 1 " 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 (33s. 4d.), and this was 
 the living of a ploughman or yeoman." — (Co. litt., 69 a, 86b.) 
 
 Tor other estimates of the value of a carucate see Agard's tract on the 
 dimensions of land ; Palgrave, Eotuli Curia Regis, vii. ; Bracton, ii. 26, 8 ; 
 Kelham, Domesday Illustr. i. 169. 
 
 Meta 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.) 
 
 k Compare Cust. Eoff. 3, 4, 9, 10; Cott. MSS. Vesp. A. 22; Eegistr. 
 Roff. 63. 
 
 1 " Centum acras de centum et viginti ad le centum." Book of St. 
 Mary's 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 m . 
 
 Mr. Kemble, one of the highest authorities on such 
 points, has calculated that 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 modern historian of the island, has 
 considered that the allowance of 600 hides, each containing 
 40 acres, was substantially correct u . 
 
 According to Hasted's History, " the whole island con- 
 tains about 3,500 acres of arable and 3,500 of marsh," 
 with little wood, and no waste land at all*. * Hast. 
 
 X 22S 
 
 There are other indications that the ancient " hide" was 
 a small measure as used in Kent. Thus we find by the 
 records of Canterbury Cathedral that Otford manor con- 
 tained 100 hides (taxed later for eight sulings, about 1,600 
 
 hicks quae sunt duodecies viginti acras." — {Agard's Ik-act. Cott. MSS., 
 Faust. E. 5. 
 
 m Kemble, Anglo-Saxons in England, vol. i., chapter on Measurements; 
 Hasted, vol. i. 301; Spelman, Glossary, 292; Eeuds and Tenures, 17; 
 Hume, Hist. i. 103. 
 
 n Lewis, Hist, of Thanet. init. Hasted., vol. x. 223, 225 ; Lambarde, 
 Peramb., 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 " trilutaria terrce *." 
 
 These small hides were called manses, mansurce, tribu- 
 taria, indifferently. The manses possessed by the bur- 
 gesses of Canterbury at the Conquest are bides of this 
 kind, and not "dwelling-bouses," 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 fortunatelj^not such a difficult question. Kemble 
 said generally that the ancient English acre did not much 
 differ from the modern 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 quselibet perticata de 16 pedibus in 
 tco. ntt. longitudine f." In other words, the acre here described 
 contains 160 perches, each perch being measured by a rod 
 
vi.] The Domesday Survey. 129 
 
 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*Eiiis, 
 
 , , Introd. to 
 
 was always a piece of land containing 160 perches of six-Domesd. 
 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 j", it is+Decem 
 recorded that, "in Snave the Abbot had 248 acres mea- zfm?™** 
 sured 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 
 Flemish acres of marsh land to the church and monks of 
 St. 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 
 above mentioned. " The elementary acre" was forty of 
 these perches in length by four in breadth, but it was 
 found convenient in practice to use acres of different length 
 and breadth, care being taken that the superficies should 
 always be the same if possible. Thus an acre eighty 
 perches long was two perches in breadth. We have 
 a 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. Robert de Crevequer granted to William Ken 
 one rood and six ' deywerks,' called Brook, in Little Wro- 
 tham. In Hil. 33 Edw. IV. Exch. a Kentish jury found 
 that " the land called Priest-feld is glebe, except one rood, 
 • Registr. and eight devworks, which make one-fifth of an acre *." 
 
 Rolf. 582, , . 
 
 696. And in the Register of Battle Abbey we read that 
 
 "Lucas at Gate of Bexley enfeoffed the sacristary of Battle 
 Abbey of four dayworks 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, — 
 
 LENGTH, IN PEBCHES. BBEADTH, P. P. IN. 
 
 40 ' 
 or 80 
 The other measurements were as follows : — 
 
 LENGTH, IN PEECHES. BREADTH, P. 
 
 76 
 
 64 
 
 50 
 
 26 
 
 23 
 
 The table is calculated for acres of all lengths, between 23 perches and 
 76 perches. {Thorn, X. Scriptores, 2,032.) 
 
 4 
 
 
 
 
 
 2 
 
 
 
 
 
 p. 
 
 p. 
 
 IN. 
 
 2 
 
 1 
 
 1 
 
 2 
 
 7 
 
 4 
 
 3 
 
 2 
 
 2 
 
 6 
 
 2 
 
 4 
 
 6 
 
 15 
 
 3 
 
vi.] The Domesday Survey. 131 
 
 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 p . 
 
 We now come to a measure which has given its name 
 to many districts in different parts of Kent, viz. the Yoke- 
 land or jugum. 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. litt. 
 have rested upon an isolated passage in the description of 
 Haydon Manor, or the Mount, in Cobham, viz. : — 
 
 " Ernulf 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 
 held of King Edward. Taxed at one suling. Three pokes are within 
 Hugh's boundaries, and the fourth yoke is without." 
 
 Before leaving the subject of the yoke-land we may 
 notice some entries in the ancient account-rolls of the 
 
 * The oxgang yaried in different counties. "Eight acres made an 
 oxgang in the fields of Doncaster. Oxgang, yardland (virgate), and hide 
 or ploughland are altogether uncertain according to the diversity of 
 places."— (Co. litt., 69 a. 2.) 
 
 k2 
 
132 The Tenures of Kent [chap. 
 
 monks of Kochester, 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 * : — 
 
 Roffense, 
 
 P* 6 " TENANTS. ACRES. 
 
 A. B. 25 
 
 C. D. 10 
 
 E. P. 12 
 
 G. H. 12 
 
 I. J. half a yoke 
 
 Heirs of "W. one yoke 
 
 Heirs of Anselm one yoke 
 Tenants in the Weald one yoke of gavel-land 
 
 Of the demesne eight acres 
 
 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 
 difficulties, 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 Kochester 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 
 
 KENT. 
 0. d. 
 
 2 1 
 
 
 
 10 
 
 1 
 
 
 
 1 
 
 4 
 
 1 
 
 8 
 
 3 
 
 4 
 
 3 
 
 4 
 
 3 
 
 3 
 
 3 
 
 
 
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 Hollingbourne, 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*.") * Domesa. 
 
 3. Again, the small manor or reputed manor of Poole, Henahaii, 
 in the parish of Southfleet, was given to St. Andrew's Tables?^ 
 Priory by the Bishop of Rochester upon the division of 
 their revenues. We know from the Begistrum Roffense 
 
 that it contained exactly eighty acres "j", and from a record -f-Reg.Roff. 
 in the Cottonian Library that it was half a suling' 1 . 
 
 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 
 dimidium quae hunt 2^ solini.") 
 
 « " The sulings of Rochester." (Cotton. MSS. Vesp. A. 22, 69.) "In 
 Hakestane hundred (Axstane) et Southfleet 5 solini, Poole |- solini." 
 See Custumale Boffertse, 12, 32. 
 
 Hasted's account is inaccurate. " Pole or Poole is a manor here, which 
 ■was anciently estimated at one suling or ploughland. It appears by the 
 Book of Knights' Pees, 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 
 Eochester."— {East. ii. 432.) 
 
 It is entered in the Book of Aid, 20 Edw. III., as two-thirds of 
 a knight's fee held in Southfleet. See the Testa de Nevil. 
 
 47, 606. 
 
134 The Tenures of Kent. [chap. 
 
 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 BCok. 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- 
 * Ellis, pretation*. 
 
 Introd. to . ... 
 
 Domesday, On the last-mentioned authority the "suling" m the 
 
 Arcbsoi. estates of the Canons of Dover was equal to 160 acres. 
 
 v. 284. ' 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 that the 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 
 Rochester 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 
 
 + Registr. Book — contained 180 acres "I". 
 
 lfoffense, . -iii 
 
 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 acres 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 
 
 Borstall 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 difference. 
 
 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 in 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 r ." 
 
 " " The demesnes of Monkton," says Hasted, x. 235, " are very exten- 
 sive, the rack-rent being upwards of £700 per annum" in his time. He 
 adds, " The extensive demesne lands might well employ fourscore and nine 
 villeins." This of course is a mislake. The villani in Kent were free 
 tenants in socage (gavelkind), and the demesnes were cultivated by the 
 husbandmen or bordarii. 
 
136 The Tenures of Kent. [chap. 
 
 "The Abbot holds Tanet (Minster), which was taxed at 48 
 sulings. 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 Eegister of St. Augustine's 
 
 Abbey, and the accounts and measurements preserved by 
 
 * Decern Thorne, chronicler to the abbey *. If the 66 carucates of 
 
 Scriptores, 
 
 203X, 2. the tenants' land were equal to 48 sulings, the demesnes 
 must have held about 1§ suling. Those of Monkton were 
 nearly three sulings (2| ), 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, quite distinct from the socage portions of the manor 8 1. 
 
 Gav. 58 ; 
 
 *. 256.' " 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, viz. 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 sulings and 
 38 acres, paying " gavel" or rent either in corn or money: 
 the distinction between the services points to the ancient 
 difference between fhe'viUani and the bordarii or husband- 
 men bound to find provision for their lord's table. 
 
 Of these 42J 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. 
 
 The deed then proceeds to define the extent of a suling Halted, : 
 in the Isle of Thanet, which it fixes at 210 acres. " Quae- x ' 341 " 
 libet Swilling continet in se ducentas et decern acras 
 terrse." 
 
 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. 
 
 1 A copy of this deed may be seen in Somner's handwriting in the 
 library 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 
 Decern Scriptores ; 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 Norborne or Northbourne 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 Northbourne contains 200 
 
 * Thom, acres*." 
 
 Decern 
 
 Scriptores, 10. In the same deed it was declared that each acre in 
 
 22C3 
 
 the manor of Eipley was worth 3d. yearly, " and each suling 
 in Eipple 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. 1 39 
 
 deeds belonging to private families. The registers, ' ledger- 
 books,' and cbartularies 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 u . 
 
 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 Bochester, 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 ^ Summary 
 chief, the principal thanes, the " peers of Kent," " and it £*nds in 
 is to be observed that the Conqueror, when he distributed Kent > 20 - 
 
 u " It is much to be lamented," says Hasted, " that in the hurry of this 
 dissolution of monasteries great numbers of excellent books, and other 
 manuscripts, were made away with and destroyed,- to the unspeakable 
 loss of the learned world ; for there was scarce any religious house that 
 had not a library, and several of them had very good ones. Prom their 
 chronicles, registers, and other books relating to their own houses and 
 estates, the history and antiquities of the nation in general, and of almost 
 every particular part of it, might have been more fully discovered. The 
 many good accounts of families, of the foundation, establishment, and 
 appropriation of parish churches, and the endowment of their vicarages ; 
 of the ancient bounds of forests, counties, hundreds, and parishes ; of the 
 privileges, tenures, and rents of many manors and estates, and the like, 
 which we meet with in such of their books as are still remaining, are 
 sufficient testimonies how great the advantage would have been had there 
 been a greater number of them preserved." — {Hast, i. 332.) 
 
i 4 o 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 Eochester of a great number of manors, 
 
vi.] 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 
 over 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 archiepiscopi), 
 holding estates direct of the king by the spiritual services 
 of francalmoigne. These lands, pending the question of 
 the separation of their revenues, were entered in the name 
 of the Archbishop, though not said to 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 Bochester, 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 Bochester, 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 
 Bichard II., according to their chronicler Thorne, they 
 had twelve thousand acres in their demesne lands alone \ 
 
 x The Priory of Christchurch and the Abbey of St. Augustine were 
 near neighbours and bitter rivals. Their registers are full of the lawsuits 
 between the two foundations. Lambarde's account of their rivalry is 
 very animated : — " There was in Canterbury within the time of late 
 memory, besides others, two houses of great estimation and livelihood : 
 the one Christchurch 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 The Tenures of Kent. [chap. 
 
 7. The abbot of Battle, to whom was given in barony 
 u seven sulings " of land at Wye, and jurisdiction over 
 twenty-two hundreds in the Lathe of Scray. The Eegister 
 of Battle Abbey describes this estate thus : " Sep tern swol- 
 ings, qua? sunt terra? 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 
 "two sulings" of land at Lewisham, which had been held 
 by it in the late reign y . 
 
 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 
 • Heame's against a passage in Sprott's Chronicle *, (a monk of St. 
 Sprott, ' Augustine's Abbey, whose statements cannot indeed be 
 Lingard, received 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 z . 
 
 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 
 
 7 The alien priories retained their lands in England until 2 Henry V. 
 z Soil, the Archbishop, 84f ; the Bishop of Eochester, 8; and the 
 Abbey of St. Augustine, 15. 
 
 i. 425. 
 
vi. J The Domesday Survey. 143 
 
 greater landowners. We now return to the laymen hold- 
 ing lands in capite by barony. 
 
 10. Eichard Fitz-Gilbert, commonly called Eichard 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 Eomney Marsh, and had been held 
 by ' soc-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 sheriff of Kent, and steward of 
 the king's household (dapifer). This was Hamo de Crepito 
 Corde or Crevequer. His estate consisted of nearly twenty- 
 two knights' -fees, according to the Black Book of the 
 Exchequer. 
 
 14. Albert, the king's chaplain, held seven and a half 
 sulings 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 
 as holding so many " knights' -fees," and that the whole 
 county contained 278 knights' -fees. It would be very 
 desirable to know how much land each fee contained, but 
 
144 The 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 knight'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 Mititibus, 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 
 
 a " We are told," says Lingard, " on the authority of Sprott, the monk 
 of St. Augustine's Abbey, that four hides made an entire fee. Tet when 
 we come to the fees themselves we find none containing fewer than five 
 hides, and some containing more. In the Return 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, Jlist., i. 426; 
 Lib. Nig. Scace., 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 niilitis constat ex 4 hydis, et una 
 hyda ex 4 virgatis (yardlands), et una virgata ex 4 ferndellis (farthing- 
 deals or verndals, a Hertfordshire measure), et una ferndella 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; Sulden, Titles, ii. c. 5. 
 
VI.] The Domesday Survey. 145 
 
 the 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 
 the 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 
 knight's-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 
 Monkton 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". 
 
 B "De Suylingis Comitatus Eancise et qui eas tenent. Ex valde 
 veteri libro fide digno."— ( Cotton MSS. Claud., c. iv. 153 b.) The re- 
 ference to this 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 sulings 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. c 
 
 Leaving now the tenants in eapite, 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. 
 
 given. In the beginning of the book is the memorandum, "this book 
 I had from my Lord Burleigh." The list was compiled either in the end 
 of the Conqueror's reign or in the beginning of that of William Eufus, 
 as we see by the names of the tenants, Comes 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 
 Pitz-Ansgot, and Walter Pitz-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 : — 
 
 Name. ! 
 
 Stjlings. 
 
 Yokes. 
 
 ACEES 
 
 Knights'-Fees 
 (In Black Book.) 
 
 St. Augustine's 
 
 145 
 
 3 
 
 
 
 15 
 
 Archbishop and Priory 
 
 335 
 
 3 
 
 
 
 84f 
 
 Bishop of Eochester 
 
 56 
 
 3 
 
 
 
 8 
 
 St. Martin's 
 
 24 
 
 
 
 132 
 
 — 
 
 Newington Priory 
 
 7 
 
 2 
 
 
 
 — 
 
 (Hamo) Crevequer . 
 
 43 
 
 3 
 
 
 
 21| 
 
 Helto (De Eos) 
 
 1 
 
 
 
 
 
 31 
 
 Maminot . 
 
 28 
 
 
 
 
 
 39 
 
 The Bishop of Eochester retained 45i sulingB out of the 66, and gave 
 the rest to the monks of St. Andrew at Eochester. Cotton MSS. Vesp. 
 A. 22, 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 villani, and in an inferior kind of socage to the 
 bordarii and cotarii: from the average size of the holdings 
 the villani were often called " tenants of carucates " (caru- 
 cati), and the lower classes of freemen " tenants of yard- 
 lands" (virgati), 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 3 , 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 peculiar features both our constitution and our na- 
 tional character *." * m &&. 
 
 Ages, ii. 
 
 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 Xing. There were two classes of burgesses, 
 the one of free burgage tenants, the other of immigrants 
 
 d Some confusion has before now arisen from a neglect of the fact that 
 these villani were free socage tenants, and not serfs of the demesne. 
 For instance, "In Domesday Survey the class villani compose 6,597 per- 
 sons, the servi 1,148, and the bordarii 3,118, a total of 10,863 persons in 
 a servile condition, for the bordarii were but one degree only more inde- 
 pendent than the villani. One of two conclusions only remains to be 
 adopted, either that in respect to Kent at least the Survey was erroneously 
 composed, or that shortly after its compilation the Kentish men were 
 emancipated from their feudal restrictions." — {Canterbury in the Olden 
 p. 13.) 
 
 i2 
 
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 King e . 
 
 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 mueh 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 
 
 e 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 11,349."— (Eist.,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. 
 
YI.] 
 
 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 f , 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 free tenants in 
 socage were dispossessed of their holdings, except indeed 
 those socmanni of the highest class, who may have been sup- 
 posed to have resisted the invaders. 
 
 Probably the yeomen and the labourers were too insigni- 
 ficant to demand the special attention of the Conqueror, 
 ' Tenants in capite . . . .13 
 
 "Undertenants 
 
 Villani 
 
 Bordarii 
 
 Burgesses 
 
 Cotarii 
 
 Socmen 
 
 Serfs . 
 
 Miscellaneous 
 
 212 
 
 6597 
 
 8118 
 
 661 
 
 364 
 
 44 
 
 1148 
 
 31 
 
 Sir H. Ellis, Introd. to Domesday Book. 
 
 12,188 
 
i5o 
 
 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 e . 
 
 There were then the lands of 680 ploughs free demesne 
 land at the date of the Survey to 2,332 held by the villani 
 and lordarii ; 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 
 
 b "We may take the hundred of Stroud as a specimen of the proportion 
 
 of demesne to socage land. 
 
 
 
 
 Pabish. Stjlings. 
 
 Cabucates 
 
 Cabttcates 
 
 CABtTCATES 
 
 
 in Demesne. 
 
 in Socage. 
 
 OE AEABLE. 
 
 Hailing . 
 
 H 
 
 3 
 
 6 
 
 7 
 
 Cookstone 
 
 2 
 
 2 
 
 5 
 
 6 
 
 Hennis . 
 
 i 
 9 
 
 1 
 
 — 
 
 1 
 
 Chalk . 
 
 3 
 
 2 
 
 5 
 
 7 
 
 Beccles . 
 
 i 
 
 2 
 
 2 
 
 i 
 
 3 
 
 Denton . 
 
 1 
 
 2 
 
 1 
 
 1 
 
 2 
 
 Higham . 
 
 5 
 
 3 
 
 6* 
 
 12 
 
 Cliff 
 
 H 
 
 H 
 
 5J 
 
 6 
 
 Cliff 
 
 i 
 
 2 
 
 i 
 
 2 
 
 — 
 
 — 
 
 Cowling . 
 
 H 
 
 2 
 
 i 
 
 3 
 
 1* 
 
 Cowling . 
 
 i 
 
 2 
 
 — 
 
 
 
 l 
 
 2 
 
 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. Much of the land which was 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-serviqe ; 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. 
 
CHAPTEK VII. 
 
 Tenure in Burgage. 
 
 Burgage Tenure. — The customs of the Saxqn towns. — The Tenure still of 
 importance. — Boroughs of different kinds. — Rural 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. — In ancient boroughs. 
 — 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 the 
 Saxon 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 
 Eomans 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 
 
vii.] Tenure 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 modern times. 
 Their tenure, free though restricted, was less irksome than 
 that of the small rural landowners 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- 
 farm in burgage. This had been done sometimes before 
 the Conquest, as at Huntingdon *, and prevailed every- * Domesd., 
 
 203 
 
 where after that time. The lord of the borough, after 
 such a confirmation or new creation of a burgage tenure, 
 no longer held it in his demesne; the borough, like an 
 ordinary socage tenant, owed him fealty, rent, and cus- 
 tomary services, and for the rest might manage its own 
 affairs. The only inconvenience which balanced these ad- 
 vantages was a liability to be " tallaged " or taxed at the 
 lord's discretion, in the same manner as the cottagers on 
 his demesnes, a tyrannous custom which lasted till far 
 into the thirteenth century. 
 
 The country districts were everywhere divided into 
 tythings, which may at first have meant the lands of ten 
 free families, but which soon became a mere local division. 
 
154 The 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 dors-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 borough (from 
 borh, a pledge) is the Kentish name for districts elsewhere 
 called tythings. 
 
 * vol. i. "The office of the bors-holder or tything-man/' said Hasted*, " was 
 251- to determine the smaller disputes between neighbours, and such 
 
 trespasses as belonged to their farms, the greater matters being 
 reserved for the hundred courts. Besides this, King Alfred or- 
 dained that every natural inhabitant, or Englishman born, 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 
 
vii.] 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 bors-holder. 
 
 Alfred did not set up the ty thing- system over England ; 
 it grew up gradually between the time of Canute and the 
 Norman 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 
 clear 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 
 by the bors-holder and four tenants of gavelkind in the 
 borough," except in the towns where twelve were bound 
 to attend. 
 
 Having now distinguished clearly between ancient 
 boroughs in the usual sense, and the rural boroughs into 
 which Kent is divided a , we may return to burgage 
 tenure. 
 
 It is denned as a kind of town-socage, where the King 
 
 a The division of Kent into boroughs becomes important in any search 
 for old cases respecting the tenure of particular pieces of land in the 
 county. The name of the borough is often given instead of that of 
 the 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 Liter 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 gavelkind, 
 
 t Co. litt. 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 
 j Hii. 16. that town £. 
 
 Kta.'fre- The law on this point is well declared in the Case 
 f£ 53 ' of May and Bannister v. Street §. This was shortly as 
 
 Elis.120. follows. 
 
 The Prior of Merton was seised of a messuage in the 
 Archbishop's ancient borough of South wark. In the reign ' 
 of Henry Till, both the borough and the messuage in it 
 came separately into the hands of the King. 
 
vii.] 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 Southwark. 
 
 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 
 and the bounds of Kent; nor can any customs, whether 
 borough-English, partition in descent, or anything else, 
 be newly imposed upon land by any royal grant, "For 
 customs receiving their perfection from the continuance 
 of time, come not within the compass of the King's pre- 
 rogative*." * Coke . g 
 
 It would be as reasonable to think that ancient demesne ^°f^ r 
 could be created at this day by the like authority (i.e. that sect 31, 
 lands 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 Kolls b 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 convenient 
 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 *." 
 Lerncm. 
 
 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, 
 
 b In Minet v. Leman, L. J., Few Series, 24,' Ch. 547. 
 
vii.] 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- 
 Iroohe'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 different 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. Sandys, 6 L. J. 
 Chy. 67. 
 
 In this case the heirs to some gavelkind landTiad con- 
 curred in its sale, but they insisted that the fund re- 
 mained impressed with the character of real property, 
 and having been produced in part by a sale of gavelkind 
 and, a proportional part of it ought to he considered as 
 hearing the character of gavelkind, and therefore that such 
 part should follow the customary mode of descent to all 
 the males equally. 
 
 This claim was properly rejected as fanciful ; the cus- 
 
160 The Tenures of Kent. [chap. 
 
 tomary 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 rules of descent in 
 common socage, not of the local varieties of the general 
 tenure. 
 
 It was said above that 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 Eeal 
 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 Minet 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 royal 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- 
 
Vii.J Tenure in Burgage. 1 6 1 
 
 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 Ealf de Columbers held eighty acres of the 
 allodial 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 e ." 
 
 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 d ." 
 
 And in the twelfth century two messuages in the city 
 were granted by the hereditary Alderman of Bidingate 
 "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 
 some 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. 
 d 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 he still surviving 
 in them, as if holden in allodio, pleno 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 terrae 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 was 
 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 bailiff. But in the reign of 
 Henry I. it was leased for twenty 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 
 
vii.] Tenure in Burgage. 163 
 
 lurgh-Engloyes, or borough-English ; in the other, to the 
 eldest, by what they called burgh-Frangoyes, 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 e ." 
 
 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. Merchetum, 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 
 his 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. 
 
 Kep Pre- 
 
 borough-English is not found particularly in places where uee. 
 merchetum was used, but principally in the king's ancient 
 boroughs, as we have seen. 
 
 A few sentences about this Droit de Marquette, or mer- 
 
 e Third Eeal Property Report, p. 8. 
 M2 
 
1 64 The Tenures of Kent [chap.. 
 
 chetum, 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 born on his land, 
 and ought to be recompensed for the loss of their possible 
 services. It could not be required of a free man as such, 
 
 * Co. Htt. i.e. unless he held tenements in villeinage *. 
 
 BrLtAi. A notice, however, 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 nliabus 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 a . yearly, and a fine (merchetum) 
 for the marriage of his daughter or sister at the discretion 
 of the Abbot of Abingdon." 
 
 Trin. 18 Edw. I. Coram Rege, r. 12, it is said "T. de E. 
 is the villein of one Eolliot, 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 
 
 1 14 Joh. daughter, or the sale of his horse f. 
 
 rot 1 85 
 
 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- 
 senhale (Norfolk), Morton, Thurgarton, and Eempton 
 
vii.] 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 f ," 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. Eor 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 * nb. vii. 
 custom stands with some certain reason, because that the + '§.' 2 ii. 
 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 jRobinson, 
 regulation was tempered, in order to meet all cases, with ppe 
 the free power of testamentary disposition, 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 distinction between the Burgh-Engloyes and the Burgh-Frangoyes 
 the east and west portions of Nottingham, was, it is said, kept up as late 
 as A.r. 1713. 
 
1 66 The Tenures of Kent [chap. 
 
 of the law were cherished and acted upon, while the lords 
 would naturally be indifferent 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 
 
 * Eep. i. given to the Eeal Property Commissioners *, where it was 
 
 Mr. Ham- said that there are several manors near London, where 
 
 Evidence. ^ is still 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 B . 
 
 s Eobinson (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- 
 
VII.] 
 
 Tenure in Burgage. 
 
 167 
 
 There is now no difference between the law of borough- 
 English in copyholds and in freeholds 11 , except that any 
 variation from the general rule of descent to the youngest 
 son must be specially pleaded. 
 
 Besides the custom of borough-English proper 1 , 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 
 themselves 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 advantage of the father's tenement was left to descend to 
 the youngest son, the only, though a mean support of his infancy." 
 
 b Reeve v. Malster, Cro. Car. 411. 
 
 1 Besides the ancient boroughs which are the proper home of borough- 
 English, 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 : — 
 
 St. John of Jerusalem . 
 
 . Middlesex. 
 
 Sutton Court . 
 
 t> 
 
 "Weston Grimshall, in Albury . 
 
 Surrey. 
 
 Colley, in Eeigate 
 
 » 
 
 Sutton, near Woking . 
 
 ji 
 
 Little Bookham 
 
 >> 
 
 Wotton 
 
 i} 
 
 Abinger 
 
 t> 
 
 Paddington 
 
 » 
 
 Paddington Pembroke 
 
 ji 
 
 Grimshall Towerhill 
 
 rt 
 
 Grimshall Netley 
 
 t> 
 
 Shere Vachery and Cranley 
 
 a 
 
 Shere Eborum 
 
 11 
 
 Dunsford [in Wandsworth] 
 
 >> 
 
 Compton Westbury 
 
 >> 
 
 Broekham 
 
 j> 
 
 BoxstedHill . 
 
 . Essex. 
 
 Battle, freeholds and copyholds 
 
 > in . Sussex. 
 
 Eobertsbridge . 
 
 j> 
 
 Somersham, and the copyhold 
 
 s in its 
 
 soke or liberty 
 
 Huntingdonshire 
 
1 68 The Tenures of Kent. [chap. 
 
 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 of 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. i;tt. the eldest son. (32 Edw. III. Age 81 *.)" 
 
 140 b. ' 
 
 (3.) In certain places the custom is restrained to lands 
 
 of which the father died seised. And this custom is taken 
 
 t Robins, very strictly. In the case of Fane v. Barr-\, this usage 
 
 129 
 
 existed on certain copyhold land; a surrender was made 
 to the use of A. and his heirs ; A. died before admittance, 
 and the eldest son inherited the land, the custom requiring 
 seisin and dying seised, before it could operate. "The 
 Court said it would have been different had this land been 
 found to be of the custom of borough-English proper, or 
 gavelkind." Subsequent cases have confirmed the rule, 
 
 Alconbury . . . Huntingdonshire. 
 
 Weston .... tl 
 
 {Note by Mr. Wilson, editor of Third Edition of Robinson's " Gavelkind.") 
 To this list we may add the manors of 
 
 South Burstead . _ . . . Essex. 
 
 Middleburgh . 
 Part of Brighton 
 Town-hill 
 
 Sussex 
 
 . Hants. 
 
 And several others mentioned in the text, where special varieties of the 
 custom exist. 
 
vii.] Tenure in Burgage: 169 
 
 that where the tenant of land held by such a custom does 
 not die seised, the heir according to the common law will 
 be entitled 1 ". 
 
 And since the New Inheritance Act has deprived the 
 words " dying last seised" of much of their previous im- 
 portance in descents according to the common law, yet 
 they are not construed with any less strictness in inter- 
 preting a custom of the kind described l . 
 
 In other parts there are customs more extensive than 
 borough-English proper. As (1.) that the youngest brother 
 shall inherit in default of sons, in the manors of Dorking, 
 Milton, and "Westcott, in Surrey, and elsewhere. 
 
 (2.) That the custom shall extend to all male collaterals, 
 as in Ealing, Isleworth, and Acton, manors in Middlesex. 
 In the Case of Muggleton v. Barnett, cited above, the cus- 
 tom of the manor was "that the land descended to the 
 youngest son of the person last seised, if he had more 
 than one ; and if no son, to the daughters as parceners ; 
 and if no sons or daughters, then to the youngest brother 
 of the person last seised, and to the youngest son of such 
 youngest brother." 
 
 (3.) Another custom has been mentioned above in this 
 chapter as existing in some of the manors round London, 
 that real property under the value of £5 descends to the 
 youngest son, and all above that value to the sons equally, 
 as in gavelkind. 
 
 (4.) In other manors near London, as Eulham, Putney, 
 Sheen, Mortlake, Battersea, Eoehampton, Wimbledon, 
 
 k Reeve v. Malster, Cro. Car. 410; Clements t. Scudamore, 6 Mod. 122; 
 Newton v. Shafto, 1 Lev. 172; Payne v. Barker, 0. Bridg. 18; Rider 
 v. Wood, 1 Kay and J. 644. 
 
 1 Muggleton v. Barnett, 1 H. and N. 282, 2 H. and N. 653 ; 4 Jurist. 
 N. S. 1, 5, 56. See Appendix A. to "Williams' Eeal Property. 
 
1 70 The Tenures of Kent. [chap. 
 
 "Wandsworth, Down, Barnes, Bichmond m , the customary 
 descent is extended to females as well as males, lineal 
 
 * Co. litt. 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*." 
 
 It was once said that the custom of borough-English 
 prevailed over the copyholds in the parish pf Elham 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, 
 
 + Vol. via. could not find any of these lands, and saysf, "On 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 Bochester, 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 by 
 Mr. "Wilson in the third edition of Kobinson's treatise. 
 
 n Comp. Newton v. Shafto, 1 Lev. 162, 1 Sid. 267. 
 
 Preston v. Jervis, 1 Vern. 325. 
 
vii.] Tenure in Burgage. 171 
 
 nothing in construction, but only in the quantity of land 
 taken by the heir p . 
 
 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 
 borough-English and gavelkind. 
 
 The words of the Custumal are these q : — 
 
 "If any tenant in gavelkind die, having inherited gavelkind 
 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 Mes- 
 suage r also be divided among them, but the Astre s shall belong to 
 the youngest son (the others receiving an equivalent in money) 
 
 p Clements v. Scudamore. Salk. 243 ; Raym. 1,024. 
 
 q " Si ascun tenant en gauylekende nmrt, et seit inherite de terres 
 e de tenemenz in gauylekende, que touz ses fitz partent eel heritage per 
 ouele porcioun. Et si nul heir madle ne seit, la particion feit entre les 
 females sicome entre les freres. Et la messuage p seit autreci entre eux 
 departi mes le astre q demorra al pune, et la value de ceo livre a cheseun 
 des parceners de eel heritage a xl. pes de eel astre, si le tenement le peut 
 suffrir. Et donkz le eyne eit la primere election, e les autres apres per 
 degree." 
 
 1 Messuage. "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. 57, and other authorities cited in Harg., n. to Co. litt. 5, a.) 
 So that the residue of the tenement, after giving forty feet round the fire- 
 place to the youngest, may often have been considerable. 
 
 ' Astre, the hearth-place, a word often used, as here, to denote the 
 house. Astre and Messuage are opposed, as domus and messuagium. An 
 heir set up in a house of his own in his father's lifetime is called Seres 
 Astrarius by Bracton, ii. 85; Co. litt. 8b; Liber Assisarum, 23. Lam- 
 barde notices the use of astre in this sense in Shropshire, (Peramb. 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 Eochester. 
 And in the same way " the small advantage of the father's, 
 cottage" 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 property 
 which may not be divided. Such were castles used for 
 * Bract, ii. the defence of the realm *, homage, and fealty, estovers 
 Htt. 165 a. appendant to a freehold, pensions or corodies uncertain 
 granted to one and his heirs, common of piscary (un- 
 certain), common of turbary, common of pasture sans 
 nombre } &c. u 
 
 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. 
 
 4 "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."— (Lambarde, JPeramb., 
 562.) 
 
 u Lord Huntingdon v. Lord Mountjoy, Co. litt., 164 b; Godb. 17 1 
 and 307. 
 
vii. J Tenure in Burgage. 173 
 
 But houses and castles not used in the defence of the 
 realm, 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- 
 scent, 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 
 share 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, 
 scil. foot by foot, if need be, except the ' cover of the hearth 3 (the 
 principal fire-place) which remains to the youngest, as was said 
 before ; nevertheless let the youDgest make reasonable amends to 
 his 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 Re P 
 when it was said " that if the youngest son by a second or 
 subsequent wife should take, the eldest son by a former 
 wife would afterwards be excluded from the succession; 
 which seems to be a great anomaly altogether." And 
 Eobinson t has collected several cases to shew that this t Bk. i. 
 
 c. 6. 
 
 was the rule in gavelkind, although it is evident by con- 
 sidering the lateness of the introduction of the exclusion 
 
 1 "Ensement de mesons que seront trouves en tieus messuages, seient 
 departye - entre les heires per ouele porcioun, ceo est a savoir, per peies sil 
 est mistier, sauve le covert del Astre, que remeynt al pune, ou al punee, 
 si come il est avan dist, issi que nequedont que le pune face resonable 
 gre a ses parceners de la partye que a eux appent, per agard (award) de 
 bone 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 y . A woman, having 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 z . 
 
 In another case, a man married twice, having 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 1 . And 
 * it. Kane, in Bishop v. Herberdefield*. where a man had issue a son 
 
 8 Edw. H. . 
 
 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.Gav. brother t. 
 
 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. 
 e. 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. 
 
 i The exclusion of the half-blood, now abolished as founded upon im- 
 perfect reasoning and contrary to natural justice, was peculiar to the law 
 of England. It was founded on the feudal maxim that the heir must be 
 of the blood of the purchaser. It was not known in its full extent to our 
 early authorities, Bracton, Eleta, Fortescue, &c, and its chief rigour is 
 comparatively a late invention. (Steph. Blackst. i. 415 — 421.) * 
 
 ' Kingston v. Culhill, It. Kane, 55 Hen. III. 6; Mich. 11 Hen. "VIII. 
 B. B. ; Beiyll v. Crowther. 
 
 a Home v. Fresinghey, It. Kane, 6 Edw. II. 18. 
 
Vii.] Tenure in Burgage. 1 75 
 
 A custom of borough-English, like those of gavelkind, 
 must have existed from time immemorial. "Novel ville 
 ne poet aver custome *." * 21 Hen. 
 
 Unity of possession by the superior lord will not ex- 
 tinguish these customs t. Neither will a change of tenure t 94 Hen. 
 
 vi. 2. 
 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 b . 
 
 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 
 course in any other hands °. 
 
 If a fair or market be held on borough-English or gavel- 
 kind land, all profits which come from the soil, as stallage, 
 pickage, &c, follow the custom, but all other profits go to 
 the heir at common law a . 
 
 Lands in an ancient borough, which are shewn by 
 Domesday 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 
 lands of Dover Priory, which were granted to the monks 
 in francalmoigne long before the Conquest. 
 
 It has often been proposed to do away with the borough- 
 English descents, both of burgage and copyhold lands, and 
 there is no doubt that many inconveniences result from 
 them, while the reason for thtir introduction in favour 
 of the tradesmen in ancient boroughs, &c, is no longer 
 applicable. Among these inconveniences are principally 
 (1.) that 'the youngest son is often a minor when the 
 
 b Moulin v. Dallison, 3 Cro. 484 ; Be Beggbrook's Case, 26 Hen. VIII. 4 ; 
 14 Hen. IV. 9 ; 11 Hen. VII. 25 ; Keilw. 80. 
 
 Randall v. Jenkins, 1 Mod. 96 ; Stokes v. Terrier, 3 Keb. 292. 
 d Heddey v. Wellhouse, 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 different persons, the freehold to the eldest sod, and 
 the copyholds to the customary heir in borough-English e .' 
 (5.) From minority, addition to the number of trustees 
 or cestuis 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 f . 
 
 e First Eeal Prop. Eep. 286. 
 
 f The following instance of its inconvenience was given by J. Hum- 
 phreys, Esq., before the Eeal Property Commissioners: — "An instance 
 came within my knowledge in the course of practice, and is now generally 
 known among the profession : a client of mine bought the Town-hill estate, 
 in Hampshire, from the trustees, which Middleton's will directed to be 
 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 honour- 
 able man, said that he would confirm the estate as heir-at-law. The 
 purchase was completed, and all went on well till we came to the middle 
 of the estate, when we found some twenty or thirty acres of borough- 
 English, most important from their situation ; the youngest son was only 
 twelve years of age ; there was nothing to be done ; it was locked up ; 
 sub-sales by the purchaser were thrown back upon his hands, with other 
 mischief of every description. These instances are more or less frequent, 
 as the custom or similar ones occur. In some counties, such as "Worcester- 
 shire, the tenures are numerous, and the intermixture of lands held under 
 them often minute." — (1st Rep., App. 254.) 
 
vii.J Tenure in Burgage. 177 
 
 There are other customs in ancient boroughs, besides 
 the "general custom" of borough-English ; they are not, 
 however, noticed by the law without being specially 
 
 pleaded*. • Clements 
 
 Such was the custom of devising all the lands and more. 
 tenements of which the owner had the fee simple. This 
 was of the highest importance both in burgage and gavel- 
 kind lands, before the Wills Act of 32 Hen. Till, was 
 passed. The custom extended to rents, if they had existed 
 from time immemorial, and even to newly created rents- 
 charge g . These cases established the rule that the rent 
 is part of the land and issues out of the land : " The rent 
 is of the same nature as the land, and the bowels of it V 
 In the same way, where there was a custom to devise 
 ancient-demesne lands, it was allowed to devise a rent- 
 charge, for it was as much ancient- demesne and devisable 
 as the land out of which it was drawn \ 
 
 In London, Canterbury, and some other boroughs, the 
 citizens had a custom of devising their freeholds within 
 the liberties of the city. The wives of citizens of Canter- 
 bury enjoyed the same privileges. By such customs a man 
 might devise to his wife, or in mortmain, in opposition 
 to the ordinary rules of law. 
 
 In some boroughs the widow has all the tenements of 
 her husband instead of her third ; in others she takes 
 a moiety during her life and widowhood, as in gavelkind. 
 
 It would be impossible to mention all the special cus- 
 toms usual in burgage tenements. The customs of London 
 as to trade, wives, widows, children, guardians, &c, are 
 
 s Randall v. Jenkins, 1 Mod. 96, 2 Lev. 87, 3 Keb. 214; Stokes 
 v. Terrier, 3 Keb. 292, 1 Mod. 112. 
 h Zoueh's Case, 22 Assis. 78. 
 1 Randall v. Writtle, 3 Keb. 216. 
 
 N 
 
vii. c. 37. 
 
 178 The Tenures of Kent. [chap. vii. 
 
 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 far 
 * Robin- ' more unreasonable customs *.' We are told by the year- 
 c. 3. 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 money, measure cloth, and the likef. 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 birth, according to the use and custom 
 of the town of Bridport (Dorset) k ." 
 
 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 being 
 closely connected together in their origin and in their 
 modern interpretation, as we have seen. 
 
 k Esoh. Roll, 53 Hen. III. 16. 
 
CHAPTEE VIII. 
 
 Ancient Demesne. 
 
 Account of the tenure. — Customary Freeholders. — Terra Regis of Kent.— Manors 
 of ATLESFORD, PULLENS, HARTFORD.— Case of Gouge v. Woodin..— 
 Descent of Rents-service.— WILMINGTON, FAVERSHAM, MILTON, MIL 
 STED, NEWINGTON.-CoM.-d of Ancient Demesne.— BOKINGFOLD, GIL- 
 LIN GK AM. —Van Weald of Kent.— Customs and Services of Tenants in the 
 Weald. 
 
 Axcient 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 Tear-book, 40 Edw. III. 
 45, there is a case where the tenure was disallowed, the manor being 
 entered* as Terra Episcopi. So in Saunders v. Welsh, 1 Salk. 57, the 
 manor of Otterbury was decided not to be ancient demesne. Edward the 
 Confessor had aliened it, and the Domesday commissioners described it 
 as private property. 
 
 The subordinate manor of Halgell, or Hawley, in the parish of Sutton- 
 at-Hone, in Kent, has been called ancient demesne, but wrongly. It is 
 mentioned in Domesday Book to have been " reeve-land," i.e. held by the 
 sheriff in virtue of his office, and to have remainc d in the king's occupa- 
 tion afterwards. The jury affirmed that it had been part of the manor of 
 Dartford, which is ancient demesne, but when the Survey was compiled 
 it was in the hands of Odo of Bayeux, then Earl of Kent. (Hasted, ii. 
 353, 354.) 
 
 Hale describes the old manner of consulting Domesday Book, Common 
 law, c. 5, note, "Issue taken whether the manor of Long Hope, in 
 Gloucestershire, were ancient demesne : and Domesday Book was brought 
 into court by a certiorari out of Chancery directed to the treasurer and 
 chamberlain of the Exchequer, and sent by mittimus into the Common 
 Pleas." It appeared that Hope was ancient demesne, but nothing was 
 
 N 2 
 
180 The Tenures of Kent [chap. 
 
 These manors were in 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 corn, &c, 
 on the land, and therefore they ought to have many 
 
 * 2 inst. privileges *." 
 
 Tracts, We must remember that this tenure was always a spe- 
 
 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 chivalry, until 
 the abolition of feudal tenures. 
 
 It follows, therefore, that the manors themselves and 
 the demesne lauds with the rents-service, advowsons, 
 and other appurtenances, were not held in ancient de- 
 mesne, but were " frank-fee," or freehold at common 
 
 t f. n. b. law t b « 
 
 Gat. 56™ It follows that the waste lands of the manor, which are 
 
 intorp' i n f a °t P ai "t °f the demesnes left uncultivated for the con- 
 venience of the freehold tenants requiring common of 
 pasture, are also " frank-fee." The wastes and common 
 
 said of Long Hope, and the tenure was not allowed. See also Griffin v. 
 Palmer, 1 Brownl. 43; Newton v. Shaftoe, 2 Keb. 158; Crowther v. Old- 
 field, 1 Salk. 364; Hodges v. Hodges, 1 Lev. 106; Sorivens on Copyh. 
 581. 
 
 b "In ejectment defendant pleaded, that the lands were parcel of the 
 manor of Bray, and that the manor was ancient demesne {antiquum domi- 
 nicurn) held of the Crown. And this was held naught, per totam curiam : 
 for hereby it must be understood the lands in question are part of the 
 demesnes, and supposing it to be a ' manor of ancient demesne,' yet the 
 manor and its demesnes are impleadable at common law and not in the 
 lord's court, for then the lord would be judge in his own cause." — (Baker 
 v. Wieh, 1 Salk. 56, and the cases there cited.) 
 
vin.] Ancient Demesne. 1 8 r 
 
 lands are of the same tenure as the demesnes, and this is 
 not altered by a subsequent inclosure or " approvement." 
 
 In the same way it is held that the copyholds in such 
 manors are not properly ancient demesne : being held at 
 the will of the lord, though according to the custom of 
 the manor, they are in the eye of the law part of the 
 demesnes ° *. * Bracton, 
 
 lib. iv. p. 
 
 These copyholders have often been classed erroneously 293 ; Fieta, 
 among the true tenants in ancient demesne, who are all 
 freeholders by an ancient tenure of socage f. The limits t Burton, 
 
 n 10 iiii Compend. 
 
 of ancient demesne were therefore not enlarged by the 1,031. 
 conversion of feudal tenures into socage in 12 Car. II. 
 
 The copyholders have very frequently the same customs, 
 but not the same privileges as the tenants in ancient 
 demesne. They are suitors in the court baron, the latter 
 being in reality judges. The most important privileges of 
 the latter were the exemption from serving on juries, from 
 payment of toll and tax "for all things concerning their 
 husbandry," 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 
 at Westminster, or elsewhere." 
 
 These actions were determined by a writ peculiar to this 
 tenure, called the "small writ of right close" (parvum 
 breve de recto clauso) ; the tenants had also their peculiar 
 writ of monstraverunt, if more than the ancient and cus- 
 tomary services were demanded by the lord. A fine or 
 recovery levied or suffered in the superior courts at West- 
 minster changed the tenure to " frank-fee," until reversed 
 by a writ of disceit brought by the lord in the court of 
 ancient demesne. This last peculiarity caused great in- 
 
 c Brittle v. Dale, 1 Salk. 186, 1 Ld. Eaym. 45; Smith v. Frampton, 
 3 Lev. 405, Co. Copyh. § 14. 
 
t8* The Tenures of h'ent. [oiup. 
 
 conveniences, tho titlo to tho land having boon unmarket- 
 able until (ho tine or recovery was reversed, or tho soiguory 
 released by tho lord. Tho writ of disooit was abolished 
 by tho Finos and Recoveries Ant; "tho substitution of 
 a simple dood renders such mistakes impossible for tlio 
 future, 11 and has deprived t lit* tenure of most of its former 
 importanoo ,l . Most of tho other privileges aro now value- 
 less or obsoloto. 
 
 Tho tenants in ancient demesne aro t'rooholdors, although 
 thoy r<Hiuiio admission by tho lord ol" tlio manor. This 
 incident of their tonuro has caused thorn to bo oallod 
 customary t'rooholdors, and litis lod many distinguished 
 ■writers to speak of thorn as merely "an exalt od spooios of 
 * Co. copyholders, 11 or in tho language of Coke *, '' copyholders 
 §aal '' °'' frauk-tonuro",'' as opposed to tho ordinary "eopy- 
 holdors of base tonuro. 1 ' 
 
 Thoy must not bo oonl'ouudod with the customary t'roo- 
 holdors of tho north of Kngluud, whoso estate nooius to 
 have boon that of moro lonmils-nt-will with a tenant rii/hl, 
 not enforceable at law until Into in tlio sixteenth century. 
 Alter niucli dispute and many contrary decisions it appears 
 to bo settled that those aro in reality copyholders, and 
 have been treated us sucli in the later legislation'. 
 
 * "In mmiorn which iirti iinrjoiit, (limii'Ntui, wholhor holm^ing ul. Iliin 
 diiV t" tlio liiiif? or tho Milhjoot, tlio court hiii'ou liim llio only mill oxoliiMivti 
 original jiinmliclioii (Niihjcot In mi appeal In llio Common I'lomi hy writ 
 uf I'iiIho jiiilgmoiil.) in nil iiilioiiH roliiling to I. in. I. hclil ol' the limnor liy 
 mi luiciont loiinm of hociik'o." ( llililoli, ( 'niiiponil, Ilial; I IiihI.. 'J(ll) ; 
 1 lino. Miriiln'. 17'.!; U lloiil l'ro|>. Hop. I.'t; 'J Nuriv. on Oopyh. ()|)l ; 
 Williiiiimtm Itcul 1'rop. 11H; ,*l K I Will. IV. o. 74, § I, !,, (I.) 
 
 " llliiclmt. '2 Coinm. 100. '1'hoy inn tho piivilofroil villolllH ol' llniotoll 
 {ril/tiiii ,,rivi/a,i«/i), lih. iv. ... 12H; HriUtin, (1(1; h'itz. Nut. Illev. I.'t, M; 
 lliilo, Coiiimi. Liiw, <i. o, ti. ; 'J hint. 'M\t>. 
 
 ' TIii'ho eimtomnry chIuLoh nro I'oninl in (Wnwiill, Homiii'Mot, Dovoii- 
 whiro, ii. g. hy Mm custom nl' liiill'onl ('initio. {l'oriiiuin'n Ciihv, MV HI; 
 
tiii.] 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- * C - utt - 
 
 . . 140, b. 
 
 portant in our present enquiry, 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 f appears to draw a distinction between " the + ™ L L 
 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 Regis, is comprised in the four manors of 
 Aylesford, Dartford, Faversham, and Afrlton (by Sitting- 
 bourne). 
 
 1. Aylesford g . 
 
 The limits of the ancient demesne were thus traced by 
 
 Co. litt. 59, b.) In Northamptonshire, Co. Copyh. § 32, but chiefly in 
 the north of England, viz. " in North Yorkshire, that part of Lancashire 
 called Over-sands, the south-west portions of Durham and Northumber- 
 land, and oyer the whole of Cumberland." (3 Eeal Prop. Eep. 13 ; So-riven 
 on Copyh. c. 19 ; Lewin on Trusts, 188, 466.) See the judgment of Lord 
 Ellenborough in Doe d. Reay v. Huntingdon, 4 East. 271 ; Williams, Eeal 
 Prop. 118, note, and cases there cited. 
 
 e Described thus in Domesday Boot : " In Larkfield Hundred the King 
 holds Aylesford. It pays land-tax for one suling. Land for fifteen 
 
184 The Tenures of Kent. [chap. 
 
 * vol. iv. 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 11 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 terms to Sir Eichard de 
 Grey and his heirs. The inquisition post mortem of Will, de 
 
 tcai. Ge- Duston, 55 Hen. III. 19 f, gives further details as to the 
 
 11 Oil 1. 11 9. 
 
 escheat of the manor, and the settlement of a rent-charge 
 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 
 t Hast. iv. tenant t \ 
 
 424; Re- 
 
 gistKoff. "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 villani with 
 five lordarii (hushandmen) hold five. There are eight slaves," &c. 
 
 h From the letters patent 5th April, 1 and 2 Ph. and M., by which 
 the manor was granted to Sir E. Southwell and his heirs, to hold by 
 military service, after "Wyatt's rebellion, cited by Hasted. 
 
 1 Tlcas of Crown in Canterbury, 21 Edw. L, 3, 7, 21. 
 
 425 
 
viii. J Ancient Demesne. 185 
 
 III:, that John de Grey 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 Eochester*. !.? ast-iv - 
 
 446. 
 
 The reputed manor of Pullens is part of the ancient 
 demesne of Aylesford. It was the subject of the suit of 
 Humphry v. JBathurst, 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 fact, " nothing being pleaded or found in the record 
 concerning the custom k ." 
 
 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 
 Normannorum 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- 
 
 1 Robinson, 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.) 
 
296 
 
 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 
 
 * Hast.ii. 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, in 
 fee to hold of the king as of his manor of East Greenwich 
 by fealty only in free and common socage, and not in capite 
 or by knight-service, paying a yearly rent. This grant 
 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 as 
 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 son 
 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 in 
 gavelkind before that reign. 
 
 It was, however, asserted by the two younger sons, that 
 by the private act of 4 Jac. I. a socage tenure had been 
 created, which from that time caused the manor and all 
 its appurtenances to descend according to the custom of 
 
Tin.] Ancient Demesne. 187 
 
 the tenure of gavelkind, " as other lands of socage tenure 
 
 had usually done *." * Hast. ii. 
 
 299. 
 The eldest brother insisting that the lands could not 
 
 become gavelkind in modern times, the dispute was 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, ex 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 modern 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 Lambardef are worth + p e ramb. 
 
 , . . 534. 
 
 remembering, viz. — 
 
 " Ancient knight's-fee is not of the nature of gavelkind. When 
 I speak of socage and knight's-fee, I must always be understood 
 to mean a tenure long since and of ancient time continued, and 
 not now newly or lately created, for so it may fall out otherwise 
 than is already reported by me. As for example, if land anciently 
 holden by knight-service come to the prince's hand, who after- 
 ward oiveth the same out again to a common person to be holden 
 of his manor of East Greenwich in socage, I suppose that this 
 land notwithstanding the alteration of the tenure, remaineth 
 descendible to the eldest son only as it was before 1 ." 
 
 In the same way lands held by the military tenures of 
 castleguard or escuage uncertain, might come to be held 
 in socage by the commutation of their service for a certain 
 money payment. Yet such lands were never treated as 
 
 1 Kirby Lee's Case, 1 Sid. 138; De Beggbrook's Case, 26 Hen. 
 VIII. 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 m . 
 
 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 the 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.ni. although the earlier judges were slow in arriving at this 
 
 32 • 26 • • • 
 
 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 Eobinson) 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 
 
 Peram. 
 
 548; concerning; a rent reserved on a gift in tail, or lease for 
 7Edw.HI..... . „ . , , T , . ., 
 
 38; 21 lite or years ot gavelkind lands, but as incident to the 
 
 ii?22 ' reversion it shall follow the nature of the lands J." In 
 
 10- w " ' all other cases the rent follows the customary course 
 
 jHob.i. in descent, "being part of the profits and issuing out 
 
 of it n ." 
 
 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- 
 
 m Dionysia Noel's Case, infra. ■■ Randall v. Jenkins, 3 Keb. 214. 
 
viii.] Ancient Demesne. 189 
 
 ance descended to Nicholas, the second, as heir at common 
 law. His younger brother again claimed his share as 
 co-heir in gavelkind, and the matter was decided by an 
 action. 
 
 Nicholas Gouge brought a special action for debt against 
 William "Woodin, which was tried at bar in the King's 
 Bench in Trinity term, 1734. The plaintiffs 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 could 
 alter the tenure of gavelkind lands, except an Act of Par- 
 liament passed expressly for that purpose. (2.) That 
 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 general 
 act of 12 Car. II. c. 24, which expressly altered the course 
 of descent of lands throughout England ; the fact therefore 
 that the military tenure had been changed to socage did 
 not alter the course of descent. (4.) They noticed also, 
 
190 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 gavelkind 
 customs. 
 
 A verdict was therefore found for the plaintiff Gouge, 
 who thenceforth held the manor and its appurtenances as 
 * Hast. ii. sole heir-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 modern 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 versa, 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. III. 
 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 
 
vin.] Ancient Demesne. 191 
 
 one knight's-fee in the hands of several joint- tenants, 
 husbands it seems of co-heiresses. The superior lord was 
 "Warren de Monte Canisio, or Montohensie *. # Hast. ii. 
 
 The parish of Wilmington is part of the ancient demesne 
 of Dartford. The manor of Wilmington, or Grandisons, 
 appears to have always been gavelkind. It was granted 
 by Henry VIII. in his 35th year with other lands and 
 rents in the manor of Dartford, to Geoffrey Pole, to hold 
 in capite by knight-service". It appears from Hasted's 
 History t, to have been divided between co-heirs in gavel- tvoi. u. 
 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 Eowehill, or, as it was formerly called, 
 La Ruehille, in the same parish, is also gavelkind, as ap- 
 pears from the inquisition post mortem of Anselm de Gyse, 
 23 Edw. I. 52, recently published in the Calendarium 
 Genealogicum $, viz. "the jury also find that John, son oi% p. 504. 
 the said Anselm, is his nearest heir, &c, but they find 
 that the manor of La Euehille 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. " Even in Kent if gavelkind lands escheat 
 or come to the Crown by attainder or dissolution of monasteries, and be 
 granted to be holden by knight-service or per laroniam, the customary 
 descent is not changed, neither can it be but by Act of Parliament, for it 
 is a custom fixed to the land." — {Robins, i. c. 5.) 
 
192 The Tenures of Kent. [chap. 
 
 and bordarii 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 Faversham 
 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. YIII. The demesnes were granted by Henry VIII. 
 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 
 bounds of the manor and ancient demesne are thus given 
 
 * vol. vi. by Hasted*: "The town and parish of Eaversham, the 
 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." 
 
 tHast. vi. 4. Milton (by Sittingbourne)f. 
 
 The account of this manor in Domesday Book shews 
 that it was of importance even at that date p - 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 husbandmen : they have 167 ploughlands. . . . There 
 is forest enough to pasture 220 swine. The tenants in the Weald pay 
 
 fifty shillings for horses and harness. In the manor are 10 slaves 
 
 Of this manor Hugh de Port holds eight sulings and a yoke (8J), 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 three ploughs on his de- 
 mesne," &c. 
 
viii.] 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 Paversham q . It also ex- 
 tended over the hundred of Marden *, containing within * Hast. vi. 
 
 51. 
 
 its bounds the parishes of Marden, Goudhurst (in part), 
 and Staplehurst (in part). 
 
 The manor of Milsted affords 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 carueate and 
 a-half of land in Milsted, &c, held of the king in capite 
 by knight-service s . This one carueate 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 heldf Hast. v. 
 in gavelkind like the rest of the hundred. This we learn 69.' vu ' 
 
 1 The manors of Newington (seven sulings), of Tong (two sulings), 
 of Tunstall (three and a-half sulings), and of Murston, are described 
 separately in Domesday Book. In some cases the land is mentioned to 
 have been taken by the owners at that date " from the king's villeins." 
 
 1 " Tenentur de domino Rege in capite per servicium unius fosdi mi- 
 litis." Inquis. 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. [chap. 
 
 inter alia from an inquisition post mortem (lately published) 
 taken on the death of Hamo de Crevequer, 47 Hen. III. 
 33 s . The jury found that the manor of Bokinfold de- 
 scended to the eldest son, the other tenements to copar- 
 ceners according to the custom of gavelkind. The manor 
 ■was soon afterwards granted in fee to Bartholomew de 
 Badlesmere to hold of the Crown in socage, and not as 
 before by barony. 
 * 3 Lev. In the case of Smith v. Frampton*, it was pleaded that 
 certain tenements held of the manor of Gillingham m this 
 county, were ancient demesne. The manor of Gillingham 
 is not described in Domesday Book as Terra Regis, having 
 been held long before the Conquest by the Church of 
 Canterbury in francalmoigne, and at the Conquest having 
 been allotted to the archbishop as part of his barony. It 
 appears, however, by the Parliamentary Survey of the 
 royal manors in 1649, that four denns or districts in the 
 
 + Hast. iv. Weald were held in socage of this manor +■ Of these, 
 230. . . . 
 
 Haydhurst in Marden parish, and Wmcehurstden in Goud- 
 
 % Hast, hurst, were ancient demesne %. 
 
 It may be well here to say a few words concerning the 
 
 Weald or Wild of Kent. This was known in ancient times 
 
 § Hast. i. as the forest of Anderida §. Not much of it was under 
 
 ner,' Rom. cultivation at the date of the Conquest, but it had been 
 
 Robins. ' usual on granting a manor to the Church, or to a layman 
 
 in another part of Kent, to annex a grant of some portion 
 
 of this forest, for the feeding of droves of swine. Hence 
 
 ■ "Dicunt juratores quod Eob. de Crevequer filius Hamonis de Cre- 
 vequer junioris est propinquior heres ejus de prsedicto manerio de 
 Bogingefold pertinente ad baroniam praedictam, &c. 
 
 "Item dicunt quod M. de Crevequer . . . E. de Crevequer . . . H. de 
 Crevequer filii prsedicti Hamonis, et E. J. et T. filii Hamonis de Creve- 
 quer junioris sunt propinquiores heredes prsedicti Hamonis qui ultimo 
 obiit de toto residuo tenementi prsedicti." — {Calend. Qeneal., 107.) 
 
 Gav. ii. 
 
viii. J Ancient Demesne. 195 
 
 such, land was called drove-land, and the tenants drove- 
 men * * . * Somn. 
 
 Most of the special customs and privileges of the socage Co. iitt. 
 tenants in the Weald are obsolete or unimportant. The p e ramt>. 
 principal privilege was that no tithe of wood was payable 
 within its limits ; this has ceased to be of importance since 
 the Tithe Commutation Act, but the point was formerly 
 the occasion of frequent disputes". Eobinson notices an- 
 other custom peculiar to the Weald, that the lords should 
 have all the great timber-trees, and the freeholders in 
 gavelkind only the underwood, "or at most the oak, ash, 
 and beech under forty years' growth -j" :" and he cites t »b. a. 
 several early cases to prove the custom. But this right 
 of the lords was commuted for a small quit-rent as early 
 as the reign of Richard II. ± t s ° mi >- 
 
 ° _ Rom. 
 
 Another custom noticed by him is that of ' land peerage,' Ports. 112. 
 by which the tenants in the Weald claimed the soil of the 
 highways and the hedges. 
 
 All questions relating to the rights or services of these 
 tenants, the common of pasture, right of pannage, &c, 
 were decided in a court called a Parroek, held once a-year 
 bv the lord at some place within the Weald x 8. § Somn. 
 
 J r s Gav. 23. 
 
 * For the limits of the "Weald, see Dearne's History of the Weald 
 of Kent, introd. ; Hasted, i. introd. ; Somner, Rom. Ports. 
 
 » Shelford on Tithes, 128; Chichester v. Sheldon, 3 E. and T. 1102; 
 Gilbert, 674, 686 ; Co. litt. 115 a, note 15 ; Hasted i. 295, vii. 243. Dearne, 
 xxxi., cites a treatise on the subject by Sir Eoger Twisden, and Hasted 
 an argument in the Common Pleas shewing the reason of the exemption. 
 (Harl. MSS. 980, 304.) But Cranbrook in the centre of the Weald did 
 not enjoy the exemption. (Hast. vii. 111.) 
 
 x " The country of the Dens (a British word) runs along the edge of 
 the Weald, forming a belt of forest round the cultivated country quite 
 independent of the woods, which once lay between village and village." — 
 {Kemhh, Anglo-Saxons in England,, vol. ii. p. 483.) There were 32 
 (some say 44) dens subject to the jurisdiction of the Court of Dens held 
 
 o2 
 
196 The Tenures of Kent. [chap. viii. 
 
 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, 
 50s. a-year." Others are mentioned to have paid " leave- 
 silver" or "danger" which was a payment for leave 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 Custumals 
 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, lieu of payments in kind by tenants in the Weald *. 
 
 30; 'Hast. Although a great part of the Weald was waste forest, 
 and not cultivated for long afterwards, it must be re- 
 membered that a large 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. 
 
 at Aldington in this county. Sir E. Twisden, cited by Mr. Kemble 
 in the passage just quoted, has left in his journal a full account of the 
 nature of this Court of the Weald. 
 
CHAPTEE IX. 
 Tenure by Barony. — By Oastleguard. 
 
 Baronies spiritual and temporal. — Abbey of Faversham. — Dover Castle. — 
 Varieties of Castleguard Tenure. — Chilham Castle. — Tonbridge Castle. 
 Rochester Castle. — Peculiar customs. — Penman's case. — Castleguard 
 
 . rents. Manors of EASTWELL, TIRLINGSAM.—Lennarol v. Earl 
 of Sussex.— COWDHAM, BRASTED, SEVER, APPERFIEZD, 
 CHEPSTED. — Disgavelled land. — Inquisitions post mortem. — Tenure 
 of Advowsons. 
 
 Baeont was the highest tenure known to the law, with 
 the exception of free alms or francalmoigne, where not 
 even fealty was due from the tenant. 
 
 Having said that lands held by "ancient knight-service" 
 have never been gavelkind, a fortiori we may lay down 
 that those originally held in barony, the highest kind of 
 knight-service, are equally free. 
 
 Again it has been shewn above that much land in Kent 
 was before the Conquest allodium or "thane-land," utterly 
 opposed in all its incidents to the nature of the socage or 
 gavelkind held of the same lords. After the Conquest we 
 have seen that this allodium was transferred to Norman 
 tenants in capite, from whom feudal services were thence- 
 forth due; but this transmutation of ownership did not 
 chauge the nature of the land, and in the hands of these 
 tenants in chief, or of the knights their under-tenants, the 
 free land remained as free, and in the hands of the socage 
 tenants the gavelkind remained as liable to fixed services, 
 as 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 
 their tenure of free alms. At first, therefore, there were 
 
198 The Tenures of Kent. [chap. 
 
 in Kent barons of two kinds, the first including the Arch- 
 bishop, Bishop of Eochester, the Abbot of St. Augustine's, 
 and the Abbot of Battle (as tenant of the manor of Wye) : 
 the second included all the other tenants in capite by military 
 service, of whom the most important was the king's half- 
 brother Odo, Earl of Kent and Bishop of Bayeux. 
 
 The first class, or the spiritual barons, were on the 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 iaroniam. 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 
 84| in various counties, of the Abbot of St. Augustine's 
 15, and of the Bishop of Eochester 8 b . 
 
 * Hody, Convocation, 126 : " Non sedemus hie episcopi, sed barones : 
 nos barones et vos barones — pares hie sunms." Fitz-herb. 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, Rot. 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; Prynne, Begister, 
 141 ; Dialog, de Scaccario. 
 
 b Hearne, Lib. Mg. Scacc. ; Dart., Hist. Cant. Cathedral, 53; Madox, 
 
IX.] Tenure by Barony. — By Castleguard. 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, soil, the Abbot of 
 
 Faversham was made a tenant "in chief et per baroniam" 
 
 of no less than sixteen knights' -fees c *. * Co - Htt - 
 
 . 97a ; 
 
 We will now confine our attention to the tenure of 2 Inst. 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 
 Fiennes, the first Lord Warden, to distribute among other 
 barons for the defence of this castle. He chose thereupon 
 -the eight whose names follow, viz. William de Albrincis 
 or Avranches, Fulbert de Dover, William de Arsic, 
 Galfrid de Peverel, William Maminot, Eobert de Port, 
 
 Exch. 439. Some records estimate the Archbishop's knights'-fees at 
 sixty altogether. A claim was made upon him for nineteen, more by 
 the officers of the Exchequer, -which he disowned. 
 
 ' The abbots of Faversham, though barons, did not sit in Parliament 
 after 18 Edw. II. No writ of summons was directed to any of them 
 after that year, probably on account of their extreme poverty. (Hast. vi. 
 327 ; Southouse, Hist. Eav. Cronicon Faversh. 71.) 
 
 The Mote in the island of Harty was a portion of one of these sixteen 
 fees. It was the subject in dispute of the famous suit of Kyme and 
 Lowe v. Paramour, Co. Entries, 182, described in a preceding chapter. 
 
200 The Tenures of Kent. [chap. 
 
 * Lamb. Hugh de Crevequer, and Adam Fitz-William *, each, of 
 
 Per. 153 . 
 
 Hast, ix.' whom was bound by the tenure of the lands so given to 
 
 483 
 
 maintain oue 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 Dover. 
 Besides these there was a considerable quantity held by 
 the tenure likewise of ward to this Castle d ." 
 
 There were in Kent three varieties of castleguard, 
 viz. : — 
 
 „* _ . / . I with uncertain castleguard service. 
 
 2. Xmght-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 service 
 of castleguard. 
 
 1 . • In the first class may be ranged those manors which 
 the nine barons retained in their own hands. Each selected 
 one manor as the "head of his barony (caput haroniiz)" 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, gives 
 several valuable extracts as to the tenure of the lands held 
 of this honour e . 
 
 d For lists of the manors and lands so held see Cotton. MSS., Vesp. 
 A. 5, " Castelli Feodarium ;"' Darrel, Hist. Dover Castle, " Constabularia;" 
 Feodary of Kent, in the Public Keeord Office ; Lansdowne, MSS. 369. 
 
 e "A court-leet and court baron is held for the manor of Chilham, at 
 which the several rents due from the denberries in the Weald are like- 
 wise collected, the tenants holding them in socage tenure. The manors 
 and lands now held of the honour of Chilham by knight-service are the 
 manors of Huntingiield, Shillingheld, Kingston, Denton, Esture, Hurst, 
 Luddenham, "Wetherlings, Northcourt, Colebridge, Tappington, Dyvyne, 
 Placy, Young, Much Hougham, Little Hougham, Godsland, Sibberston, 
 and Maxton. The royalty of it on the river Stour extends from Shalms- 
 
ix.] Tenure by Barony. — By Castleguard. 201 
 
 2. The superior lords gave most of their lands to military 
 under-tenants, who took upon themselves the service due 
 from their superior lord for certain portions of the land, 
 or who held by the service of guarding the lord's castle, 
 the lord undertaking all the service due to the king. In 
 either case the tenure of the under-tenant was merely 
 
 a species of ordinary knight-service*. Thus Littleton * Co. ntt. 
 wrote : " Also divers tenants hold of their lords by knight- 106 b. 
 service, and yet they hold not by escuage nor shall they 
 pay escuage ; as they which hold of their lords by castle- 
 ward, i. e. to ward a tower f of the castle of their lord, t Hast. 
 or a door or some other place of the castle J, upon reason- j §_ Ui> ' 
 able warning when their lords hear that the enemy will 
 come," &c. The tenure was always certain, 'as of a par- 
 ticular castle and a particular portion of it' §, but the § Hast, 
 services were essentially uncertain, or the tenure would 
 have become socage ||. ^214*' 
 
 In this second class were many manors held of the 
 king's castle of Eochester, and other castles held by 
 private lords, as Tonbridge, Canterbury, and others f . 
 
 3. In the third class were all those manors at first held 
 by military services of castleguard, which were afterwards 
 held by a payment of a fixed rent in money in lieu of all 
 
 ford Bridge to the bounds of Godmersham parish." — {Hast. vii. 277.) " At 
 the court held for the manor of Chilham the tenant of Luddenham is con- 
 stantly presented by the jury for default of service, as being held of it 
 under the notion of one knight 's-fee, and he is always amerced at two 
 shillings, the payment of which is never withheld." — (vi. 389.) 
 
 f Por the Castles of Kent vide Lambarde, Peramb. Introd; Darrell, Be 
 Castellis Cantice, cited Hasted, xii. 64, and the other authorities above- 
 mentioned. Of Tonbridge Castle Hasted writes : " There were formerly 
 some payments of castleguard to it, but they have been long since disused, 
 a few payments excepted which seem to be made for encroachments on 
 the lord's waste."— (v. 219.) 
 
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 
 * Hast, castle- ward *. The same change took place in the manors 
 
 ix. 484 • 
 
 Lamb. ' held of Eochester Castle e . 
 
 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. 
 YIIL, which enacted (1.) that the castleguard rents 
 should be payable at the Exchequer, and not at Dover 
 
 8 " Many estates in Kent, Surrey, and Essex are held of the castle of 
 Eochester 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 services 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. 
 Ryarsh. 
 Delce, GL 
 Delce, L. 
 Addington. 
 Norton. 
 
 Cobham Eastcourt. 
 Aldington Eastcourt. 
 Stockbury. 
 Hammill Court. 
 Earnborough Court. 
 Boughton Monchensie. 
 Midley. 
 
 L. Caldecott. 
 Goddington. 
 Padlesworth. 
 Bicknor. 
 Fraxingham. 
 "Wootton. 
 Eccles. 
 
 North Court (part). 
 Borstable, G. and L. 
 Combes. 
 
 "Watringbury (part)." — Hast. ii. 
 413 ; Zamb. Per. 530. 
 
ix.] Tenure by Barony. — By Castleguard. 203 
 
 Castle as had been usual : and (2.) that in default of pay- 
 ment the rent in arrear should be doubled and not further 
 multiplied. 
 
 But this did not apply to Eochester Castle, "where the 
 custom is, said to exist, that if the castleguard rent falls 
 into arrear it is liable to be doubled on each return of the 
 tide in the Medway during the time of default. 
 
 We are told * that the legality of this custom was nearly * Hast, 
 put to the proof in the last century by the lord of Swans- 
 combe manor, to whom as mesne lord the rents from 
 Eccles and Farnborough Court were due. On these rents 
 falling into arrear a double amount was demanded and 
 ejectments brought against the owners of the defaulting 
 manors. " A special jury was struck to try the matter : 
 but by the interposition of friends the dispute was com- 
 promised and a small composition accepted in lieu of the 
 penalty, though it was entered on the rolls of Swans- 
 combe manor in such way as that the custom of this pay- 
 ment might not be lessened by it in future." 
 
 It might have been difficult to prove the legality of 
 such a custom, the manors having been held at first in 
 ordinary knight-service ; the services of castleguard more- 
 over were not commuted before the reign of Henry III., 
 and any usage which can be shewn to have first com- 
 menced at any period since the reign of Eichard I. will be 
 void as a custom h . It must also be shewn that such a cus- 
 tom is reasonable and compulsory, so that there should be 
 no option in the lord whether or not he would choose to 
 reduplicate the rents; and it must have been peaceably 
 and continuously enjoyed from time immemorial. 
 
 In the argument on Periman's Case t mention was made t 5 Co. 
 
 ° 84 b. 
 
 " Bex v. Jolliffe, 2 Barn, 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, (i. 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 Eichard 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 service 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 Robinson 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 reminiscence 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. 554.) 
 
ix.J Tenure by Barony.' — By Castleguard. 205 
 
 land for neglect of service j (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 
 lord for castleguard, 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. 
 
 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. + Co. litt. 
 
 It was held indeed by Fitz-herbert that the military 
 character of the services survived any commutation for 
 rent, and he illustrated the position by the case of lands 
 held of an honour in the king's hands by the service of 
 homage, fealty, and rendering ten shillings yearly ad 
 war dam Castri de Dover t. t F -N. b. 
 
 . . 256. 
 
 This opinion was very fully discussed in the case of 
 Steven v. Holmes, Litt. 47, respecting a manor held of the 
 king by homage, fealty, and the service of paying 8s. Id. 
 yearly " to the ward of Dover Castle." It was maintained 
 on the authority of Litt. § 121 (" que est de plus validity 
 que F. IS. B. 256,"), that this rent-service converted the 
 
 ' Distress of the freehold by writ of cessavit was again given to the 
 lord by Stat. West. 2, c. 21, if the tenant were two years in arrear and 
 would neither pay nor find sureties for future payment. But the pro- 
 ceedings on a writ of cessavit (abolished 3 and 4 "Will. IV. c. 27) could 
 not be described as a special custom of a castle in Kent. Such customs 
 have been allowed if carried back beyond the period of legal memory. 
 (Robins, ii. c. 6.) 
 
206 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 castleguard rents were anciently and 
 originally held by Tcnight-serviee k . (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 
 
 k 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 service 
 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 custody 
 of the principal castle of the whole realm, the Lord Warden retired from 
 his office, and the Lord Hubert de Burgh, Earl of Kent, was appointed 
 Lord "Warden of the castle. He, considering that it was not safe for the 
 castle to have new guards every month, ordained, with the assent of 
 the King, &c., that each baron should pay ten shillings for his 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 no 
 less than eighty-eight knights' -fees in Kent held of Dover Castle by 
 ancient tenure of castleguard. A list of them will be found in the 
 Appendix. See also Camden's Britannia — Dover. 
 
ix.] Tenure by Barony. — By Castleguard. 207 
 
 where the king took a rent-service expressly in lieu of 
 
 all services and demands l *. * 33 Hen - 
 
 . VI. 7; 
 
 The court 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 castleguard 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 
 effected" 1 ." 
 
 Several castleguard 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- 
 stock, 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 Eochester Castle by the service of paying yearly 
 rent to the said castle, viz. at the feast of St. Andrew 
 £4 4s., and at the King's Exchequer 8s. 3d. in lieu of all 
 services." So in the same record it is said, "Wicham is 
 held by him in capite by the service of paying a yearly 
 rent for all services." 
 
 Another inquisition will shew the confusion that existed 
 on the question whether these commuted services made 
 a socage tenure. It refers to several manors and tene- 
 ments held of Eochester Castle, and is interesting as an 
 
 1 "Quant le Eoy dit 'pro omnibus serviciis et demandis' donques il 
 expresse son intention que seroit socage." 
 
 m "Resolv. que le tenure fuit un socage tenure come est trouve. Mes 
 le matter de record recite seroit bone matiere en evidence al inquest 
 a trouver ceo un tenure de chivalry." — {Luttrel's Case, 4 Co. 88 ; Capel's 
 Case, Benl. 9, 10.) 
 
208 The Tenures of Kent [chap. 
 
 example of the abundance of the information 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. II., 
 and the jury found, " that she held in dower at the time 
 of her death these lands and tenements of E. 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 36s. of castleward to be 
 paid to the king yearly at his castle of Eochester, 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 IQd. 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 
 
 n If the manors had been gavelkind she would have had a moiety. 
 The writs of dower 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 Normanville, 2 Edw. I. 37, and a writ of dower 
 for one-third of the manor, " Placitum pro dote Dionysiae de Normanville," 
 Abbrev. Plac. 2 Edw. II. rot. 68. 
 
ix.] Tenure by Barony. — By Castleguard. 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 n. j'35. 
 to that manor and to Great Delce, which were both held 
 by castleguard rents of Eochester 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 (quce sunt de libero feodo). They find also 
 that all the lands and tenements which are gavelkind 
 (quce 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 
 by castleguard, whether these latter were by commutation 
 of services converted into socage or not. In the case of 
 Gouge v. Woodin, cited in the last chapter, it was decided 
 that no change of military land to socage imbued it with 
 customary qualities. The change of which the judges 
 spoke in that case dated only from 4 Jac. I., but in the 
 inquisitions 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 III. P 
 
 Inq. p. m. Galfrid. de Haspale, 15 Edw. I. 25; Cal. Geneal. 379 ; 
 Hast. iv. 170, 173. 
 
 p The manor of Queen Court in Ospringe is -an instance of a very early 
 conversion of a military tenure to socage. In 10 Edw. II. the manor and 
 demesnes were granted to Sir J. Pulteney to hold in capite by the service 
 
 P 
 
210 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. I., 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 VIII., 
 in whose reign Sir Christ. Hales held the manor of the 
 king as of his honour of Dover Castle by 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.) 
 
 i Hast. vii. 403 ; Inq. p. mortem, 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 in 
 capite. (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 Domesday Book respecting Eastwell is valuable as proving 
 
ix.] Tenure by Barony. — By Castleguard. 2 1 1 
 
 Besides the manor and demesnes the Criols held lands 
 in gavelkind 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 1 .) 
 
 The principle that lands held anciently by castleguard 
 cannot become gavelkind, 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 
 family agreement when questions of tenure have arisen 
 upon intestacies. 
 
 The facts of this important case were briefly these. 
 
 Eichard 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 
 Overneys 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 affected 
 by the later disentailing deeds). 
 
 that the Kentish suling consisted of four "yokes" oijuga, and that the 
 Norman carucate was Bometimes equal to the jugum or quarter-suling, as 
 was mentioned before. "Hugh de Montfort holds one manor Eastwell 
 .... taxed at one suling. There are three yokes within Hugh's division, 
 and, the fourth is without, being of the fee of the Bishop of Bayeux. The 
 arable land is three carueates in all." 
 
 r Esch. Bolls, 48 Hen. III. 39, and 34 Edw. I. 37 ; Hast. vii. 409. 
 
 P2 
 
2i2 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 8 . 
 
 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 Lennard v. Sussex and Burridge v. Sussex : — 
 Sampson Lennard (1). 
 
 Henry Lord Dacre (2). 
 
 Eichard Lord Dacre (3). 
 
 Francis Lord Dacre (4). Thomas Lennard (5). 
 
 Thomas, Earl of Sussex (6). Francis Lennard (7). Henry Lennard (8). 
 
 Margaret (9). Anne (9). Catherine (9). 
 
ix.] Tenure by Barony, — By Casileguard. 2 1 3 
 
 body of Eichard 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 saia 
 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 ; 
 
 b. 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 The Tenures of Kent. [chap. 
 
 and for all time whereof the memory of man runneth 
 not to the contrary, were held of the Crown in capite, 
 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- 
 service u . 
 
 t 
 
 4 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. (Eot. Esch. 56 Hen. III. 37, 12; Philipott, 123; Eot. 
 Esch. 23 Edw. I. 42.) Geoffrey de Saye sat in the House of Lords as 
 Baron Cowdham in 28 Edw. III. His son, dying in 49 Edw. III., was 
 found by inquisition to have held Cowdham in capite by military service, 
 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 capite as before. 
 (Hast. ii. 60, 75.) 
 
 Apperfield (originally Appuldre or Appletree Eield), was part of the 
 two knight's-fees in Cowdham above mentioned, and was held of that 
 manor as one knight' s-iee (according to the Testa de NeviT) in the reign of 
 Edward I. In the Book of Aid 20 Edw. III., recording all the Kentish 
 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 Apperfield held of the king (as of his 
 honour of Saye) by service of castleguard. (Lansd. MSS. 369 ; Hast. ii. 
 69.) It is thus described later in the Eeodary of Kent, (35 Hen. VIII). 
 
 Bertrey 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 Bochester. 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 prsedicto Dominio 
 in rusticanam servitutem translatum est," &c.) (Somn. Gav. 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.J Tenure by Barony. — By Castleguard. 2 1 5 
 
 He was not entitled to this advowson by virtue of the 
 settlement made upon Eichard Lord Dacre(3), but by 
 a much earlier instrument, the general wording of the 
 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 his 
 socage lands were disgavelled by the Act of 2 and 3 
 Edw. VI. x 
 
 of a knight' s-fee. It had been held in francalmoigne before the Conquest. 
 The owners of the manor owed services of sergeanty to the Archbishop. 
 (Hast. iii. 146.) 
 
 Chevening was also held by knight-service of the Archbishops. (Inq. 
 post mortem Eob. de Crevequer, 47 Henry III. 33 ; Hast. iii. 106.) It 
 was part of the Archbishop's honour or manor of Otford. The Parlia- 
 mentary Survey taken in 1649 of all the Crown-lands mentions the 
 differences of tenure in Chevening, which preserve the distinction be- 
 tween the villani and lordarii, the gavelkind tenants and the cultivators 
 of the demesnes who at first were inferior to them. There are two sorts 
 of land, yolceland and inland, paying different heriots and quit-rents ; 
 there are also copyholders, the representatives of that semi-servile class of 
 cottiers, eotarii, mentioned above to be chiefly found on Church land. 
 
 The manor of Chevening claimed in the suit of Lennard v. Sussex, is 
 entered in the Book of Aid 20 Edw. III. as one-half of a knight' s-fee. 
 
 Sever. The manor had always been held in knight- service ; it is not 
 specially described in Domesday Book, but must have been included in 
 the description of Great Orpington, of which manor it is a portion. 
 A moiety of it was granted by the Abbot of St. Augustine's in 4 Edw. I. 
 to William de Hever, to hold as the fourth part of a knight's-fee. (See 
 Hast. iii. 191, and Calend. Geneal. 170.) The advowson was of course 
 of the same tenure as the manor to which it was originally appendant. 
 
 * Chepsted was part of Chevening manor, which has been shewn to have 
 been part of Otford manor. It must have been demesne land, inasmuch 
 as it was always held by knight-service. In the Book of Aid 20 Edw. III. 
 mention is made of one-twentieth part of a knight's-fee called Chepsted. 
 The demesne lands of this manor are described by Hasted, iii. 127. The 
 entry in Domesday Book shews that there was a great deal of free 
 demesne land within the manor of Otford held by the Archbishop, and 
 by " three thanes, Taint," his military tenants. 
 
 There were other estates in dispute in this suit, as Hayes, and Overneys 
 
216 The Tenures of Kent. [chap. 
 
 g. In the same way the manor and demesnes of Cheven- 
 ing had been in the ownership of William Eoper, 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 Earl's 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. 
 
IX.] Tenure by Barony. — By Castleguard. 2 1 7 
 
 maining lands, not so held in ancient times, the fact of 
 their having been disgavelled was proved by the inquisi- 
 tions post 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 V 
 
 In the course of this case the inquisition post mortem of 
 Eichard 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 z . 
 
 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 : 
 scilicet gavelkind is nothing but ancient socage, and any- 
 thing originally held by a tenure superior to socage is not 
 
 y Burridge v. Sussex, 2 Eaym. 1292. 
 
 z 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. Geneal. i. pref. 
 
218 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 nomination or advowson soon became hereditary. It 
 passed with the manor, or with such fragment of the 
 manor as the lord might define by a grant. Thence it 
 * Gibs, 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 
 
 as 2Ro. . , . f . . 
 
 Atr. 60. rents or services which are extmguishable and cannot 
 therefore support such appendancy." Being appendant 
 to the demesnes, it must be held originally by the same 
 tenure. If they were gavelkind at first the advowson is 
 gavelkind now, and this whether the advowson remain 
 appendant or be severed. 
 
 But if the manor and demesnes were originally held in 
 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 castleguard 
 rent. It is described as having been held by the great 
 family of Criol "by knight-service of the king in capite 
 by ward to Dover Castle and the repair of a tower there 
 
 t Hast, called Ashford Tower*." 
 
 vii. 528. 
 
ix.] Tenure by Barony. — By Castleguard. 219 
 
 It was always enumerated among the military lands 
 of the county, its owner having paid aid for it as such in 
 20 Edw. III., as appears by the Book of Aid taken in that 
 year, and the Feodary of Kent, as well as the more ancient 
 rolls of knight's-fees in the Exchequer. In 3 Edw. VI. 
 it was granted by the king to be held in socage in capite, 
 a change of tenure which could not make it gavelkind, as 
 shewn by the cases before cited. It would appear from 
 the history of this estate given by Hasted, that on the 
 death of Mr. Eoper in 1754, intestate, the inheritance of 
 this manor, with those of Wall and Esture, descended on 
 his two sons as co-heirs in gavelkind. "But they being 
 infants 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- 
 tion 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 Sturry, 
 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 different tenures having passed in the same course of 
 
220 
 
 The Tenures of Kent. 
 
 [chap. 
 
 IX. 
 
 ownership, while disputes as to partition had reference 
 only to those of the customary tenure. 
 
 The decision in the suit of Lennard v. Sussex above cited 
 makes it clear that this was the case with the castleguard 
 manor of Ashford a . 
 
 a A list of all the knight's-fees held of Dover Castle is given in the 
 Feodary of Kent, and in the Eed Book of the Exchequer, 157 d. 
 
 The total number was thus apportioned among the eight baronies : — 
 
 Constabulana 
 
 
 
 56 
 
 Dover 
 
 
 
 15 
 
 Avrenches . 
 
 
 
 . 21 
 
 Arsic .... 
 
 
 
 18 
 
 Peverel 
 
 
 
 15 
 
 Maminot . 
 
 
 
 24 
 
 Port . 
 
 
 
 12 
 
 Fitz-WLiam . 
 
 
 
 6 
 
 Crevequer . 
 
 
 
 5 
 
 172 
 
CHAPTEE X. 
 Tenures by Sergeanty. 
 
 Grand Sergeanty. — Its varieties. — Petty Sergeanty at first a Military 
 Tenure. — Afterward held to be Socage.— Grand Sergeanties in Kent. — 
 WEST PECKHAM, SEATON, SEORNE, ARC SEE 8 COURT, 
 BILSINOTON, HURST, &c— Petty Sergeanties in Kent.— OXEN- 
 HOATH, ST. MART CRAY, LULLING STONE.— Noel's Case.— 
 OTHAM, BEKESBORNE, &c— Sergeanties held of the Archbishop 
 of Canterbury. — Spread of Socage Tenure. 
 
 Sergeanty; 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 a ." ^ *" 
 
 It differed from ordinary knight-service in the following 
 particulars, via. : — 
 
 a. The services were in general due within the realm. 
 
 I. No escuage was owed by the tenant, and no aid 
 except to ransom the kingf. + Madox 
 
 e. The amount of the heir's relief was different. ' a """" 
 
 » " 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 
 relief."— (Litt. §. 158.) 
 
222 The Tenures of Kent. [chap. 
 
 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 species 
 of socage, the tenant still being liable for the purely hon- 
 orary services, if demanded. 
 
 The definition above given, " where a man ought to do 
 the service to the king in his proper person" Sec, though 
 correct as far as it goes, does not include all grand ser- 
 t Litt. geanties |. A case is cited by Littleton from the Yearbook 
 11 Henry IV., of one who held land in capite by the service 
 of finding a man to serve the king in his wars at any place 
 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 he 
 had a service to do ~by the body of a man, and if he cannot find 
 a man to do the service he himself ought to do UP And this 
 was acknowledged by the other judges. 
 
 From this case Coke drew the distinction that there are 
 two classes of tenants by grand sergeanty, — 
 
 1. Those who must serve in person ; 
 % Co. litt. 2. Those who may send a deputy %. 
 
 In the latter class are those whose service was to carry 
 a banner, to blow a horn on an enemy's approach, to find 
 soldiers for internal war. The distinction appears to be 
 sound, although it contradicts at first sight the usual defi- 
 nition of the tenure : but Mr. Hargreave doubted the pro- 
 priety of the judges' opinion in the principal case b . 
 
 b Spelman recognised the same distinction in his description of the 
 tenure : — " Grand sergeanty is that military tenure in which one holds 
 lands and tenements of the king in capite by the service of doing some 
 honorary office by the body of a man, himself or another (per personam 
 hominii) : and it is called military, not because the service is always to be 
 
 107 a. 
 
x.] Tenures by 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- + Litt. 
 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 
 capite by the act for abolishing feudal tenures, petty ser- 
 geanty still survives as a superior kind of socage §. fosb 1 '"' 
 
 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 || . Hie™"' 
 
 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 were fixed, that also was socage ^[. <fs &ull" 
 
 performed in war, but because as -with all military tenures, the king had 
 wardship, marriage, and relief, from the heir." — (Glossary, Sergantia.) 
 
 " Sargentia minor inter civilia servitia, quse socagia vocant, nume- 
 ratur : et dicitur cum quis ratione feodi regi tenetur annuatim exhibere 
 exiguum aliquid ad apparatum bellicum pertinens, arcum, gladium, cal- 
 caria aurea, &c, qua? juxta Fletee sententiam dimidiam marcam, non 
 excedant." — (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 Beliefs, 28 
 Edw. I. ; Beeves, Engl. Law, i. 38; Fleta, i. c. 11. 
 
224 The Tenures 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 fact that 
 petty sergeanty was socage, or the later conversion of 
 grand sergeanty into socage by the statute of Charles II. 
 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 beirig 
 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 Eobinson's " Gavel- 
 kind ") is very explicit in its language respecting ser- 
 geanties : " "We will that the said lands descend to his 
 firstborn or other male heir, &c, as those descend which 
 he holds ly sergeanty or by military service, entire and 
 without partition among other males d ." 
 
 The sergeanties of Kent are enumerated both in the 
 Testa de Nevil (pp. 205—219), and the Red Book of the 
 * Lit. Exchequer *, with great particularity. There are also 
 notices of the conversion of sergeanties into tenures by 
 simple knight-service, and vice versa. It was forbidden 
 in strict law to aliene lands held in sergeanty in this 
 manner, the king having a right in such cases to resume 
 the land, and this right was occasionally exercised : (" Serr 
 gantia non debet lacerari vel alienari e .") 
 
 d " Quare volumus et firme prrecipimus pro nobis et heredibus nostris 
 quod omnes tense et tenementa, quse prsedictus A. in gavelykendam in 
 feodo tenet et habet in comitatu prsedicto, ad primogenitum suum vel 
 a Hum heredem suum propinquiorem post ipsum, sicut et ilia quae per 
 Serjantiam tenet vel per servitium militare, integre absque partitione 
 inter alios inde faoienda descendant." — {Rob. i. c. 5.) 
 
 c See Placitorum Abbrev., Trin. 7 Johan. 5 ; and -Mic, 38 Hen. 
 III. 18. 
 
x.] Tenures by Sergeanty. 225 
 
 The manor of West Peckham is an example of the dif- 
 ferent varieties of sergeanty. Before the Conquest it was 
 "thane-land," or allodium, held by Earl Leofwin, brother 
 of Harold II. * ; it then became part of the barony of the * Hast. 
 
 v. 57. 
 
 Conqueror's uterine brother, Odo of Bayeux, being de- 
 scribed in Domesday as consisting of two sulings with four 
 tracts of forest (lying in the Weald of Kent). One-sixth 
 of the land was held in demesne. 
 
 In the reign of John it was a sergeanty held by the 
 service of finding a man to carry the king's gos-hawks 
 beyond sea f. t L>t>- 
 
 Soon afterwards it was held as two sergeanties, the first 128 a. 
 by the service just mentioned, the second by the petty 
 sergeanty of finding a ship for the king % and of making j Co. utt. 
 a, money payment at the same time. This part, then, had 
 become socage (not gavelkind), and is afterwards recorded 
 to have been held by homage and fealty of the king, i.e. 
 in socage f 8. § Litt. §. 
 
 . . 117. 
 
 The former portion was found in a trial before the 
 judges itinerant in 21 Edw. I. at Canterbury, to be held 
 by the grand sergeanty before mentioned : it was also 
 found "that of this sergeanty Gilbert de Clare, Earl of 
 Gloucester, holds 200 acres of land worth yearly 100s., 
 and 67s. yearly in rents of assize from the freeholders, 
 
 f " S. de Bendevill tenet Peccham in serjantia, et debet invenire nayem 
 Begi ad servicium suum et offerre Begi tres maroas." — {Testa de Nevil, 
 219.) 
 
 "Peccham tenetur per servicium mutandi unum austurcum Eegi per 
 annum." — (Inq. p. mortem, John de Peccham, 21 Edw. I. 35.) By this 
 inquisition it also appears that John de Peccham left three daughters, 
 of whom the eldest was heir to his land in sergeanty. 
 
 "Bob. Scarlet tenebat ~W. Peckam in capite per homagium," &c. His 
 brother was heir. (Inq. p. mortem 33 Edw. I. 26, and Lansd. MSS. 
 309, 36.) 
 
 Q, 
 
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 
 
 * Harris 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 s . 
 
 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 E<iw. 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 Beaton 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's 
 greyhounds, whenever the king went to Gascony, "until 
 he had worn out a pair of shoes worth fourpence bought 
 at the king's cost h ." The word Vautrarius is read 
 Vautrarius by Coke and Hearne in the Lib. Nig. Scac- 
 carii, and taken to be " the man marching before the 
 king as his fore-foot man." " And this service being 
 admitted to be performed when the king went to Gas- 
 cony to make war was knight-service K" The estate 
 
 b Thus Lord Abergavenny held the neighbouring estate of Yoke's-place 
 as tenant by the curtesy in 1 6 Edw. IV. This manor is mentioned in 
 the Feodary of Kent to have paid aid among the other military lands 
 in 20 Edw. III. (Hast. v. 83.) 
 
 h Blount, Anc. Tenures, 142 ; Hast. vii. 388. 
 
 ' Inq. post mortem John de Criol, 48 Hen. III. 39, and Eio. de Eucksley, 
 11 Edw. II., Co. litt. 69 b. 
 
x.J Tenures by Sergeanty. 227 
 
 was afterwards held by castleguard service of Dover 
 Castle \ 
 
 The manor of Shorne is another example of the same 
 
 A variety of grand sergeanty. Sir John de Northwood held 
 it as one knight's-fee of the Crown 1 , and his heir is re- 
 corded to have held it of the Crown by the service of 
 
 * carrying a white banner or standard to Scotland when 
 the king made war, for forty days *, at his own expense. * Hast. m. 
 The manor of Seale m is said to have been held by a some- 
 what similar tenure at the end of the fourteenth century, 
 viz. by the sergeanty of blowing a horn on the approach 
 of an enemy. This tenure by Cornage was also held to 
 be a variety of knight-service. 
 
 The manor of Bilsington was a grand sergeanty of the 
 ordinary kind. It was part of the barony of Odo of 
 Bayeux, and upon his disgrace was granted to William 
 de Albany to hold as the king's chief butler (pincerna 
 Regis) at his coronation. The manor being divided be- 
 tween co-heiresses, the honorary services were multi- 
 plied. Thus Bilsington Inferior has been held "by carry- 
 ing the last dish of the second course to the king's table, 
 
 k A still more ludicrous service was due from the tenant of Copeland 
 and Atterton, otherwise called Archer's Court in the parish of River. 
 The lands were held in grand sergeanty by the service of holding the 
 king's head between Dover and Whitsand, as often as he should pass by 
 sea between those ports, and have occasion for the service. (Hast. ix. 
 440. See Inq. post mortem of Salomon de Chanuz 31 Edw. I. 34.) 
 
 " Tenuit in capite de domino rege quoddam tenementum apud Ceper- 
 lond et Atterton per servitium tenendi caput ipsius domini regis quo- 
 tienscunque transfretaverit in partibus transmarinis .... (Tenuit etiam 
 diversa tenementa in gavelkind)." — {Calend. Oeneal. 644.) 
 
 He was succeeded by his daughters as co-heiresses. It is said that the 
 right to perform the service was claimed as late as the end of the sixteenth 
 century. {Inq. post mortem Sir Matt. Browne 4 and 5 Ph. and Mary.) 
 
 1 Inq. post mcrtem Roger Northwood, 13 Edw. I. 25. 
 
 - Co. litt. 69 b, 109 b; Harris, Hist. Kent, 274, Philip 309. 
 
 q2 
 
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 
 
 * HaBt.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 knieht's-fee " t. 
 
 Madox 
 
 Exch.453. The Grange (anciently called Grenech) in Gillingham 
 was held , by the service of finding a ship and two armed 
 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. 
 
 These were all grand sergeanties, and therefore knight- 
 service, so that no doubt could be thrown on the freedom 
 of their tenure, and their descent at common law. But 
 the cases of petty sergeanty have sometimes presented 
 a difficulty, soil, that of distinguishing from gavelkind 
 lands those which were turned into socage in very early 
 times. All the petty sergeanties in Kent will be found 
 by inspection of Domesday Book to have been parcels of 
 the baronies there described, and to have been in general 
 held by knight- service of those baronies. 
 
 Being afterwards granted to hold of the Crown by yearly 
 render of something pertaining to war, they were still 
 classed among military lands, but soon recognised to be 
 in reality socage. Yet being sergeanties the rule applied 
 
 " Testa de Nevil, 219. 
 
 ° Inq. post mortem Manasser de Hastings, 5 Edw. I. 7, Testa de 
 Nevil, 219. 
 
x.] Tenures by Sergeanty. 229 
 
 to them, which 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. 
 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 + ib. vi. 
 
 514. 
 
 the sergeanty of paying one pair of gilt spurs yearly. 
 
 Of these Lullingstone 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 " a jib.ii.542. 
 mansion, lands, and woods, with rents of assize in Lulling- 
 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.115. 
 it is numbered among the military lands in the Peodary 
 of Kent, and in the roll Constabularia of the fees of Dover 
 Castle. 
 
 A suit took place respecting the tenure of Elvyland in 
 the twenty-first year of Henry III., which shews that none 
 of the above-mentioned estates were held in gavelkind. 
 
 Dionysia, widow of Eichard Noel, was summoned to 
 answer for deceiving the king's officers by affirming that 
 her husband held his land in gavelkind instead of by 
 sergeanty 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 
 out in the published Alhreviatio Placitorum, 1. 
 
230 The Tenures of Kent [chap. 
 
 held in gavelkind or by sergeanty. And she said that 
 she herself believed it to be gavelkind. 
 
 A deed was produced by which Eichard I. had enfeoffed 
 her husband's brother, from whom the inheritance had 
 descended to her husband, setting out that he was to 
 render for the land one pair of gilt spurs yearly. 
 
 And she said that she had paid the king 100s. to have 
 the custody of the heir, her son, whether the tenure were 
 gavelkind or sergeanty. 
 
 The counsel for the Crown argued that she had falsely 
 called the estate gavelkind, and had deceived the king, 
 for she would never have had the wardship of the heir 
 for so insignificant a price if the king had known that 
 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 deceit, 
 the land not being gavelkind, and also until it should be 
 decided whether such a sergeanty was socage or knight- 
 service. 
 
 The case was soon afterwards tried again at West- 
 minster before the king in council propter difficultatem, 
 and it was resolved, (1) that Dionysia Noel might retain 
 the wardship and marriage without making any further 
 payment to the king; and (2) that she had not wilfully 
 deceived the Court, having produced a deed which clearly 
 set out the services ; and (3) that the wardship and mar- 
 riage were not to be those proper to a gavelkind tenancy, 
 nor to a tenure in socage, but to a sergeanty, i.e. a military 
 sergeanty. 
 
 It is clear enough that the land was not gavelkind. 
 But it is not evident why the judges held it to be a mili- 
 tary tenure, except on the principle above stated, that all 
 sergeanties were at first held to be knight-service. 
 
x.] Tenures by 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 q ." 
 
 The manor of Bekesbourne (which is variously called in 
 ancient deeds Burn, Limingsburn, and Levingsburn) was 
 part of the barony of Odo of Bayeux, and retained by him 
 as part of his own estate. On the confiscation of his lands, 
 this manor with its demesnes was given in sergeanty to be 
 held by finding a ship for the king, when he should go 
 beyond seas, and the payment of three marks *. *J !est 1 a d % 
 
 This tenure has been called grand sergeanty -j - because t Hast. ix. 
 of the apparent uncertainty of the service. 
 
 But Coke said that such a tenure would be properly 
 called Liberum servitium, which is a term never applied to 
 military service. "And it is clearly neither grand ser- 
 geanty nor knight-service, because nothing is to be done 
 
 * William Noel was tie son of Eichard and Dionysia, named above. 
 The verdict was given in the Inq. post mart, of W>. Noel, 7 Edw. I. 47, 
 Calend. Geneal. 286. 
 
 "Tenuit de domino rege in capite per parvam serjantiam videlicet per 
 servitium unius paris calcariorum deauratorum pretii 6d., et est soc- 
 agium." See also 20 Hen. III. 8, Inq. post mort. of Eichard Noel : "Elisa- 
 beth Noel held the land by the same sergeanty in 21 Edw. I., as appears 
 by the pleas of the Crown before the justices itinerant in that year." — 
 (Hast. vi. 514.) Nich. de Grerunde paid aid for it in 20 Edw. III., as one- 
 fortieth part of a knight' s-fee. 
 
232 The Tenures of Kent [chap. 
 
 by the body of a man, nor touching war, but ships to. be 
 *Co. utt. found*," [ad transitum nostrum ad mandatwm nostrum); 
 Bract.' ii. and unless the ships were intended to be supplied in time 
 
 35 
 
 of war, it would not even be petty sergeanty. In no case 
 however could it be gavelkind. So far from being divisi- 
 ble among sons, it seems to have not been divided even 
 among daughters r . 
 
 The manor and advowson of Otham were held in ser- 
 geanty, and are found to have been divided between two 
 brothers, Eobert and "Walter de Yaloignes ; but this was 
 not by any claim of gavelkind, but by a deed of gift, which 
 was produced at Canterbury before the judges in eyre, 
 21 Edw. I. This estate paid aid in 20 Edw. III., as one 
 knight' s-fee, having then been further subdivided as re- 
 -f-Hast. v. corded in the Feodary of Kent t. 
 
 515 ' 
 
 The manor of Eastbridge was held as a petty sergeanty 
 by Hubert de Burgh, who found the king one sparrow- 
 jib. viii. hawk yearly for it, in lieu of all services J. 
 
 277 
 
 The estates called Wavering and Overhill Farm in 
 Boxley were held in sergeanty by the service in each case 
 of "finding a horse of a certain value, and one wallet and 
 a broche, or skin for wine" whenever the king should 
 march with his army to Wales 8 . 
 
 r An action was brought by "William de Aiding, or Galding, and his 
 wife Avioia, against one "W. de Beke, tenant of this estate, to recover 
 forty acres of land as her reasonable share of the inheritance of her uncle 
 lately deceased. The case was decided against her on proof that the 
 land was held in sergeanty and therefore could not be divided. "Lim- 
 ingborne est serjantia Regis et non debet partiri." — (Abbrev. Placit. 
 34, 39.) 
 
 This parcel of forty acres is described in the suit as one carucate of 
 land. 
 
 " ""Willielmus de Longo Campo tenet Ovenell manerium qua? est ser- 
 jantia domini regis . . . . ct debet invenire domino regi unum equum et 
 
x.] Tenures by Sergeanty. 233 
 
 This was a petty sergeanty for the same reason as in 
 
 j-i n • at * Co. litt. 
 
 the foregoing case *. 10 8 b. 
 
 It appears from the Escheat Rolls t that part of the t Cai. Ge- 
 
 rr . neal. 640. 
 
 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 
 any of them were considered to be of a customary nature. 
 
 Wilmington, an estate in Boughton Aluph, was also 
 held in petty sergeanty, soil, by finding a meat-hook for 
 the king on all visits to the superior manor of Boughton 
 Aluph %. It is entered in the Testa de Nevil as a sergeanty J Hast.vii. 
 held of the Earls of Boulogne by the service of being the 
 Earl's 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 
 tenures were in reality nothing but simple knight-service 
 
 unum saccum cum brochia in exeroitu "Walliae." — {Rot. Hundred, i. 215, 
 3 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 fm. 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, Yielston, 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 Earningham. 
 *Hast.viii. 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 to 
 Brasted particularly, in the proceedings against the Earl 
 of Sussex ". 
 
 The extent in past times of the tenure of petty sergeanty 
 has this importance in our own time, that it has tended 
 
 * Somner's Canterbury, ii. 20 ; Dugd. Monasticon, by Ellis, vol. i. ; 
 Cant. Appendix, Harl. MSS. 357; Hasted, xii. 535, 540. 
 
 "Non praetereundum est specialia quaedam servitia etiam privatis ex- 
 hibita serjantias olim nuncupatas." — (Spelm. Gloss. Serjantia; Nichols 
 Britton, ii. 5, 10.) 
 
 u The manors which were retained by the archbishops in their own 
 hands are thus enumerated by Hasted : — " Aldington, Bexley, Bishops- 
 bourne, Boughton, Charing, Dale, Gillingham, Liming, Maidstone, North- 
 fleet, Otford, Petham, Eeculver, Saltwood, Teynham, "Westgate, "West- 
 halimote, Wrotham, and "Waltham." — (xii. 547.) 
 
 These manors with their demesnes, &c, were held by barony, and in 
 the hands of under-tenants by knight-service. 
 
x.] Tenures by Sergeanty. 235 
 
 to propagate the notion that all land in Kent is gavel- 
 kind. 
 
 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 eastleguard 
 were changed into a tenure by rent-service to guard the 
 castles. By this change in most cases they became socage. 
 
 Thus the 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- 
 tinguishing between the socage which is gavelkind, and 
 the socage which is not. 
 
CHAPTEK XI. 
 Tenure 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 WEST- 
 WELL. — Early notices of the tenure. — Suit of Be Bendings v. Prior 
 of Chrwtchweh. — Eeal nature of the claim. — Charter of Edward the 
 Confessor. — Eemarks on the case. — Opinion of Somner. — Confusion 
 between Socage and Francalmoigne. — Manor of LITTLE CBTABT, 
 8EXTBIES,LINS0BE. — Manors originally in Francalmoigne cannot 
 become Gavelkind.— SEELB WICS, WAREHOBNE. 
 
 We may now turn to the history of those numerous 
 estates in Kent which anciently were held in free alms or 
 francalmoigne. 
 
 An earlier chapter shewed the opposite nature of tenures 
 in francalmoigne and gavelkind before the Conquest. The 
 one was socage, the other " free from all earthly service," 
 the highest among the high allodial tenures. It was shewn 
 also that in each manor owned by the Church the de- 
 mesne lands were held in free alms allodially, and the 
 tenemental portions alone charged with socage rents and 
 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 
 
chap, xi.] Tenure in Francalmoigne. 237 
 
 a common phrase, these are among " the ancient knight- 
 service lands of Kent." 
 
 But we have now to consider the nature of those manors 
 which were not feudalized, but left to retain their ancient 
 freedom 11 , and to remain as nearly allodial as the law 
 would suffer, i.e. to be held in capite in francalmoigne. 
 
 Of the Church lands held in Kent by the Archbishop 
 of Canterbury, the Bishop of Bochester, the Abbots of 
 St. Augustine, Battle, and Ghent, aud the Briors of Can- 
 terbury and Bochester, all but the estates of the priors 
 last named were feudalized in the manner above mentioned. 
 Even the lands of these priories were included by the 
 Domesday commissioners in the baronies of the archbishop 
 and bishop respectively; those of the Brior of Christ- 
 church were entered under the title of terra monachorum 
 Archiepiscopi, the others under terra episcopi Roffensis. 
 
 But we have also seen that shortly after the completion 
 of the Survey an ancient practice was revived, and the 
 estates of the priories were separated from those properly 
 .belonging to their respective sees, and the monasteries 
 obtained permission to retain their ancient tenure of franc- 
 almoigne. This was now a tenure properly so called, 
 although neither fealty nor temporal services were re- 
 served *, for since the Conquest all lands and tenements * Co. utt. 
 
 1 b 94 b. 
 
 are holden either mediately or immediately of the Crown; 
 but the tenure is as nearly allodial as is possible, and as 
 free from feudal services or their modern equivalents as 
 in the ages before the Conquest. The opposition between 
 the natures of francalmoigne and gavelkind is still as 
 marked as ever. 
 
 Of the whole mass of allodium in Kent, part was bur- 
 dened with new services, and in some cases, a little later, 
 a "Francalmoigne est le pluis haute service." — {Co. Utt. 95 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 francalmoigne, 
 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 b , " for none can 
 so hold if there be expressed any manner of certain ser- 
 
 * Co. utt. v i° e that he ought to do *." 
 
 96 b " In the same way gavelkind ex vi termini implies fealty, . 
 
 rent- service, and an ancient power of distress in the lord 
 
 b See Ail. 1 3 Hen. IV. Eent reserved on a francalmoigne tenancy, and 
 a claim made on the abbot for 10s. rent by reason of bis tenure. Claim 
 discharged because such a tenant cannot owe such a service. 
 
 " Un don en fraunkalmoign rend certain rent par an — laquel ne puit 
 estre dit fraunkalmoigne." — {Fitzh. Mesne, 109. See also Mic. 4 Edw. IT. 
 35.) 
 
 Since the Reformation the uncertain spiritual services have been in 
 some cases changed to certain spiritual and charitable services, but this 
 does not affect the main argument. 
 
 "Albeit the tenure in francalmoigne is now reduced to a certainty, yet 
 seeing the original tenure was in francalmoigne, and the change is by 
 general consent by authority of parliament, whereunto every man is party, 
 the tenure remains as it was before." — (Co. Utt. 95 b. ; 2 Edw. VI. c. 1 ; 
 1 Eliz. c. 2, 12 Car. II. c. 24.) 
 
xi.] Tenure in Francalmoigne. 239 
 
 of the manor. In. other words it is socage, and therefore 
 Eobinson " 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 
 censive 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 'gavel' is conversant; 
 those lands namely held in allodio, in francalmoigne, in 
 knight-service, in frank-fee °, and the like *." * Somn. 
 
 Gav 35 • 
 
 And in another place he shews that the words " tenendum Harris, ' 
 in gavelkind could not have consisted with a tenure in en ' 
 francalmoigne, which excludes the return of all but divine 
 services and burdens f ." (In another place he confuses + 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 
 by an eminent authority on Kentish tenures (Mr. Bell) : — 
 
 " Are there not some estates in Kent which were never gavel- 
 kind? 
 
 " There is one description of land on which the question has 
 arisen, viz. monastery lands, which were not held in gavelkind but 
 in free alms." 
 
 The rule, then, which is now to be illustrated, may be 
 thus expressed: — 
 
 All manors, and therefore all demesne lands, advowsons, 
 and rents-service appendant to the seignory, which were origi- 
 
 c "Frank-fee" in Kent usually means all that is not gavelkind; when 
 used as above in a more limited sense it appears to mean free land eon- 
 verted into socage before the Act 12 Car. II. c. 24. 
 
240 The Tenures of Kent. [chap. 
 
 natty 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 Eeformation. 
 
 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 a . 
 
 In the same way, if the king becomes seised of gavel- 
 kind land jure coronce, 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 Custumal 
 only mentions lords of manors held by military service 
 
 d Lushinglon v. Llandaff, 2 New Rep. 491. 
 
xi.] Tenure in Francalmoigne. 241 
 
 ("a seigneur que tiene per fee de hawberke ou per ser- 
 jauncye"); 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 prae 
 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 e ." 
 
 Eobinson further quoted from "an ancient book of 
 4 Edw. II., in a nuper obiit, that if lands, which have been 
 departible and departed come to the lord by escheat, they 
 shall not be partible in his hands," or in those of a pur- 
 chaser from him("vel in manibus alicujus alius perqui- 
 sitoris non possunt partiri"). 
 
 But it has long been settled that the unity of possession 
 by any lord (whether holding in francalmoigne, in chivalry, 
 or in socage) " cannot hurt the customs of gavelkind *." * Eeiiw. 
 
 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 
 Kentish Custumal asserts that "the lord shall hold the 
 land as part of his demesnes." 
 
 e Itin. Kane. 21 Edw. I. 35, and Hil. 26 Edw. I. 21, B. E. 
 
 E 
 
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 Kent, 
 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 presumption, 
 that the land lying in Kent is gavelkind till the contrary 
 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 Eichard 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"; mount will have or demand of him for the same tenements ; and 
 Co. utt. if he doth not acquit him, but suffereth him to be distrained, Sea., 
 
 P. N.' B. ne sna ll have against his lord his writ of mesne, &c * 
 135. v 
 
xl.] Tenure in Francalmoigne. 243 
 
 "And not of services only, as fealty, homage, rent-works, &c, 
 but also of improvement of services ; as if he (tenant in francal- 
 moigne) were distrained for relief, Aid pour fille marier, Aid pour 
 fairefils 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 Peckham. 
 It was thus described in Domesday Book among the lands 
 of the Bishop of Bayeux : " Ealph, 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 
 men 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 
 by the bishop's tenant, and therefore we find that u all 
 
 e2 
 
244 The Tenures of Kent. [chap. 
 
 the lands in this borough pay quit-rents," i.e. are gavel- 
 
 * Hast. v. kind * 
 102. 
 
 At the dissolution of the monasteries the king resumed 
 all the francalmoigne tenements of the smaller monasteries, 
 and of the two great priories of Christchurch in Canter- 
 bury, and St. Andrew's in Kochester. 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 Eochester, to 
 hold as before in francalmoigne (in puram et perpetuam 
 eleemosynam). The services due to him, his heirs and suc- 
 cessors, were somewhat changed ; instead of prayers for 
 the souls of the donor's family and successors, the tenants 
 are bound to carry out the donor's charity, by performing 
 divine service, educating children religiously, and dis- 
 pensing 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 their 
 revenues to the building and repairing of roads and 
 bridges f . 
 
 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 
 
 f " Ut in posterum ibidem sacrorum eloquiorum documenta et nostra 
 salutiferse redemptionis sacramenta pure administrentur, bonorum morum 
 disciplina sincere observentur, juventus in Uteris liberaliter instituatur, 
 senectus viribus defeota . . . rebus ad victum necessariis condigne foveatur, 
 ut denique eleemosynarum in pauperes Christi elargitiones, viarum pon- 
 tiumque reparationes, et cetera omnia generis pietatis ofiicia illinc exu- 
 beranter in omnia vicina loca longe lateque dimanent . . . dedimus et 
 concessimus, &c. habendum tenendum et gaudendum . . . decano et capitulo 
 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 Cathedrals, 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 6 ; but the 
 Kentish tenants, of whom we are speaking, were found in 
 the reign of King John to have possessed the privilege 
 from time immemorial h . 
 
 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; Mio. 45 Edw. III. 118; 24 Edw. III. 71 ; Dyer, 109. 
 h Abbrev. Placit. Coronce, 56, Pasoh. 9 Johan. 2. Cant. 
 
246 The Tenures of Kent. [chap. 
 
 but francalmoigne : and the law, according to equity and 
 
 justice, gives this fealty to the lord of whom the land was 
 
 * Co. lit*, before holden*." In the same way a transfer of the 
 
 98 a, 99 . ge -g nor y. conver t e( i 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, Gavelkind." 
 A copy of the proceedings had previously been taken by 
 t 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 Hasted and other historians. 
 
 The property in dispute consisted of the manor of 
 "Welles, or Westwell, 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 villani 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 
 cibum, i.e. for the use of their refectory*. *Hast.vu. 
 
 " Their title," said Hasted, " seems to have been very 413 ' 
 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. 
 
 1 " Carta regis Edwardi Confessoris de terris in Chertham confirmans 
 Ecelesise Christi omn.es terras quas ante eontulerant reges episoopi comites 
 magnates. . . . Sequuntur terrarum nomina (ex quibus quaedam erasa)." 
 — (Cotton. MSS. Claud. A. 3, 5, copied in Kemble's Codex Diplomaticus, 
 and Ellis' Dugd. lion. 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, 
 Adisham, Chartham, Godmersham, Westwell, East Chart, Great Chart, 
 "Werehorne, Apledore, Mepham, Cowling, Earningham, Holingborne, East 
 Earleigh, and East Peckham. 
 
 It has been mentioned before that the freedom of the tenure of Adisham 
 became proverbial, the letters L. S. A. (lilerum 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 (cuj'us hereditas manerium illud fuit). 
 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 
 
 *9Co.i23 ; into socage*, as we have already noticed. 
 
 98a. ' This Matilda de Westwell married Eobert de Yaloignes, 
 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-farm. 
 
 This appears not only from the legal proceedings below 
 recounted, but from an entry in the Close Polls, 17 Johan. 
 m. 6 k , to this effect. 
 
 " The king to Hubert de Burgh, high justiciary of England, &c. 
 We command 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 1 ," &c. 
 
 k p. 254 of the volume of extracts published by the Record Com- 
 
 missioners 
 1 
 
 Eot. Claus. 17 Job., m. 6 : "Rex Hub. de Burgh justiciario An- 
 gliae, &c. Mandamus vobis quod habere fuciatis Priorem et conventum 
 S. Trinitatis Cantuar. firmam suam de manerio de Welles, quam tenetis 
 in manu nostra eo quod Rob. de Valoignes qui fait eorum. firmarius 
 ejusdem villae est cum immicis nostris, et nihilominus illam eis habere 
 faciatis licet ipse Robertus cum eis fuerit. Teste me ipso apud Col- 
 chester xix. die Martii." 
 
xi.J Tenure in Francalmoigne. 249 
 
 This Eobert de Yaloignes was restored to favour early 
 in the next reign, as appears by the Close Eolls of 
 9 Hen. III., 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 m ." 
 
 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 n , 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 Bendings, claiming 
 one-half the manor, as her free-bench or dower in gavelkind. 
 
 "Pleas of the Crown in divers counties, Trin. 25 Hen. III., 
 r. 49. 
 
 " Burgia, the widow of Peter de Bendings, 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 
 
 m "The original deed is in the Surrenden library, with the seal 
 annexed, on which is the legend Sigil Petri de Bendingies." — {Hast. 
 vii. 414.) 
 
 - Eot. Claus. (p. 205) 11 Hen. III. m. 25 in dor so : " Stephanus 
 Haringod attornat Johannem de Hokering contra Priorem S. Trinitatis 
 Cantuar. 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. petual alms (francalmoigne) *." 
 
 94 b- " 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 Valoignes, 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 
 Yaloignes had not held a moiety as his customary free-bench or 
 curtesy p ." 
 
 "Placita coram Rege in Divers. Com. Trin. 25 Hen. III. Eot. 49." 
 In which are found " Placita et Assisse Capte apud Cantuar. in com. 
 Kane, in Octav. S". Trinitatis anno regni Regis Henrici fil. Johannis xxv to . 
 Coram "W. de Ebor Prseposito Beverley et sociis suis." 
 
 Memb. 10, Calehull. "Burgia quae fait uxor Petri de Bendinges petit 
 versus Priorem S*. Trin. Cantuar. medietatem manerii de Westwell ut 
 francum bancum suum, &c. Et unde prsedictus Petrus earn dotavit, &c. 
 Et Prior venit et dicit quod ipsa non potest petere medietatem praedicti 
 manerii nomine franci banci quia dicit quod habet manerium illud de 
 dono prsecessorum domini Regis qui manerium illud aliquando tenuerunt 
 in manu suei, et qui illud dederunt Deo et EcclesifE S"\ Trinitatis adeo 
 libere sicut illud tenuerunt in puram et perpetuam eleemosynam. Ita 
 quod nunquam manerium illud postea partitum fuit nee est partibile. 
 Quia dicit quod dominus Rex qui manerium illud dedit praBdecessoribus 
 suis non tenuit illud nomine Gavelkindeis." 
 
 p " Et Burgia dicit quod prsedictum manerium GaveliMnd et partibile 
 
xi. J Tenure in Francalmoigne. 251 
 
 The matter was referred to a jury of knights, not gavel- 
 kind tenants, who delivered the following full verdict in 
 favour 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 Kobert de Yaloignes 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 Bendings. 
 
 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 11 , &c. 
 
 est. Ita quod quidam Rob. de Valeines qui duxerat in uxorem Matilda 
 de "Welles, cujus hereditas manerium illud fuit, post mortem ipsius 
 Matildse habuit nomine franci banci medietatem illius manerii, et Petrus 
 vir ipsius Burgise habuit aliam (illam, Somner wrongly) medietatem. 
 Ita quod Harveus Bellet consanguineus ipsius Burgise postquam idem 
 Petrus desponsaverat ipsam Burgiam redemit •illam medietatem per 
 deuarios suos de prsedicto Eoberto ad opus ipsorum Petri et Burgise. Et 
 quod ita sit offert domino Eegi xx s per sic quod inquiratur, &c. 
 
 " Et Prior dicit quod prsedietum manerium non est Gavelikind, nee 
 partibile, nee prsedictus Bobertus unquam habuit ibidem medietatem 
 prsedieti manerii ut de franco banco suo, et quod ita sit ponit se super 
 patriam. Et ideo fiat in juramentum." 
 
 q "Juratores de consensu, etc. veniunt et dicunt super sacramentum 
 suum quod praedictum manerium fuit quondam manerium liberum prse- 
 deoessorum domini Begis et quod datum fuit Deo et ecclesise S. Trin. in 
 liberam puram et perpetuam eleemosynam. Ita quod manerium illud 
 nunquam fuit Gavelkind nee partitum fuit nee est partibile. Nee prse- 
 dictus Eobertus unquam habuit medietatem prsedieti manerii nomine 
 
252 The Tenures of Kent [chap. 
 
 There are several points in this case which require 
 notice, besides the broad conclusion. 
 
 1. 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 born 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. Lushington v. 
 Llandaff does 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 
 Eobinson for the simple reason that he had already defined 
 gavelkind to be ancient socage and nothing else, and franc- 
 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 authority 
 of the case had never been called in question, nor was 
 there even an authorized record of it, so that there was no 
 reason to discuss its validity. There are two other things 
 to be remembered. First, that when Robinson's treatise 
 
 franci banci. Sed dicunt quod post mortem prsedictae Matildse tenuit 
 idem Eobertus totum manerium cum custodia prsedicti Petri. Ita quod 
 prsedictus Herveus dedit ei quandam summam pecuniae pro custodia ilia. 
 Et ideo consensum est quod Prior teneat sine die. Et Burgia in miseri- 
 cordia pardonatur." 
 
xi.] Tenure in Francalmoigne. 253 
 
 was written (to use his own words) "it was a common 
 mistake among strangers to the county that there now 
 remains in it but little land of the nature of gavelkind ;" 
 whereas now it is generally assumed that the whole of 
 Kent is subject to the custom. But the most that this 
 eminent 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 
 custom, 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- 
 service, but on the reading of a record of the date of 
 18 Edw. II. and of the Stat. 18 Hen. VI. 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- 
 cause the king, who gave it to the prior's predecessors, 
 had not held it as gavelkind, (nomine gavelkind)." It has 
 been shewn in the earlier chapters that allodium held 
 before the Conquest by the Crown or the Church was of 
 the very opposite nature to that of gavelkind. Such is the 
 true meaning of this plea. Somner, however, drew from 
 it "this double consectary (admitting the plea for law). 
 That the king may hold land in gavelkind. That the 
 king 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 
 hands at least, whom the religious men enfeoffed with 
 
 it *." It does not appear that he knew the gift to Christ- * Somn. 
 church to have been made before the Conquest. 
 
 3. The jury found that the estate in dispute had an- 
 
254 The 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 "liberum," which is important. Not that 
 we know of the kings before the Conquest possessing any 
 " gavelkind manors," which seem to have been created out 
 of ancient socage lands between the introduction of the 
 feudal system and the enactment of the Statute Quia 
 Emptores, 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 the 
 
 * 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 be 
 either socage or knight-service, a broad division which is 
 perfectly correct as to fey- tenures, " but leaves still behind 
 the other species, of a spiritual nature, namely, francal- 
 
 t steph. moigne j\" 
 
 Blackst. 
 
 i. 226. Among the tenures which are " species of socage, or land 
 
 r See the conclusion of his treatise: "Many other things offer them- 
 selves to his discourse that would treat of gavelkind to the full, but they 
 are (I take it) mostly points of common law, which because they are not 
 only out of my profession, but beside my intention too, I will not wade 
 or engage any further in the argument." — {Gav. 170.) 
 
xi.] Tenure in Francalmoigne. 255 
 
 said to be of socage kind," Somner 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 
 hand, 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. 36. 
 
 He appears to have been thinking of the passage in 
 Eleta B , on which Littleton grounded his remark that 
 " every tenure which is not tenure in chivalry is a tenure 
 in socage {." "Here," said Coke, "he meaneth temporal X §H8 ; 
 services and not francalmoigne, as by the examples he put is 86 a. 
 manifest, and as in the proper place shall appear more at 
 large S." §Co. utt. 
 
 & # s . 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 
 rule 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, without any further claim made by the families of the 
 former tenants. In the roll of proceedings De Quo Warranto, 
 taken 7 Edw. I. and 21 Edw. I. (and lately published by 
 the Eecord Commissioners), Westwell appears as one of the 
 
 8 " Ex donationibus autem, feoda militaria vel magnam serjantiam non 
 continentibus, oritur nobis quoddam nomen generale, quod est soeagium." 
 — [Fleta, i. c. 8, and iii. c. 14; Dalrymple, Feuds, 37; Wright, Ten. 211 ; 
 Somner, Gav. 35, 37, 38, 40, 47, 114, 150, 178.) 
 
256 The 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 lands, 
 which was confirmed by charter in 1 Edw. II. After the 
 dissolution the estate was granted to the Archbishop of 
 
 * Hast.vii. 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 Bendings. It was there- 
 fore held in socage by him and his heirs, though the supe- 
 rior lordship was still in francalmoigne. The manor is 
 
 t ibid.457. still held by these tenures f. Even an alienation by 
 tenants in francalmoigne dating soon after the Conquest 
 did not make the land gavelkind, but only socage de- 
 scendible as at common law ". 
 
 ' Placita de Quo Warranto, 325. The prior was found to have enjoyed 
 from time immemorial " soo and sac on strande and stream, in wood and 
 field," infangthief, freedom from toll, jurisdiction over villeins and other 
 tenants, freedom from land-tax, the right of imposing fines for a long list 
 of offences, freedom from payments in lieu of military service, and other 
 extensive privileges. 
 
 u A very ancient instance of this is given by Hasted in his account of 
 an estate named Sextries in Nackington. 
 
 " This was part of the ancient possessions of St. Augustine's Abbey. 
 It was demised in the year 1046 to Turstin, one of the abbot's household, 
 and was afterwards sold and alienated from the monastery, which ac- 
 counts for its not being mentioned in Domesday Book. But in the reign 
 of Edward I. it appears by the roll of knights'-fees to have been again in 
 the possession of the abbot, for Natindon is mentioned as his lordship." 
 —{East. ix. 293.) 
 
 The entry in the Testa de Nevil is important only thus far. Here was 
 an estate once held in francalmoigne, then alienated about the time of the 
 
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-Lees in 
 the reign of Edward I.* " There are, however, earlier * Haat. vi. 
 notices of its tenure. 
 
 In 26 Hen. III. the Abbot of Faversham was summoned 
 for requiring Eoger Malmains 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 prsedicta 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 
 Hardres, was alienated before 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. 
 
258 The Tenures of Kent. [chap. xi. 
 
 Another illustration of the rule (that these ancient franc- 
 almoigne lands are not gavelkind) appears in the history 
 of the manor and demesnes of Warehorne, 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 7 , and did 
 not become socage before the passing of the general statute 
 12 Car. II. c. 24. 
 
 y Hast. viii. 367. Held by knight-service of the archbishop in 12, 13 
 John, Testa de Nevil; Eed Book of the Exchequer, p. 132; Ing. post 
 mortem, Richard de Bedford, 17 Edw. I. 20. 
 
CHAPTER XII. 
 
 Tenure in Francalmoigne (continued). 
 
 Case oiZusMngtonv. Zlcmdaff.-Tith.es of RODMERSB'AM'.—Kivow- 
 son of TTPCEURCH.— Manors of GORE, DENSTEB, KINGS- 
 DOWN, POZTON— Ecclesiastical Corporations holding lands by 
 Military Service.— CANONS' COURT.— Rectory of TOWN SUT- 
 10N— Manor of HONICHIZD, RIVER, WEST ZANGDON— 
 Queen Ediva's gift in Eree Alms.— MONKTON, AZDINGTON, 
 STOWTING, EAST ZENHAM, EAST FARZEIGS.— Dispute 
 as to Tenure.— EA ST PECZEAM.— Absence of Quit-rents from 
 Demesne Lands. — Tenure by Divine Service. — Somner's Theory. — 
 Harbaldown Hospital. — Total amount of lands held in Francalmoigne 
 in Kent. 
 
 The case of Doe and Lushington v. Llandqf*, which has * Bos. and 
 already been several times mentioned, has been cited Eep/491. 
 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 
 Eobinson's treatise expressed a doubt whether the autho- 
 rity of the judgment in De Bendings v. Prior of Christ- 
 church was not impaired by this modern decision. 
 
 But a very brief examination will shew that the doubt 
 has no solid foundation, and that the reason of the older 
 judgment is in strict accordance with that of the more 
 modern. The application of the same rule produced dif- 
 ferent result in the two cases, because the circumstances 
 were utterly different. 
 
 An ejectment was brought in the Common Pleas, Trin. 
 1807, to determine the tenure of the rectory and tithes of 
 Eodmersham, part of the estate of the Rev. James Lush- 
 ington, then lately deceased. The rest of his estate in 
 
 s2 
 
260 The Tenures of Kent [chap. 
 
 Tong, Bapchild, Milton, Eodmersham, 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 Eodmersham was part of the king's manor 
 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 superior 
 manor did not extend into the parish of Eodmersham. It 
 was therefore held with justice to be gavelkind. 
 
 The manor and all the lands within it being of this 
 nature, it is clear that the advowson was also held in 
 gavelkind, being of the same tenure as the demesne lands 
 of Eodmersham manor. 
 
 It was shewn that Henry II. gave the church of Eod- 
 mersham to the Knights Hospitallers, being then a chapel 
 
 * Hast. vi. dependent on the mother church of Milton *. That the 
 120. 
 
 knights appropriated it m the reign of Henry IV., a.d. 
 
 1408, to their preceptory in "West Peckham, where they 
 
 held lands by military service. That at the dissolution of 
 
 the hospital in 33 Hen. VIII. the fee of the rectory of 
 
 Eodmersham, with the advowson of the vicarage, was 
 
 taken by the Crown, and granted three years afterwards 
 
 to John Pordage, Esq., to hold in capite by knight-service. 
 
xii.] 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. 
 
 Eeliance 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, 
 
 J Comm. 
 
 the Court that — Law, 254. 
 
 " The lands belonging to this rectory cannot be distinguished 
 from other lands in Kent. The law of gayelkind is unlike 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 
 according 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 tbat 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 rules of descent 
 at common law." 
 
 * Book i. A similar case was quoted by Eobinson * from Hughes' 
 "Abridgment:" — 
 
 " A man was seised of tithes of corn arising out of the manor 
 of T>, which is borough-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 Lushington v. Llandaff^ was not whether lands originally 
 held in'francalmoigne can be gavelkind, but this, whether 
 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 
 Hospitallers held this land in francalmoigne, but not 
 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 
 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 tenant 
 acquired them ;" and if a claim had thereupon been set up, 
 that the common presumption as to lands lying in Kent 
 should not apply. This is not merely a reductio ad absur- 
 dum of the argument used in the case, but it is the argu- 
 ment itself as reported. What then is to be made of this 
 sentence in Comyn's "Digest," "Francalmoigne lands sur- 
 rendered at the dissolution of monasteries are gavelkind : 
 
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 : 
 ' Lands of which the original tenure is not known, or which, 
 being gavelkind, were granted in francalmoigne, and sur- 
 rendered, &c. are gavelkind.' 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 Upchurch (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 
 Gare were held in gavelkind by Eoger de Leybourne, who 
 indeed disgavelled it by special permission of the king 
 among his other lands and tenements in Hartlip, Bain- 
 ham, and Upchurch, the charter of permission remaining 
 among the Patent Bolls. 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 * Hast - vii - 
 to hold by knight-service in capite, and it has always been Monastic. 
 
 vi. 653. 
 
264 The Tenures of Kent. [chap. 
 
 treated as gavelkind, having, according to Hasted, been di- 
 vided by co-heirs male in 1773 a . 
 
 The manor of Kingsdown, by Sittingbourne, affords an- 
 other example of the rule laid down in Lushington v. Llan- 
 daff. 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. vi. coming to rebut the common presumption. Accordingly * 
 it was divided among co-heirs in 1781. 
 
 Mere ownership by an ecclesiastical corporation is of 
 course no proof of francalmoigne tenure. The original 
 grant may have well been in perpetual alms only, which, 
 as we have seen, was consistent with the payment of gavel- 
 kind rents. Or it may have been a grant reserving mili- 
 tary service, as the manor of Polton was given to the 
 Abbey of St. Badigund, Bradsole, to hold by guard of 
 
 ^Monastic. Dover Castle H. Several abbots and priors were tenants 
 
 vi. 939 ; L 
 
 Hast. ix. by castleguard rent of the same castle, and most of the 
 Knights Hospitallers' land was held by military service. 
 
 We cannot assume that any estate was held in francal- 
 moigne, and whatever the tenure of the ecclesiastical cor- 
 
 a Hasted does not account for the whole of the estate. Part doubtless 
 was held at common law if it is correctly said, that "E. Bovehatch, 
 being convicted of felony, forfeited his lands in Densted." If they were 
 gavelkind they would not have been forfeited, by the maxim, "the father 
 to the bough, and the son to the plough." The case is different if they 
 were forfeited for treason. 
 
 " The manor was originally in knight-service, and formed part of the 
 barony of Hugh de Montfort at the Conquest. No demesnes are described 
 in Domesday Book, therefore all the land was gavelkind. Other gavel- 
 kind lands in the same parish were granted in francalmoigne to this 
 abbey as early as a. d. 1191. 
 
xii.] Tenure in Francalmoigne. 265 
 
 poration may have been, the common presumption will be 
 applied, unless proof be produced of a tenure superior to 
 socage, and as ancient as the Conquest. 
 
 When such proof is given, the presumption falls to the 
 ground. Else we are driven to imagine a customary- 
 tenure created at the time of the dissolution of monasteries, 
 for it is manifestly impossible that the same estate should 
 have been held from the Conquest to the Eeformation in 
 a superior and an inferior tenure (e.g. francalmoigne and 
 socage) simultaneously. 
 
 For these reasons inter alia we cannot agree in the 
 doubt expressed by the learned editor of Eobinson's 
 treatise (last edition) to this effect : " The rinding of the 
 jury in De Bending s v. Prior of Christchurch, appears to 
 be at variance with the decision of the Court of Common 
 Pleas in Lushington v. Llandaff*P * p. 35. 
 
 The proof just mentioned may be given in different 
 ways, either by shewing an original and continuous tenure 
 in francalmoigne, or if that be impossible, then an original 
 military tenure before the gift in francalmoigne. The 
 absence of this last evidence was the cause of failure in 
 the argument based on an early ownership of the advow- 
 son of Eodmersham by the Knights Hospitallers. 
 
 Any history of Kent will furnish instances where such 
 proofs could be produced. Thus Canons' Court, in "Wat- 
 ringbury, was of ancient military tenure, and was given 
 in free alms to the Prior of Leeds in the reign of 
 Henry III. f Again the manor of the rectory of Town ■)■ Hast. 
 Sutton, with the advowson, was originally appendant to 
 the superior military manor of Town Sutton ; and in 
 9 Eich. II. was granted to the same prior in francal- 
 moigne, whose successor held it at the Eeformation J. jibid.373. 
 Another 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 
 
 *voi.viii. 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 are 
 often useful at the present day in determining the original 
 limits of the demesne lands. 
 
 Thus, too, the manor of Eiver was anciently held by 
 knight-service. It escheated to the Crown in the reign 
 of King John, and was divided into three parts. One- 
 third was given in francalmoigne to the Maison Dieu at 
 Dover, another in the like tenure to the above-mentioned 
 abbey of St. Eadigund at Bradsole, and the remaining 
 third to Solomon de Chanuz to hold in grand sergeanty. 
 We can deduce the freedom of the first two portions from 
 the fact that the remaining third, called the manor of 
 Archer's Court, was descendible to the eldest son. See 
 inquisition post mortem of Solomon de Chanuz quoted 
 t Hast. ix. above in the chapter on grand sergeanty f. One fraction 
 ,of a divided manor cannot be held at common law and 
 the rest in gavelkind, though the manor and its included 
 lands may be of different natures. 
 
 The manor of West Langdon (anciently called Monks 
 Langdon) was held originally by the military tenure of 
 castleguard, being part of the barony of Folkstone. In 
 
xii.] Tenure in Francalmoigne. 267 
 
 the year 1192 it was granted, with the advowson, in 
 francalmoigne 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 
 such facts 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 Cottdnian 
 Librarv t • + {Kembie 
 
 . Cod. Dipl. 
 
 It included the whole or portions of the manors follow- vi. aa. 
 ing, viz. Aldington, Mepham, Cowling, East Lenham, East 
 Farleigh, East Peckham, Monkton, with certain forest-land 
 in the Weald of Kent. The demesne lands of these manors 
 were 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 Thanet, 
 and Mepham, were held by the Priors of Christchurch in 
 francalmoigne until the Keformation, and were then given 
 to the Dean and Chapter of Canterbury to hold in the 
 same tenure ±, bv whom the extensive demesne lands are t Hast. Hi. 
 
 *' J 356, viu. 
 
 let for terms of years, and the quit-rents from the gavel- 25a 
 kind tenants received. 
 
 The portion of land in Cowling is not particularly de- 
 scribed in Domesday Book, but the charter of free 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 c . 
 
 The manor of Aldington, including at the Conquest 
 those of Stowting and Limne, was likewise reserved by 
 the archbishops, and the tenure changed from francal- 
 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, manor of East Greenwich in 5 Car. I. * d The free tenure 
 
 Per. 534 ■ 
 
 Hast. viii. of these demesnes is shewn by the Escheat Eolls, e.g. 
 those of Limne were held by knight-service and not in 
 gavelkind by Bertram de Criol, 34 Edw. I. 37. According 
 to Domesday Book they cannot have been much more than 
 
 t ibid, sixty acres f. Those of Stowting were held as freely by 
 Stephen de Heringod, mentioned above in the suit of 
 De Bendings v. Prior of Christchurch *. 
 
 c Hast. iii. 520. It does not appear in the list given in the Monasticon, 
 i. 105, from Cotton MSS. Claud. A. 3, 110; nor in the list of lands 
 belonging to Christchurch at the dissolution, Valor Eccles. 26 Hen. VIII. 
 The manor of Cowling was part of the barony of Odo, Earl of Kent, and 
 was held of him in knight-service by the family of Butler. Afterwards 
 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 
 Kochester, soon after the Conquest, in francalmoigne. The land thus 
 identified as being held in demesne by military service is called West- 
 brooke. (Begist. Roff. 164, 268.) 
 
 d Vide Gouge v. Woodin, supra. 
 
 e Each. Eolls, 41 Hen. III. 43. For the freedom of this manor 
 and demesnes from customary descent see Allrev. Placitorum Corona, 
 p. 261 (omissa temp. Edw. I. r. 3), Inq. p. m. of William de Kirkby, 
 who held them by knight-service 30 Edw. I. 31. 
 
 An inquisition ad quod damnum respecting the advowson of Stowting, 
 settled by Stephen de Heringod on his daughter Christina de Kirkby, is 
 mentioned in the Calend. Oenealog. p. 649, 31 Edw. I. 119. 
 
xii.] Tenure in Francalmoigne. 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 were 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 1T " 
 of twenty-six) were in the demesne of the monastery, 
 besides half a suling held allodially free of all service 
 by one Godfrey f . 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 capite, 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 
 last 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 the t No. 51. 
 estates of Charles I. 
 
 f Eeferring 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 
 holds half a suling of this manor, and it paid tax with the other lands 
 in the reign of Edward the Confessor, although it could not belong to 
 the manor except in paying the land-tax, because it was free land." 
 These tenants of land which was not socage within the francalmoigne 
 manor, cannot have been other than the drengs or lesser thanes described 
 in a previous chapter. Being allodial, their lands could not then have 
 been 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 Necessitous, 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 Mo- 
 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- 
 tics. 
 
 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 Museum 
 as shewn above. There the manors of East Peckham and 
 East Earleigh are enumerated among others held in franc- 
 almoigne by the monastery. 
 
 4. They are described, as we have seen, in Domesday 
 Book, and distinguished into socage land, and allodial 
 land divided unequally between the demesne lands of the 
 monks and the free tenants above mentioned. 
 
 5. Another manor (Westwell) thus given and confirmed 
 before the Conquest, and thus described in Domesday Book, 
 was aliened in fee-farm by the monks as early as the 
 reign of John, and the tenure thereby converted to socage. 
 Yet we see by the suit described in this chapter that this 
 change was not sufficient to turn the land into gavelkind, 
 because it was not originally held in socage at the Con- 
 
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 
 
 bv these monks to Henry II. * extracted earlier, shews also * Somner, 
 ■ , , . , . , , , , • 1 ■, , <*" v - 211. 
 
 that the archbishop received a large estate m 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 the judgments in Gouge v. Woodin, Dionysia NoeVs 
 Case, Lennard v. Sussex, Browne v. Brookes, and others 
 above -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 
 
153. 
 
 272 The Tenures of Kent. [chap. 
 
 ownership since the Conquest of land by an ecclesiastical 
 corporation (whether in francalmoigne or in chivalry) will 
 not rebut the presumption that at the Conquest it was 
 socage, and not in francalmoigne or military tenure. Fur- 
 ther, it has been seen that an ancient tenure in capite, such 
 as that of these manors of the Church, is inconsistent with 
 * 2 Sid. a customary tenure (Browne 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 manors 
 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 the 
 presence of a quit-rent is the best evidence that the land 
 was originally socage. It will be found that no quit- 
 rents are payable out of any lands which formed part of 
 the demesnes, whether now separated from the seignory 
 or not g . 
 
 e By the Survey of East Peckham, Pari. Surv. 51, in the records of the 
 Augmentation Office, it appears that the Court-lodge or manor-house with 
 the demesnes had been alienated by the Crown, and that there were pay- 
 able at the Court-lodge the quit-rents due from the freeholders in free 
 socage tenure, in East Peckham and the township of Marden, the rent of 
 hens and eggs from the same freeholders, and a heriot of the best living 
 thing belonging to each freeholder upon every demise or death, or in lieu 
 thereof a payment of 3s. 4d. 
 
 The manor of East Peckham includes the Den of Chillenden in the 
 parish of Marden. In the inquisition taken on the death of Walter 
 Colepepper (1 Edw. III. ; Lambarde 540, 542 ; Hast. iv. 377), are de- 
 scribed some of these free socage tenements in East Parleigh and East 
 Peckham, which were held in gavelkind of the priors of Christchurch. 
 
 " An inquisition taken at Tonbridgc before the King's escheator for 
 
xii.] Tenure in Francalmoigne. 273 
 
 One of these estates, consisting of over 170 acres, of the 
 demesnes of East Peckham, was alienated by Sir J. Baker 
 to Antony Weldon, whose title (says Hasted*) being dis- * vo1 - v - 
 puted by the Crown, the Attorney-General exhibited an 
 information against his heirs, and obtained judgment in 
 favour of the Crown. The premises were, however, re- 
 covered by proceedings on a writ of error by the eldest 
 son of Antony Weldon, whose eldest son " inheriting f " + voL «• 
 his father's estates again alienated this property. 
 
 Another portion, containing the manor-house and 220 
 acres of demesne land in East Farleigh and Linton t, was t Co. Ent. 
 
 78; Dyer, 
 
 held under a family settlement by Captain Nicholas Am- 115. 
 
 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. § Haat. iv. 
 
 377 
 " The entire fee (of the portion last named) after much 
 
 dispute, partly by purchase and partly by agreement, 
 
 became vested in the youngest son." 
 
 This is somewhat remarkable for several reasons. First, 
 
 that a claim of gavelkind inheritance should have been 
 
 the county of Kent, 'Feb. 25, 1 Edw. III. The jury declare on their oath 
 that the said Walter Colepepper . . . was seised in his demesne as of fee 
 at the date of his death of certain gavelkind tenements at East Farleigh 
 of the Prior of Christchurch by the service of paying twenty shillings 
 a-year, and attendance at the three-weeks court in East Earleigh. There 
 is a mansion and seventy acres of arable land, . . . and rents to the value of 
 thirty sh illin gs a-year payable at the usual quarter days, and a rent 
 of twelve hens payable at the same time. Also that he held in gavelkind 
 of the said prior by the same services a rent of five shillings, and another 
 of two hens in West Earleigh. And that he held certain tenements in 
 gavelkind in the ville of East Peckham of John de la Chequer, as of his 
 manor of Addington," &c, &c. All the sons of ~W. Colepepper were 
 found to be co-heirs of these tenements, and his eldest son of the 
 "liberum feodum," or frank-fee at Shipborne described later in the same 
 document. 
 
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 an 
 admixture of gavelkind land, which necessitated the par- 
 tition, which was afterwards loosely described as having 
 affected the whole estate. Instances of partitions of this 
 kind will be found in the next chapter. In the present 
 case we have to remark that no partition among the sup- 
 posed co-heirs took place. 
 
 If the lands had originally been socage, or if they could 
 have been presumed of an ancient socage nature, the pre- 
 sumption of law must immediately have taken effect, and 
 the lands have been partitioned among the male heirs with- 
 out further dispute. But they were not socage at first. 
 Therefore the eldest son ought to have taken them all. It 
 seems however that a compromise took place, and partly 
 by purchase and partly by agreement the youngest took 
 
Xii. J 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 
 Christchurch, Gouge 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 * &i. 164. 
 or Aumone. " Almoigne is where lands or tenements are 
 given in alms reserving any service to the feoffor -j\" J 7 C °- 1!tt - 
 
 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 
 in Kent it is generally found that a tenure by divine service 
 was created, the grants being only in perpetuam eleemosynam, 
 and not in libercm or in puram eleemosynam. 
 
 This will account for the form of those old deeds of 
 grant, which have indeed been mentioned in a preceding 
 
 t2 
 
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 V 
 
 In the same way this accounts for the reservation of 
 a " for-gavel 1 ," 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 novel 
 tenure upon the grant of lands, till then happily holden in demesne, 
 
 h Many of these deeds are said to exist in the Canterbury archives. 
 Some have been cited in earlier chapters. See Billiog. Topogr. Britann. 
 vol. i. p. 236 ; Somner, Gav. 8, 38, 55, 184. 
 
 " 1. Know all men that I, E. ~E., have given and granted to God and 
 the brethren of St. Laurence's Hospital by Canterbury, seven acres of ray 
 land to be held in gavelkind of me and my heirs freely, rendering yearly 
 thence to me and my heirs forty-two pence for all services." The words 
 in italics, if standing alone, would have sufficed to create a pure francal- 
 moigne 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 be 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. litt. 
 74 b. 
 
 1 For-gavel (Foris-gabulum) was a rent over and above the rent-service 
 due to the lord paramount. See a deed reserving an " extra rent-service" 
 of this kind, and relating to lands in Kent granted by Hamo Doge to 
 a tenant by divine service. Ellis' Dugd. Monast. i. 146. 
 
xii.] Tenure in Francalmoigne. 277 
 
 to one or more persons in gavelkind, as was usual before the 
 Statute Quia JSmptores terrarum, until when a man might create 
 in his land what tenure he pleased, granting out, as Bracton * * Bract, 
 said, in socage, what he had before in knight-service and e con- 
 verso ? "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 +." t Somn. 
 
 J ' Gav. 47. 
 
 He draws from the facts a curious conclusion that gavel- 
 kind does not spring from ancient custom alone, but might 
 have 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 $ should have corrected j 374 a. 
 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 
 was 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 " de dominio nostro in North Ockholt 
 
278 The Tenures of Kent. [chap. 
 
 *sonm. 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 far as 
 regards the present enquiry, for this reason, viz. that no 
 land was held by it at the time of the Conquest so far 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 be gavelkind, 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 tenancy by 
 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 k . 
 
 The importance of considering the tenures of those 
 estates, which were held by the Church in Kent before 
 the Eeformation, will appear from Hasted's account of the 
 number of the suppressed religious houses. 
 
 " There were in this county, of the Benedictine order, two abbeys, 
 three priories, and five nunneries ; of the Clugniac order, one 
 priory ; of the Cistercian, one abbey ; of secular canons, five col- 
 
 k Compare the language of Coke respecting ahbots who held by military 
 service. " Although by the abbot's death there is neither ward, marriage, 
 nor relief due, yet he holdeth by knight-service, albeit the lord cannot 
 have the fruit of it. And if the abbot aliene the land over to a man and 
 his heirs, there is the ward, marriage, and relief revived." — (Co. litt. 
 99 a.) 
 
xii.] Tenure in Franealmoigne. 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 clear revenues of the above monasteries and other 
 religious foundations in this county, were about £9,000 per annum, 
 in the reign of Henry VIII.*" 1?*!^' 
 
 Of these some held their lands from before the Conquest 
 in franealmoigne, " a tenure of a nature very distinct from 
 all others f," some from the Conquest by barony or knight- tibid.322. 
 service and in some cases by castleguard. The manors 
 and demesnes thus held, have been shewn to be now de- 
 scendible at common law. The rest held by military 
 tenure, franealmoigne, or divine service, and we have 
 shewn 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. 
 
CHAPTEE XIII. 
 
 Tenure by Knight-service. 
 
 General rule. — Office of Escheator and Feodary. — Escheat Eolls. — Eed 
 Book of the Exchequer. — Testa de N&oil. — The Eeodary of Kent. — The 
 Boll of Blanch-lands. — Difficulty of consulting records. — Disinclination 
 to enquire into tenures. — Amount of land in Kent held by Knight- 
 service. — The Statute 18 Henry VI. c. 2. — Circumstances to "which 
 it referred. — 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 post mortem in the reign of Henry 
 VI.— Manors of BAMBERHURST, BARMING, OTHAM, JEN- 
 NING'S- COURT, BUCKLANB, BUBBENHAM, HARRIETS - 
 HAM, MARBEY, EENARBINGTON, COCERIBE, BRA- 
 BO JJRNE.— Question as to tenure of advowsons — UBCOMB, TIR- 
 BINGHAM, BEVEBANB, ORBESTON.— Alleged partitions by 
 Gavelkind co-heirs. — Woods-court. — Estates ' of the Earl of March. — 
 SWAN'S COMBE.— Early history of the manor of ERITH.—TxiaS. as 
 to tenure of ETHORNE.—MURSTON. 
 
 * 
 
 Hating now examined briefly the spiritual tenures 
 known in Kent, as well as the higher tenures in chivalry, 
 as barony, sergeanty, and castleguard, 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 and 
 tenements descend to the heir at common law, which at 
 the Conquest were in a tenure superior to socage; the 
 same rule will now be treated partially, or rather under 
 another aspect, in estimating the value of the maxim, 
 that "ancient knight - service lands in Kent are not 
 partible." 
 
 In one sense the maxim has already been fully proved 
 while the tenures of barony, sergeanty, and castleguard 
 
chap. xiii. J Tenure by 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 we have seen) by sergeanty, and much by 
 castleguard of Dover and Kochester 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. litt. 
 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 
 the Escheat Kolls; and a supplementary series of these 
 documents, or copies of them, were preserved in the Ex- 
 chequer. "They are," says the Secretary to the Public 
 Eecord Office, in his preface to the recently published 
 Calendarium Genealogicum, "of such importance as to 
 have been styled ' the proprietary map of England,' " and 
 " are the basis of nearly all that we can be said to know 
 concerning the descent of the baronage of England, of 
 the lords of manors, and generally of the owners of the 
 land 1 ." 
 
 The Kentish historians have always recognised the im- 
 portance of these documents, and the readers of Hasted 
 
 a A Calendar to these important documents was first published by the 
 Eecord Commissioners in 1806. 
 
Gay. 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 Pleas. Since 
 Eobinson wrote, a great number of these early cases have 
 been published, e.g. in the Ablreviatio Placitorum, and a 
 reference to the whole is much e'asier 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, we have seen that nearly half the knight's- 
 
xni.] Tenure by Knight-service. 283 
 
 fees in Kent were held by castleguard, so that the records 
 concerning the two principal castles in the Exchequer 
 have preserved for us full and continuous lists of the 
 lands owing this service from the reign of William I. to 
 that of Charles II. 
 
 Again, the three great aids were due to the king from 
 his tenants in capite, when he required a ransom from 
 captivity, or knighted his eldest son, or married his eldest 
 daughter. This necessitated the preservation of faithful 
 lists of all the lands liable to such occasional payments. 
 Such lists are to be found in the Bed Book of the Ex- 
 chequer, and the Testa de Nevil, containing the names and 
 estates of all the tenants in capite, not holding in francal- 
 moigne, during the reigns of Henry III., Edward I., and 
 at the accession of Edward II. 
 
 But the most important record perhaps for Kentish 
 landowners is that which is especially named the Book 
 of Aid, which was taken as the standard authority in 
 later reigns to determine whether lands were anciently 
 held by military service, or not b . 
 
 It was compiled on the occasion of levying an aid for 
 making the Black Prince a knight in 20 Edw. III., and 
 in the next year was returned into the Exchequer. A 
 copy of this, with additional notes and memoranda relating 
 to the ownership of these lands in the reign of Henry VIII., 
 forms the Feodary of Kent, compiled by Cyriae Petit for 
 the Exchequer, in which he was an officer. Keferences 
 to his notes upon its contents will be made in the next 
 chapter. 
 
 b " Feoda Kancise contenta in Scaccario Eegis per ques scutagium erat 
 levatum in comitatu Eancia 21 Edw. III., pro primogenito filio suo 
 milite faciendo." 
 
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 different. 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 
 
 c 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 le gained of almost every manor and estate of consequence of which 
 any one died possessed, either 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 are now lost to the laborious historian." 
 
xiii.] Tenure ly Knight-service. 285 
 
 was free from the nature of gavelkind. This impression 
 is doubtless due to the manner in which Kobinson wrote 
 in one of his earlier chapters. 
 
 " All lands," he wrote, " in Kent originally holden by ancient 
 tenure of knight-service, are descendible to the eldest son only, 
 
 and are not of the nature of gavelkind Though the custom 
 
 of gavelkind be confined to tenements of (ancient) socage nature, 
 yet there were fewer lands anciently holden by knight-service 
 than perhaps in any other county ; insomuch that it was said * * Pasoh. 
 that all the land in Kent is holden in socage. But this is not to u. . Mayn. 
 be taken literally 3 ." 61 °- 
 
 It must be remembered that Eobinson was writing of 
 gavelkind, and not of the lands in Kent descendible at 
 common law, except incidentally. But the statement at 
 first sight is very surprising that much less land was held 
 by services of chivalry here than in other counties. Every 
 manor mentioned in the Domesday Survey of Kent was 
 held by military service, except those which lay in the 
 higher tenure of francalmoigne. Further, all the land 
 which lay in the demesnes of those manors was " anciently 
 holden in knight-service." There is, however, an explana- 
 tion of the statement. Less land was held by the military 
 tenants of Kent than by those of other counties in a tenure 
 of chivalry, because the demesnes were the only portions 
 of which the lords retained the freehold. In other counties 
 the cultivators of the soil were mostly tenants at will, or 
 
 d Eobinson cites as to these knight-service lands Mic. 3 Joh. 13 d; 
 9 Hen. III., Prescription 63; 55 Hen. III., Itin. Kane. 20; Hil. 10 
 Edw. I., c. b 27 ; Be Beggbrooh's Case, 26 Hen. VIII., 4 b ; Kvrly 
 Lee's Case, 1 Sid., 138; Gouge v. Woodin ; 39 Hen. III., 18 d; 43 Hen. 
 III., 4 ; 55 Hen. III., 20, 38, 52 ; and 9 Edw. II., c. b. 240 ; 31 Hen. 
 VIII., c. 8; 18 Hen. VI., c. 2. 
 
# 
 94 b. 
 
 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. litt. firma *) ; 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- 
 
xiii.] Tenure by Knight-service. 287 
 
 pendix) will give some idea of the number of estates 
 which, were descendible at common law. 
 
 But here we are met by the objection which seems to 
 have chiefly hindered Kobinson from pursuing an enquiry 
 into the amount of lands -and tenements which were not 
 held in gavelkind. The passage, which he as well as 
 Somner and Lambarde have quoted from the statute 
 18 Hen. YI. c. 2, runs thus : — 
 
 " In respect of which ordinance *, seeing that within the county * 15 Hen. 
 of Kent there be but thirty or forty persons at most which have "' % J 
 any lands or tenements out of the tenure of gavelkind, and the 
 greater part of the county, or well nigh all, is of the tenure of 
 gavelkind, which persons be constantly impanelled and returned 
 in actions or writs of attaint," &c, &c. 
 
 This fragment of the statute deserves particular atten- 
 tion. Before it can be understood, the circumstances to 
 which it refers must be known. They are briefly these. 
 
 Henry YI., wishing to amplify the privileges of gavel- 
 kind, granted to all tenants of such land exemption from 
 serving on juries in actions of attaint, a privilege which 
 those tenants of gavelkind, who were men of the Cinque 
 Ports or who held portions of the king's ancient demesne, 
 had long enjoyed f e . t**^ 
 
 e The principal remedy in ancient times for a false verdict given by 
 a petty jury was the action of attaint, in which the verdict of a jury of 
 twenty-four decided if the jury of twelve had brought in a wrong verdict. 
 The penalty at first was infamy, imprisonment, and forfeiture of goods, 
 the theory of a jury being at first that the jurors were witnesses testifying 
 out of their own knowledge to the facts. A false verdict was on this 
 view equivalent to the worst perjury. By degrees, however, the penalty 
 was commuted for a fine in money. The writ of attaint was as old as 
 the reign of Henry II., and though long obsolete in practice was not 
 abolished until 6 Geo. IV. c. 50, § 60 ; Co. litt., 296 b ; 5 El. Comm., 
 388, 402. 
 
288 The Tenures of Kent. [chap. 
 
 A property qualification was necessary for all jurors in 
 actions of attaint, soil, 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 cases 
 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 to 
 those persons who were liable to sit as jurors in the cases 
 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 f . 
 
 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 land 
 
 f Lamb., Peramb., 546; Somner, Gavelkind, 53. 
 
xiii.] Tenure by Knight-service. 289 
 
 of the yearly value 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 .... which 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 he 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, 
 is 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 
 us take the minimum and allot one estate of £20 yearly 
 to each. Then the aggregate value of their estates in 
 18 Hen. YI. 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 
 will suffice to shew the importance of the question. 
 
 The Act of 15 Hen. YI. 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 8 , "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 h ." 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 knightf s-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 
 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 county 
 of Kent that the number of tenants was larger and the 
 
 e Middle Ages, iii. 170. 
 
 h See tables compiled by Sir Francis Palgrave cited in the same place. 
 
 1 For instance, in the inquisition post mortem of W. Colepepper, quoted 
 before, his eldest son inherited a rent-service of 26s. 6d. held by him out 
 of gavelkind in Shipbourne. 
 
xiii.] Tenure by Knight-service. 291 
 
 freeholds were smaller in proportion, than in any other 
 
 part of England k . 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. 
 
 595 
 causes. The statute of Quia Emptor -es, 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 
 have seen, were most numerous and valuable. 
 
 The Prior of Christchurch alone held thirty-five manors. 
 The measurements given by Thorne shew that the Abbot 
 of 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 
 were resumed by the Crown, besides the vast possessions 
 which the Archbishop and the Bishop of Rochester were 
 permitted to retain. 
 
 k At the end of the last century the number of freeholds was about 
 nine thousand, " which is surprising (wrote Hasted) considering the large 
 possessions 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 £80,000 per annum, besides parsonages and tithes." — (vol. i. p. 301.) 
 
 u2 
 
292 
 
 The Tenures of Kent. 
 
 [chap. 
 
 "We may further exclude the temporal peers, who shared 
 among them a large proportion of the land held at com- 
 mon law. 
 
 The foregoing remarks may be verified by a cursory 
 reference to the evidences collected in the inquisitions 
 post mortem of the reign of Henry YI. We find, for in- 
 stance, in the inquisition taken on the death of Sir Thomas 
 Poynings in 7 Hen. YI., the following list of " knight's- 
 fees pertaining to the manor of Basing held by the late 
 Sir T. Poynings" : — 
 
 NAME OF ESTATE. 
 
 POETION OV 
 
 
 knight's-eee 
 
 *Betshanger 
 
 1 
 
 *Ham 
 
 1 
 
 Norton ^ 
 
 
 Newington > 
 
 1 
 
 Fishbourne J 
 
 
 Tunstall .... 
 
 1 
 
 *Moriston .... 
 
 1 
 
 *Bicknor .... 
 
 1 
 
 Kingston T 
 *Tong ) 
 
 5 
 
 Elnothington 
 
 1 
 
 *Pising .... 
 
 1* 
 
 Harty 1 . . . . . 
 
 1 
 
 9 
 
 Barston .... 
 
 i 
 
 Sholand . 
 
 t\ 
 
 Total .... 
 
 14* 
 
 The manors marked -with * were held by castleguard of Dover Castle. 
 
 Another important inquisition is that which was taken 
 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 together 
 
 1 See Lowe v. Paramour, supr., and Dyer, 301. 
 
xiii.] Tenure by Knight-service. 293 
 
 to his other lands, which were "of the tenure of gavel- 
 kind * m ." * 16 Hen. 
 
 VI. 50. 
 
 SAME OB ESTATE. 
 
 East Barning . 
 
 West Barning . 
 
 Otham . 
 
 Loose . 
 
 Nettlested 
 
 Pimpe . 
 
 The Moat, Brenchley 
 
 West Mailing ] 
 
 East Mailing } 
 
 Lamberhurst " . 
 
 Half the manor. 
 
 Manor, advowson. 
 
 Manor, advowson. 
 
 Manor. 
 
 Manor. 
 
 Manor, lands, house. 
 
 Manor and lands. 
 
 Lands. 
 
 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 knight's-fee 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 Gal. 
 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 %, J Hast. v. 
 
 515. 
 
 m u Terrae de tenura gavelkind inter heredes masoulos." These lands 
 and tenements were very numerous. Several of these estates came into 
 the ownership of John Pimpe after the death of his elder brother. John 
 Pimpe died in 18 Hen. YL, under which date his Inc[. post mortem is 
 enrolled. 
 
 n The manors of Lamberhurst and East and West Barming were held 
 as of the castle of Tonbridge as part of the honour and barony of Clare. 
 
294 The Tenures of Kent. [chap. 
 
 held it by knight- service at his death in 12 Hen. IT., and 
 devised it to John Pimpe and his heirs male, by which 
 limitation it preached Beginald, 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 tenure 
 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 beginning of King 
 John's reign it was held in capite by "William de Barm- 
 ling, formerly sub-tenant of Bobert 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- 
 
 * 53 Hen. quisition * to have held this estate in capite ,p as one 
 III. 10. ? , r 
 
 knight's-fee. 
 
 This inquisition has been published by the Kentish 
 Archaeological Society, vol. v. p. 300. It appears from it 
 that his son William inherited the manor of Barmling, 
 or Barming, and 100 acres of land, with a mansion, garden, 
 woods, rents-service, and profits of courts. In Pimpe, 
 50 acres of arable, with meadow land, and rents of assize ; 
 in Egerton, 20 acres, held of the archbishop q . 
 
 William de Barming died in 22 Edw. I. r , and was suc- 
 ceeded by his son, Bobert, holding these estates, as above- 
 mentioned, until his death, 31 Edw. I. Soon afterwards 
 the estate was divided, and John de Fremingham paid the 
 aid for making the Black Prince a knight on two-thirds 
 of it, scilicet, the manor and 100 acres in West Barming. 
 
 ° Omitted in Hasted's Account, iv. 394. 
 
 p Therefore not in gavelkind. Kirby Lee's Case. 
 
 i See also Cal. Geneal. 134; Eed Book of Exchequer, 132. 
 
 ' Inq. post mortem 22 Edw. I. 27. 
 
xiii.] Tenure by Knight-service. 295 
 
 From him it came to Eeginald Pimpe, in the same manner 
 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 Talding,) 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 8 . 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 held as one knight's-fee in the 13th year 
 of King John, (Testa de Nevil); afterwards by Sir Eoger North wood, 
 who held it by knight-service. He also owned certain marsh-lands in 
 Luddenham, which were gavelkind, butjconverted to 'knight-service land' 
 by charter from the king in 41 Hen. III. This charter is still preserved. 
 The other lands thus disgavelled by him are recapitulated in the Book 
 of Aid 20 Edw. III., Philipot, 225. 
 
 Buckland was also held by castleguard. "William de Apperfield was 
 found to hold it by knight-service in 33 Edw. III., and his widow held 
 one-third in dower. His son held it for his life, when the estate descended 
 
296 The Tenures of Kent. [chap. 
 
 Among the inquisitions taken in the next year, 19 Hen. 
 VI. 21, is that of John Adam, who died holding half the 
 manor and advowson of Harrietsham by knight-service of 
 the king, as part of the barony of Peverel. 
 
 The manor of Harrietsham had been divided in 52 
 Hen. III., so that the family of Northwood held two- 
 thirds, and that of Leybourne the remainder. 
 
 The former portion comprised " the manor of Harriets- 
 ham," of which John Adam held a moiety by knight- 
 service. The whole manor is recorded as one knight's-fee 
 * Hast. v. in the Book of Aid and the Feodary of Kent * '. 
 
 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 gavelkind." 
 
 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 Erognall, 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.) 
 
 4 See Inq.post mortem. Stephen de Cressy, 47 Hen. III. 28, and Koger 
 de Northwood, 13 Edw. I. 25. 
 
xiii.] Tenure by Knight-serviee. 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. I. 37, to have held this manor and advowson, 
 with Cockride in Bilsington, in capite by knight-service. 
 His brother Ealph was his next heir 11 . 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 capite, which the eldest brother had inherited, and these 
 gavelkind lands. ("Obiit seisitus .... tarn de illis quae 
 tenentur de domino rege in capite, quam de illis qua? 
 tenentur de diversis dominis in gavelkynde.") 
 
 Another Thomas de Eormanville 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 * Hast. 
 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 
 
 n Hasted' s account is wrong. He confused Thomas de Normanville, 
 who died in 11 Edw. I., with his relation of the same name who owned 
 this estate at his death in 11 Edw. II. (Hast. vii. 246.) 
 
298 The Tenures of Kent. [chap. 
 
 common law as to the manor and advowson, or a division 
 by family arrangement. If his statement is true, it is 
 evident that a mistake was committed. 
 
 In the same year Sir Hugh Halsham died seised of the 
 ancient knight-service manor of Brabourne, and two-thirds 
 of the advowson of Hinxhill. The former estate was one 
 of the thirty manors in Kent held in barony by Hugh de 
 Montfort at the Conquest, and in the reign of Edw. I. 
 was held by knight-service as of the king's Marshalsea \ 
 The latter, with the manor of Hinxhill, to which it was 
 appendant, formed part of the same barony. We find no 
 account of any demesne lands comprised in it at the date 
 of Domesday Book. Indeed, we are told in that survey 
 that " a certain socage tenant held it of the late king." 
 
 It is remarkable, therefore, that the advowson should 
 have been descendible at common law, inasmuch as any 
 demesnes afterwards reserved must have been gavelkind. 
 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- 
 
 x Inq. post mortem Joan de Montohensie, 1 Edw. II., and Hasted, 
 viii. 14, 26. 
 
XIII.] 
 
 Tenure by 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 Kobert Poynings, one of the " thirty 
 or forty persons" mentioned in the Act of 18 Hen. YI. 
 c. 2. 
 
 On his death in 25 Hen. VI., he was found to have 
 held by military tenure the following manors, lands, and 
 tenements : — 
 
 PAEISH. 
 
 DESCRIPTION OP ESTATE. 
 
 *Tirlingham . 
 
 . Manor, land, &c. 
 
 Hastingleigh 
 
 . Advowson. 
 
 "Westwood . 
 
 . Manor. 
 
 Leeds 
 
 . Land. 
 
 Frittenden . 
 
 . Land. 
 
 Combsden . 
 
 . Manor. 
 
 Standen 
 
 . Manor. 
 
 Hoking 
 
 . Manor. 
 
 *Bucksley 
 
 . Manor, advowson. 
 
 Horsmonden 
 
 . Manor, advowson. 
 
 Leveland 
 
 . Manor. 
 
 Benenden . 
 
 . Land. 
 
 North Cray . 
 
 . Manor and advowson 
 
 Horton 
 
 . Manor. 
 
 ♦Knocking . 
 
 . 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 K. 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 J. 
 
 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 The Tenures of Kent. [chap. 
 
 Horsemonden was one of those estates which were held 
 of the archbishop "in capite by grand sergeanty." (It 
 has been said before that the archbishop assumed the style 
 of a sovereign prince in this county. It was for this reason 
 said in Kirly Lee's Case, that although no gavelkind were 
 held in capite as of the Crown, yet certain gavelkind lands 
 were held "in capite of the archbishop.") Horsemonden, 
 however, was not of this last-mentioned kind. It is men- 
 p. 132. tioned in the Eed Book of the Exchequer*, the Testa de 
 Nevil, 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 common 
 law of Gilbert de Clare z , and of which his widow was 
 endowed. 
 
 Leveland was another of the ancient possessions of the 
 archbishop's. It was described in Domesday Book as 
 " one suling in Levelant held by Bichard, military tenant 
 of the archbishop (' Homo Archiepiscopi,') " and entered 
 among the "Teme militum Archiepiscopi." In 5 Edw. I. 
 Bulk Beyforer 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 
 Bulk, were the co-heirs of all the inheritable lands which 
 were held in gavelkind by their father *." 
 
 It appears from the same inquisition and from the Bleas 
 
 the king by military service in 23 Edw. I. (See Inq. post mortem Ber- 
 tram de Criol, 23 Edw. I. 78.) 
 1 Inq. post mortem, 7 Edw. II. 68. 
 
 " Sunt heredes totius hereditatis prsedictae quse tenetur in Graveli- 
 kend."— {Col. Geneal, 252.) 
 
xiii.] Tenure by Knight-service. 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 
 ("custodia liberse prisonee 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. b 
 
 The free tenure of the rest of these estates held by Sir 
 E. Poynings 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 capite by knight-service and castleguard d . The in- 
 heritance continued in his descendants until Mrs. Scott 
 died in 12 Hen. VI., entitling her husband to hold a moiety 
 of Orlestone by knight-service. It had been divided between 
 her and a younger sister as co-heiresses in 7 Hen. V. * *Hast.viii. 
 
 Again, the estate named Old Langport, in Lid, was held 
 at the Conquest by knight-service of the archbishop, and 
 
 b Calend. Kot. Cart. 9 Edw. II. 57. 
 
 c 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. 
 
 a Esch. Koll 12 Edw. I. 19. 
 
302 The Tenures of Kent. [chap. 
 
 so continuously until Sir John Hund died in this reign, 
 
 * Hastvui. holding it by the like tenure *. 
 
 Thus Crawton, a manor which had no free lands in 
 demesne, is recorded by Hasted to have been "succes- 
 sively inherited by three brothers named Belknap" about 
 
 t ib. ii. this time f. The eldest brother, Sir Hamo Belknap, had 
 also inherited the manor and demesne lands of St. Mary 
 Cray, which had from the time of the Conquest been held 
 of Dover by castleguard in capite and the petty sergeanty 
 of providing gilt spurs for the king. It was there- 
 fore socage and not gavelkind, as shewn in the foregoing 
 chapters. 
 
 Shebbertswell, an estate containing two sulings, was 
 held before the Conquest in francalmoigne, and afterwards 
 in barony by the Abbot of St. Augustine's. Immediately 
 after the Conquest it was granted by the abbot to a tenant 
 by knight-service, by a charter preserved in the Kegister 
 of the Abbey, No. 177. 
 
 It is entered in the Book of Aid as having been held by 
 castleguard of Dover Castle, having previously been simply 
 held by knight-service. In the reign of Henry VI. it was 
 
 jib. ix. owned by the family of'Philipott %. Hasted informs us 
 that this manor, with other estates in the parish, was 
 alienated in 1785 ly co-heirs in gavelkind. The sentences 
 following explain what he meant in reality, viz. that the 
 estate, excluding the manor, mansion, and demesne lands, 
 was thus alienated. But in other cases he is not so 
 explicit, and so has led to a mistaken impression that 
 the whole estate has been divided among the customary 
 heirs, when in fact only the gavelkind portions were so 
 treated. 
 |joi. vi. Thus, to give another instance, he asserted || that the 
 manor of Stalisfield was divided among gavelkind co-heirs 
 
xiii.J 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 Eed 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 YI. 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. YI., 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. III. Woods-Court 
 was held in socage in capite by the service of finding a 
 hawk or two shillings yearly for the king. Guido At- 
 wood held it at the end of the reign of Henry YI. * * Hast. vi. 
 
 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 
 
3°4 
 
 The Tenures of Kent. 
 
 [chap. 
 
 knight- service lands" in Kent were held by the peers in 
 the reign of Henry YI. 
 
 Without needlessly swelling out a long array of in- 
 stances, we will give two proofs only of this fact, the in- 
 quisitions taken on the deaths of Humphry, Duke of 
 Buckingham, and Edmund, Earl of March, in 39 Hen. VI. 
 and 3 Hen. VI. respectively. 
 
 The former recounts the military estates of which the 
 Duke died seised (38, 39 Hen. VI. 59), and which were 
 inherited by his eldest son as heir male 6 . The list of 
 these estates comprised, inter alia, the manor and castle 
 of Tonbridge, and manors and demesnes of Hadlow, Dac- 
 hurst, Brasted, and Vielston, or Filston, all held in ser- 
 geanty of the archbishop and by knight- service from the 
 Conquest downwards. 
 
 In addition to these he held by the same tenure the 
 following estates : — 
 
 PABISH. 
 
 Eatonbridge 
 Penshurst . 
 Havenden Court 
 Ensfield Farm 
 Yalding . 
 Bay Hall . 
 Henhurst . 
 Brenchley 
 East Banning 
 Upper Hardres 
 Sheldwich 
 
 ESTATE. 
 
 Manor. 
 
 Manor, park, lands. 
 
 Manor, lands. 
 
 Lands. 
 
 Manor. 
 
 Manor, lands. 
 
 Manor, lands. 
 
 Manor, lands. 
 
 Lands. 
 
 Manor, advowson, land. 
 
 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 25th 
 year of that reign. After the death of the Duke of Buck- 
 
 Dudg. Baron., i. 166; Hast. v. 214. 
 
XIII.] 
 
 Tenure by Knight-service. 
 
 3°5 
 
 ingham a great portion of his estate was again resumed 
 by the Crown f . 
 
 As to the numerous knight' s-fees held by military service 
 of the Archbishop and the Bishop of Eochester in this 
 reign, it will be sufficient to refer to the Eed Book of 
 the Exchequer, 132, the amount of their estates not 
 having 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 : — 
 
 NAME OB ESTATE. 
 
 POETION OP 
 
 
 znight's-eee 
 
 Kingston 
 "Watringbury . 
 c. Luddesdon 
 
 1 
 
 
 
 c. Moreston (Murston) 
 c. Gravesend 
 
 1 
 
 1 
 a 
 
 c. Swanscombe 
 
 1 
 
 5 
 
 c. Addington 
 Eslingham 
 East Preston . 
 
 3 
 10 
 
 3 
 4 
 
 • i 
 
 0. Boughton Monchelsea . 
 
 Dupton 
 c. Erith . 
 
 3 
 
 4 
 
 . 1 
 
 1 
 
 c. Ripley 
 
 . 1 
 
 f Inquis. de Diversis Annis, Hen. VI. a, !No. 5, Kent. As to the 
 manor of Eatonbridge, see Palgrave's Rotuli Curies Regis, vol. ii. p. 117. 
 As to Penshurst and the other estates above mentioned, see Inq. post 
 mortem 35 Edw. I. 47, Earl of Gloucester, and 2 Edw. II. 66, Mary de 
 Penchester. 
 
3o6 
 
 The Tenures of Kent. 
 
 [chap. 
 
 NAME OF ESTATE. PORTION OB 
 
 KNIGHT'S-PEE. 
 
 Liming 
 Eythorne 
 Stonepit 
 Ham . 
 
 
 
 . 1 
 
 i 
 a 
 1 
 
 4, 
 1 
 S 
 
 c. Bicknor 
 
 
 
 1 
 
 a 
 
 Natington 
 Newington 
 c. Chilham 
 
 
 
 i 
 
 5 
 1 
 
 4. 
 1 
 
 Parrock 
 
 
 
 1 
 
 Eversfleld 
 
 
 
 1 
 3 
 
 Harty . 
 
 
 
 a 
 ■5 
 
 These, with other lands specified in the inquisition, made 
 up more than nineteen fees descendible at common law g . 
 It is needless to trace the free tenure of all these lands 
 from the Conquest downwards ; some of them (marked c. 
 in the above list) have been mentioned already among the 
 estates held by castleguard ; the history of the others may 
 easily be found by any person interested. There is no 
 difficulty in general in proving the tenure of those lands 
 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 unimportant 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 very 
 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 great 
 Kentish family of Montchensie. William de Monte Canisio, ' 
 
 6 Feoda Militaria Edmundi Comitis Marchia, 3 Hen. VI. 
 
xiii.] Tenure by Knight-service. 307 
 
 or Montchensie, died in 38 Henry III., 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 h . 
 
 In 7 Edw. II. 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. III., that the service consisted in fealty and a yearly 
 castleguard rent ("per servicium reddendi annuatim prse- 
 dicto Castro Eoffensi") of £i 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. 
 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 j ." 
 
 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. II. It also paid scutage in 18 Hen. II., 33 Hen. II., 
 and 2 Eic. I. This manor, with half the demesne lands, 
 
 h See Hast. ii. 405, and compare Inq. post mortem 14 Edw. I. 69, and 
 16 Edw. I. 78. 
 
 1 Esch. Eoll, 4 Edw. III. 38. 
 
 > Among otter illustrations of the freedom of the tenure of these lands 
 held of Rochester 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. (Eent. Arch. 80c, v. 288. See Hasted 
 iv. 433.) 
 
 x2 
 
308 The Tenures of Kent. [chap. 
 
 * Hast. a. descended to the heir at common law of Eichard de Lucy *, 
 
 231. 
 
 who had held it apparently by castleguard. 
 
 In 12 Hen. III. we find that Eoysia de Dover and 
 Eichard de Chilham, her husband, recovered this estate 
 by writ of right and trial by battle. It was shewn in a 
 former chapter that this is a plain proof that no part of 
 the land recovered was gavelkind k . The case of Lowe v. 
 t Co. Ent. Paramour t, on which Eobinson founded a doubt whether 
 
 182. 
 
 trial by battle was not allowed in actions for customary 
 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 rolls of knight's -fees to have been ori- 
 ginally and continuously held in a military tenure. The 
 estate recovered in Lowe v. Paramour is mentioned in the 
 inquisition which we are now considering, scilicet, two- 
 thirds of a knight's-fee in Harty. 
 
 In 56 Hen. III. the manor of Erith was found to be held 
 of the king by homage and fealty in capite 1 ; and in the 
 next reign it was declared by a jury to be a member of 
 the barony of Chilham m . Sir Giles de Badlesmere held 
 it as two knight's-fees by castleguard in 12 Edw. III.; 
 but in 3 Eic. II. the jury impanelled on the death of the 
 Earl of March returned a verdict that this estate was held 
 in capite, " sed per quae servitia juratores ignorant." This 
 was equivalent to finding a tenure by knight-service, " for 
 X 2 Inst, the best shall be taken by the king t ;" accordinglv it was 
 
 ("J92 * 12 
 
 Co. i35. so held until the Act 12 Car. II., c. 24. 
 
 Eythorne, which was held by the Earl of March in the 
 
 k See ante, Pettes v. Barnard, and see Dyer, Coll. 201 a. 
 
 1 Inq. post mortem Eichard and Eoysia de Dover, ineert. Hen. III. 237; 
 Cal. Geneal. 181. 
 
 m "In capite tanquam membrum baronise de Chilham." — (Inq. post 
 mortem Joanna de Dover, 33 Edw. I. 183.) 
 
xiii.] Tenure by Knight-service. 309 
 
 same tenure,, had originally been held in francalmoigne by 
 the monks of Christchurch in Canterbury *. But since * Hast. x. 
 the Conquest it has always been included among the 
 "ancient knight-service lands" of the archbishops, as we 
 learn, inter alia, 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. Hither if these lands (the manor and demesnes of Eythorne) 
 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 f." tIHd.66. 
 
 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 Eoll 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 
 
 n Inq. post mortem of Thomas Abelin, 4 Edw. I. 21 ; of Nicholas 
 Abelin, 6 Edw. I. 17 ; and Isolda de Apperfleld, 24 Edw. I. 46. 
 ° Inq. post mortem taken on his death, 26 Edw. I. 21. 
 
310 The Tenures of Kent. [chap. xm. 
 
 knight-service. There is, however, this advantage in mul- 
 tiplying the instances of a rule which cannot be disputed, 
 that each verdict of a jury quoted from the records of the 
 Exchequer carries with it sufficient weight to establish 
 the free or customary nature of the particular lands men- 
 tioned in it, and leaves no room for the application of the 
 common presumption. However ancient the record, 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 other illustrations of 
 the general rule, that the lands originally held in military 
 tenure are now descendible to the eldest son, will be added 
 to those given above. 
 
CHAPTEK XIV. 
 
 Tenure by Knight-service (continued). 
 
 Importance of the record named the Eeodary of Kent. — Its history. — 
 Tenures in eapite. — Gavelkind held in eapite. — Other records. — Hundred 
 Rolls. — List of military lands. — Escheat Rolls. — Manors of WEST- 
 BERIES, HAGHNET, TRIENSTONE.— Descent at common law 
 of lands in FRINSTEB, ASHURST, HOLLINGBOURNE.—'Fiee 
 land and gavelkind in MONINGHAM, NETTLESTEB.— Descent at 
 common law of manors and lands in BARTFORB, STONE, LITTLE- 
 BROOK, SWANSCOMBE, YALBHAM, and IGHTHAM.— Manor 
 and advowson of BECKENHAM. — Descent at common law of manors 
 and lands in EAST B ARMING, WICHLING, FRINSTEB, LEVE- 
 LANB.— Estates of the Northwood family.— BO UGHTON MAL- 
 HERBE, SHALMSFORB, GRAVESENB, COCERIBE in BIL- 
 SINGTON.— Case of Cheyney v. Edolfe.— Free tenure of BLEANE 
 andHOABE CO URT. — Eorest of Bleane. — Question concerning tenure 
 of woodlands.— Manors of PA TIL' S CRA Y, FO OT' S CRA Y, NORTH 
 CRAY, H00 ST. WARBURGH—Free lands in ORLESTONE 
 and R OMNEY.—Yiee and customary portions oilFIELB and SEVER 
 COURT— Early history of BOUGHTON ALUPH— Its tenure.— 
 Division among heiresses. — Question respecting its tenant by the cur- 
 tesy of England. — Subsequent notices. — Pleas of the Crown. — BOYN- 
 TON in SWINGFIELB. —Dispute as to tenure of waste land. 
 — CHARING, ICEING.— Early history of BURMARSH and 
 BEAMS TON.— Case of Finch v. Finch.— STURRY.— -Free lands in 
 SNAVE, GARWINTON— Other estates of St. Augustine's Abbey. 
 —STOBMARSH, OWLIE, BRISHING.— Proofs of tenure.— Sub- 
 division of estates. — SUTTON COURT, BERE COURT — Evi- 
 dences of military tenure.— GOOBNESTON, GOB WINSTON by 
 SITTINGBOURNE.—RoQ. of Blanch-lands.— Liberty of the- Duchy 
 of Lancaster.— LOWBEN, CHELSFIELB, BRABORNE, FARN- 
 B OR UGH— Other lands described in the Roll.— FRENSHAM in 
 Rolvenden.— SELLING, BARBIES COURT— Lowe v. Paramour. 
 —The Long House farm.— CHAMPIONS CO URT— Castle and 
 manor of ALLINGTON COBHAM, OREESBEN, and VIELSTON. 
 —Records relating to NEWINGTON and BIMCHURCH.— -Descent 
 to eldest son.— TOTTINGTON.— Rectory of Leybourne. 
 
312 The Tenures of Kent. [chap. 
 
 Having now shewn that the amount of land descendible 
 at common law and held by the " thirty or forty persons" 
 mentioned in the statute 18 Hen. VI. c. 2, was by no 
 means inconsiderable ; and further, that this statute took 
 no account of the great amount of demesne land at that 
 time owned by the spiritual and temporal peers and the 
 ecclesiastics of inferior rank; we may now notice a few 
 of those statements which are found scattered in the records 
 of various reigns, and which establish in each case the free 
 tenure of one or more estates in Kent. 
 
 The most important of the records concerning 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 
 Nevil and other rolls of knight' s-fees, but especially in the 
 Book of Aid of 20 Edw. III. It was compiled in his 
 official capacity, and placed in the Exchequer by Cyriac 
 Petit, the Feodary of the county, at the end of the reign 
 of Henry VIII. He added to the ancient record of 20 
 Edw. III. his own notes, and gave in a compact table the 
 ancient and modern 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 amount 
 of military service, or castleguard rent (as the case might 
 be), due from the land, and any particulars relating to the 
 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 affixed to his work, as 
 finally completed and ready for use in the Exchequer and 
 
xiv.] Tenure by Knight-service. 313 
 
 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 all 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 
 VIII," &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 hy 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 
 in capite ; it is properly described as a tenure " in capite 
 ut de honor e," or a tenure of the king " ut de honor e 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 
 
 a Co. litt. 108 a, n.; Madox, Exoh. 432. 
 
314 The Tenures of Kent. [chap. 
 
 indiscriminately " tenures in capite," a practice which has 
 frequently caused confusion. "When tenants in capite 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 demesne, we may notice the 
 following. Margaret de Penshurst was found by inquisi- 
 tion in 2 Edw. II. to hold "in gavelkind of the king in 
 capite" 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 Milton. 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 capite. 
 
 In precisely the same way we find recorded in an in- 
 quisition of the date of 2 Edw. II. that Henry de Cheve- 
 ney held in capite the gavelkind manor of Cheveney, 
 which was socage, and part of the ancient demesne of the 
 
 * Hast.vii. king's manor of Milton *. 
 54. 
 
 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 Hundred Bolls, of which por- 
 tions have been published by the Becord Commissioners. 
 The following short extract will demonstrate their utility 
 in determining the tenure of Kentish estates. 
 
 " Hund. Roll 3 Edw. I. 8, Kent : Hundred of Eyhorne — The 
 jury further find that Hugh de Gerunde 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 by Knight -service. 315 
 
 de Gatton has a whole fee in Boughton and Wormsall held by 
 castleguard of Dover Castle of the king in capite ; that Sir Rob. 
 Septvans and Lady Margaret de Valoignes 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 Hundred. — 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 b ," &c, &c. 
 
 The Escheat Eolls and Fine Eolls for the earlier reigns, 
 extracts from which have been published by the Secretary 
 of the Eecord Office under the inspection of the Master of 
 the Eolls, afford 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 
 
 b See Hund. Eolls, temp. Edw. I., pp. 196—237. 
 
316 The Tenures of Kent. [chap. 
 
 summoned to enquire into the tenure, services, &c, of the 
 lands mentioned in them c . 
 
 In the reign of Henry III. one Aluph de Bucking was 
 owner of the manor of Westberies, being a moiety of the 
 manor of Bucking and of Haghnet, which seems to have 
 been the ancient name of Aghne Court in Old Bomney d , 
 besides other lands and tenements comprised within their 
 bounds. On his death, in 34 Hen. III., it was found by 
 verdict of a jury that "Thomas, his first-born son, was his 
 heir as to all the land which was held by military service, 
 and the said Thomas and his brother were co-heirs of 
 all the rest of the land which was held in gavelkind." 
 There were certain rents-service, which descended to the 
 eldest son e . 
 * Hast. Trienstone was in the same reign held by castleguard * 
 'as part of the barony of the Lord Warden. It is men- 
 
 " It must be borne in mind," says the learned Secretary of the Eecord 
 Commission, "that there are hundreds who now seek to obtain information 
 from these records on a great variety of subjects (see lists of these sub- 
 jects in Eepp. 23—26 of the Deputy Keeper of the Public Eecords), and 
 that their number will surely be increased in proportion as the records 
 become more generally known, and their contents more clearly denoted 
 by indexes and calendars." — (Cal. Gen. preface, ii.) 
 
 d Hasted does not give any detailed account of the ownership of West- 
 beries before the time of Henry IY. It appears, however, that the whole 
 manor of Eucking 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, " Hsec Wil- 
 lielmus I. reddidit Ecclesiae Christi pro Deo et pro salute animse suae 
 gratis et sine pretio.") The list includes Eucking. Part of it, however 
 (Westberies), was retained by De Montfort, and held of him by military 
 service, as recorded in Domesday Book. The portion recovered by Christ- 
 church contained 100 acres of gavelkind land. (Sonrner, App. 187 ; Hast, 
 viii. 355, 441, 472.) 
 
 6 Inq, post mortem A. de Eucking, 34 Hen. III. 17. 
 
xiv.J 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. 
 
 III. 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 Ashurst, and 
 lands held in Hollingbourne of the prior and monastery 
 of Christchurch in Canterbury. The jury summoned at 
 his death returned a verdict that " Hugh de Gerunde, 
 the first-born son of the said Nicholas, is heir to his 
 lands f ." 
 
 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 Hollingbourne was thus held by the 
 
 f Inq. post mortem 52 Hen. III. 15. 
 
318 The Tenures of Kent. [chap. 
 
 monks of Christchurch at and before the Conquest ; at the 
 latter time they had half a suling in demesne, part of 
 which must have formed the land inherited by the heir 
 at common law of Nich. de Gerunde. 
 
 The inquest on the lands of Simon de Criol, 52 Hen. III. 
 34 (translated Kent. Areh. Soc, v. 297) shews that his 
 widow, Matilda de Eastwell, as before noticed, was tenant 
 in capite of two knight's-fees in Ashford, Sevington, Pack- 
 manstone, and Esture, viz. three carucates of land with 
 their appurtenances, and the advowson of Ashford by 
 eastleguard. . . . 
 
 But that Simon de Criol held nothing in capite, but he 
 held in gavelkind 240 acres at Moningham, and other lands fc 
 elsewhere, of the same tenure, to which his eight sons 
 were co-heirs, and of which his widow had a moiety for 
 her free-bench. 
 
 In the same place is a translation of the inquisition 
 post mortem of Eoland de Axsted, 54 Hen. III. 22, by 
 which it appears that he held half a knight's-fee in Nettle- 
 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 111 acres in gavelkind. Also 
 the manor of Hylth and other lands, of all which his son 
 Eoland was the next heir. 
 * v. 121. 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. VII. 
 this estate was still held by knight-service by a descendant 
 of Sir Thomas Pimpe. 
 
 Many other valuable translations of similar records 
 
xiv.] Tenure by Knight-service. 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 g , 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 Yald- 
 ham, St. Cleres in Ightham (which were divided in the 
 reign of Edw. II. between co-heiresses), and certain other 
 lands and tenements comprised within their bounds*. * Hast. v. 
 
 16, 37. 
 
 "And the jurors being asked who was the heir of the said 
 Thomas, say that of the military lands (feodo 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 1 ." 
 
 These socage lands were afterwards disgavelled by 
 Reginald Peckham, 2 and 3 Edw. VI. The rest were 
 held by knight -service until the abolition of feudal 
 tenures k . 
 
 In the year following Sir Eichard de la Eokele, or De 
 Bupettd, died seised of the manor, advowson, and demesnes 
 
 s See Hasted, ii. 373, 374, 389. 
 
 h Inq. post mortem 3 Edw. I. 10. 
 
 1 Inq, post mortem T. de Aldham, 4 Edw. I. 45. 
 
 k The tithes of Taldham were anciently given to the Priory of Roches- 
 ter. This grant, cited Eeg. Eoff., 117, and the Parliamentary Survey of 
 1649, shew that the manor of Great Taldham contained 142 acres. Ac- 
 cording to the Eeodary of Kent it was held in capite by Reginald Peck- 
 ham in 35 Hen. VIII., who was succeeded by James Peckham, his son 
 and heir. 
 
320 The Tenures of Kent. [chap. 
 
 of Beckenham, which is held as one knight's-fee in capite. 
 He was succeeded by his eldest son and heir '. 
 
 At the same date Manasser de Hastings was found to 
 hold of the king by grand sergeanty the estate called the 
 * Hast. iv. Grange in Gillingham m *. 
 
 In the same year it was recorded by a jury that Pulk 
 Peyforer held the manors of East Banning, "Wichling", 
 Yokes Court in Prinsted, and others by knight-service 
 (as may also be seen by the Book of Aid, 20 Edw. III.), 
 and Colbridge Castle, with other lands in Boughton Mal- 
 herbe; and that his eldest son was heir of his military 
 lands, and all the sons together of his gavelkind tenements. 
 Among these military lands was the manor of Leveland, 
 as mentioned above in this chapter. 
 
 The lands held by Eoger de Northwood are enumerated 
 in the same record, taken according to an inquisition 
 13 Edw. I. 25. They included the manors of Little Hoo, 
 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 Boughton 
 
 1 " Idem Bicardus 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. 
 
 m Inq. post mortem 5 Edw. I. 7 ; Testa de Nevil, 219. 
 
 n "Wichling. " This manor," says Hasted, " was in the reign of 
 Henry VII. 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 ljd. 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 ° *. * Ha9t - 
 
 . vii. 310, 
 
 Henry de Cramaville and Joanna his wife were found, v. 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 q . 
 
 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 Cockade 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 
 Perry, a marsh in Harty, Craythorne manor and advowson 
 in the parish of Hope, lands called Tillade and Kings- 
 marsh in Bomney Marsh, &c, were asserted to be held in 
 gavelkind. Without going into the history of the other 
 lands, it may be noticed that several records bear witness 
 to the free tenure of Cockride manor while it continued 
 part of Kenardington. 
 
 Thus the documents cited in the last note agree in de- 
 
 Inq. post mortem Hamo de Gatton, 20 Edw. I. 25. 
 
 P Inq. post mortem H. de Cramaville, 26 Edw. I. 21. 
 
 * Hast. vii. 248. See Inq. p. mort. T. de Normanville, 11 Edw. I. 37, 
 and assignment of dower of Dion, wife of T. de Normanville, jun., 11 Edw. 
 II. r. 68 ; Inq. p. mort. of this T. de Normanville in 1 Edw. II. 
 
 T 
 
322 The Tenures of Kent. [chap. 
 
 scribing "Kenardington cum Cockride" as being held in 
 capite by military service of castleguard; and in Cheyney 
 v. Edolfe reference is made to a family settlement con- 
 tained in the will of Sir J. Cheyney of Sburland, dated in 
 7 Edw. IV, which described the same tenure in capite. 
 
 Cyriac Petit mentions other evidences in the Feodary 
 of Kent to the same effect, viz. the inquisition taken on 
 the death of Eoger Cheyney in 15 Hen. VII., and another 
 on the death of Eoger Cheyney in 4 Hen. VIII. 
 
 The manor of Bleane and Hoade Court in the hundred 
 of Whitstaple affords another example of the rule which 
 we are discussing. The estate (which had been the pro- 
 perty of King Edward the Confessor) was given to Hamo 
 de Crevequer as parcel of his barony, to hold in capite. It 
 contained one "suling," of which about a quarter lay in 
 *Hast.viii. demesne, according to the entry in Domesday Book *. 
 Sir Hamo de Crevequer, who died in 47 Hen. III., 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, Kobert de Crevequer; whereas 
 all his customary lands and tenements were divided among 
 the same Bobert and five other heirs male. 
 
 Hasted notices that in a subsequent reign the manor 
 was part of the dower of Margaret Lady Bos, 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 
 
xiv.J 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 Paul'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 *." * Cai.Gen. 
 
 r 663. 
 
 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 Blean was 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 Eaversham was confirmed by the same 
 king. Almost all the remainder was given to the Prior of Christchurch 
 by Eichard 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 Reformation. 
 
 s Ing. post mortem 32 Edw. I. 37. 
 
 ' See also Inq. post mortem Margaret Scrope, 1 Hen. VI. 
 
 y2 
 
324 The Tenures of Kent. [chap. 
 
 half a knight's-fee, held formerly of Simon de Cray in 
 Crey Paulin, by Peter de Huntingneld and Simon, at 
 Brook." 
 
 2. " John de Pulteney and others paid for half a knight's- 
 fee parcel of Paul's Cray, called Kechyngrove." 
 
 3. Of Poot's Cray he says, "In the Book of Aid is 
 entered thus: 'Of Sir Simon Yagen and the Prior of 
 Southwark for one fee in Potis Crey, which the heirs 
 of T. de Wardroba and the tenants of Eob. Crevequer 
 held of Hamo Crevequer, of which Simon holds a moiety 
 . . . and the Prior holds the other moiety, in the fields 
 called Le Hoke and Craywood in this parish.' " 
 
 4. Of North Cray : " In 20 Edw. III. it was held by 
 Eog. de Rokesle and his co-parceners as half a knight's- 
 fee"." These co-parceners, portionarii, are not co-heirs, 
 but the persons of different names and families among 
 whom the whole fee had been subdivided by sales, 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 x . 
 
 u Hast. ii. 127, 130, 144. 
 
 x 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 by Knight-service, 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 
 in 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, 66J 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 
 Northfieet 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 y ;" of 
 the former his eldest son was heir, of the latter both his 
 sons together z . 
 
 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. post 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 tenus in capite, ines ascun 
 fait tenus in capite de l'Archevesque per le Charter de Hoy." 
 
 z Inq. post mortem, 34 Edw. 1. 55. 
 
326 The Tenures of Kent. [chap. 
 
 from gavelkind qualities of lands anciently held by knight- 
 service may be gathered from the inquisitions respecting 
 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 Godwin, and afterwards to Zing Harold his son. It 
 * Hast, was therefore "thane-land," or allodium*. This estate 
 afterwards formed part of the barony of Eustace, Earl of 
 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 held it. 
 It paid tax then, and pays now, for seven sulings. There are 
 thirty-three ploughlands of arable, of which three are held in 
 demesne, and thirty held by sixty-seven villani (socage tenants) 
 
 and five husbandmen Twenty -six acres of meadow-wood 
 
 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 
 Co. utt. sergeanty of being the Earl's Veltrarius 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 Balph de Otter- 
 
 a Inq.post mortem, 31 Hen. III. 11 : "Petnis Alius dicti Elite, primo- 
 genitus suus, ejus est proximus heres." 
 
 + 
 95 a. 
 
xiv.] Tenure by Knight-service. 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 b *. * Cai.Gen. 
 
 & 369. 
 
 In the next year Ealph de Otterinden died, and a ques- 
 tion arose whether the king or William de Leybourne 
 should have the custody of his lands and the guardianship 
 of the heir. The jury impanelled to decide this point 
 found, that "William de Leybourne 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 t, to whom the inheritance could t Co. ntt. 
 
 87 b. 
 
 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 born of the 
 marriage or not J. J Rob. 
 
 But in this case the jurors decided, that the widower c . I.' "' 
 should have for his life the whole of the lands ■ and tene- 
 
 • 
 
 b Inq. post mort.j 14 Edw. I. 17. c Inq. post mort., 15 Edw. I. 29. 
 
328 The Tenures of Kent. [chap. 
 
 ments, expressly on the ground, that issue was born during 
 the marriage d . 
 
 a Inq. post mortem, 21 Edw. I. 123. As the inquisition by which this 
 fact is known is curiously minute in its details, it may be worth while 
 to translate so much of it as relates to the matter mentioned in the text. 
 It is extracted in the Calendar Geneal. 469 : — 
 
 "Inquisition taken on the death of Joanna de Otterinden, wife of 
 George de Laverton, concerning the birth of issue of their marriage, by 
 reason of which the lands of the said Joanna ought to remain in the 
 ownership of the said George de Laverton for his life by the Curtesy of 
 England. 
 
 "The jurors declare upon their oath that George de Laverton married 
 the said Joanna on Wednesday, the vigil of the Circumcision, in the 21st 
 year of King Edward I., from which time they dwelt together as man 
 and wife until Monday on the vigil of St. Michael's day in the same year, 
 within which time she conceived issue. And on the day of her death 
 she bore a daughter at daybreak, after which she received the last offices 
 of the Church, and thereupon died on the same day. Which daughter, 
 Andrew, Rector of the church at Otteringden, in the chamber of the said 
 Joanna in Otteringden, baptized at the day-break alive and crying ("bap- 
 tisavit in aurora diei vivam et clamantem ") by the name Joanna. Her 
 godfather was John de Wynefield, and her godmothers Eleanor de Sin- 
 desham and Albreda de Stoneacre, who gave the name to the infant, 
 naming her Joanna as aforesaid. She liyed 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 modern 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 
 hath by his wife is heard to cry, for by the cry it is proved that the child 
 was born alive. Therefore queerer (§ 35.) Coke collects the opinions of 
 Glanville, Bracton, Britton, and Fleta, and cites the Stat, de tenentibus per 
 legem Anglice 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 infant." 
 
xiv.] Tenure by 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 e ." 
 
 The mother of these co-heiresses was endowed with a 
 rent-charge out of the lands of Boughton Aluph f . 
 
 She married Eobert de Burghersh in the year last men- 
 tioned, and, according to Hasted, died seised of this manor 
 in 34 Edw. I., being succeeded by his son, Stephen de 
 Bur "hersh * . * Hast. vii. 
 
 . . . 387. 
 
 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 
 Aluph 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. 
 
 e Inq. post mortem 81 Edw. I. 20. 
 
 f Inq. post mortem 14 Edw. I. 17, and 31 Edw. I. 8G. 
 
330 The Tenures of Kent. [chap. 
 
 " Thomas de Aldon b paid for one knight's-fee which Thomas 
 de Gatesden, Joh. Paynell, and George de Laverton held in Bueton 
 Olauf of the king as of the honour of Boulogne." 
 
 Of the subsequent devolution of the estate, Hasted's 
 account is perhaps sufficient. Among other things he 
 has noticed that in 12 Hen. VI. it was held at the common 
 law by a tenant by the curtesy in the manner above 
 described. 
 
 We have seen that besides these inquisitions post mortem, 
 which contain a detailed history of the tenure and descents 
 of each estate of importance in the county, there are in- 
 terspersed in many other records notes of judgments and 
 memoranda of tenure, which often enable us at the present 
 time to determine, without further trouble, the question 
 whether particular lands are in a customary tenure, or 
 descendible at common law. 
 
 Thus in the published abridgment of the Pleas of the 
 * Mic. 9 Crown it is recorded * that Boynton, in Swingfield, was 
 
 Joh. ii. 
 
 , 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 \ 
 
 * " In Boughton Aluph was the ancient seat of the noble family 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."— (MS. Book of the Tenures of Lands in Kent from 
 the Records, hj John Philipot, Blanehlion ; Lansd. MSS., 276.) 
 
 On ihe fly-leaf of this MS. is a note, " This book is of great use for 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. - 
 
 h By a suit arising out of the Parliamentary Survey of 1649, the common, 
 
xiv.] Tenure by Knight-service. 331 
 
 In the same place we find that " Charing manor" was 
 also held at the common law *. This was not the para- * incert. 
 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 "^nrthe 
 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." f Hast. vii. 
 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 Omissa, 
 
 Edw. I. 
 
 manors and lands, the freedom of which may be verified ■-. 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 in 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 francalrnoigne, 
 and formed a portion of the abbot's barony at the Conquest. 
 According to Thome ||, the chronicler of the abbey, it was II Decern 
 
 Script. 
 or waste land, of this manor was found not to belong to the Crown as 
 supposed, but to be part of the barony of Eolkstone. (Hast. viii. 122.) 
 
33 2 The Tenures of Kent. [chap. 
 
 given in francalmoigno in the middle of the ninth century 
 by a layman, " as freely as his lord had before given it to 
 him." This indicates that it had been held freely, or 
 allodially, as " thane-land." In Domesday Book it is de- 
 scribed as containing two " sulings" and three quarters 
 (yokes). It was held by the abbey until the dissolution 
 of monasteries, when the king "granted this manor, with 
 Abbots- Court (the principal mansion, or court-lodge), to 
 Walter Hendley, 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 
 * Hast wife Katherine, to hold in capite*P 
 
 He died leaving by her " two sons, who successively be- 
 came possessed of it by virtue of the above grant." Had 
 the manor and demesnes been gavelkind, the two sons 
 would have divided the inheritance as heirs male by the 
 custom. So much we learn from Hasted. But there is 
 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 having 
 died without issue, they were succeeded by their half- 
 brother, Sir Thomas Pinch, the reversion having been 
 secured to him by letters patent in 5 Elizabeth. On his 
 death a dispute arose between his sons, which has not 
 been reported, but the papers relating to which may be 
 found by reference to the Calendar of proceedings in 
 Chancery in the reign of Elizabeth. The bill contains 
 the usual claim, that the land lying in Kent must be taken 
 to be gavelkind, and Sir Moyle Finch, the eldest son and 
 heir-at-law, shewed by his answer that from time imme- 
 morial the property in dispute had been held by the abbot 
 
xit.] Tenure by Knight-service. 333 
 
 of St. Augustine's in capite by military service ; the proof 
 was carried 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 '. 
 
 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- 
 cluding 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 of Finch v. Finch, 
 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 
 Roper 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. 
 
 J 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, 
 
 1 See the inquisition taken'on Ms death in 1614, preserved at the Office 
 of the Public Kecords. 
 
 k Sir Moyle Finch's Case, Co. Entries. 
 
334 The Tenures of Kent. [chap. 
 
 so that part of the property in dispute descended to the 
 elder brother alone, and the rest to the two brothers as 
 co-heirs by the custom of Kent. This explanation will he 
 confirmed by comparing the history of the manor of Sturry 
 with that of Burmarsh, proved by the case of. Finch v. Finch 
 not to have been gavelkind. Both were given long before 
 the Conquest to the abbey of St. Augustine in francal- 
 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 not, therefore, have been of such different tenure, 
 as that one should be descendible to the eldest son, and 
 the other in gavelkind. Thus the freedom of Burmarsh 
 implies the same free tenure in all the estates held by the 
 abbot by barony at the date of the Domesday Survey: 
 for instance, as to the two manors of Bepton in the same 
 parish of Ashford, which were always held of the abbot 
 by knight- service, as appears by the Testa de Nevil and 
 the other rolls of military estates in Kent. Again, the 
 manor of Snave or Snavelees 1 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 Barnards, alias Snavelees, were held 
 by ancient knight-service by the family of Orlestone. In 
 35 Henry YIII. 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 
 
 1 "I find," says Hasted, "that as high as King Richard the First'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.) 
 
 m The abbot's manor of Stodmarsh affords an txample of what has been 
 
xrv.'J Tenure hy Knight-service. 335 
 
 his military tenants, which now are in lay hands, as well 
 as of those which are held in francalmoigne by virtue 
 of the grants of Henry VIII. 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 Northborne. To these may be added Eipple 
 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 
 fact that all these estates were held by the same owners 
 >.nd under precisely the same circumstances for so many 
 centuries. 
 
 There are several more memoranda in Petit's Peodary, 
 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 effect : — 
 
 "Thomas Culpeper paid the military aid due in 20 Edw. III. 
 for half a knight's-fee held by Sarah de Bresing in Bresing and 
 
 said respecting the value of ancient exemptions from tithes ; the demesne 
 lands, which were held in harony, are distinguished from the gavelkind 
 {terra villanorum) by their freedom from all charges from great tithes by 
 reason of an ancient commutation. (Hast. ix. 146.) 
 
33^ The Tenures of Kent. [chap. 
 
 Langley, of "William de Leybourne: this was held in 35 Henry 
 VIII. by the widow of John Astry, who died in that year. It 
 comprised two acres of land and ten shillings rent of assize from 
 freehold tenants in Brising, held of the king as parcel of his 
 manor of Langley, (which was within the fee of the Duchy of 
 Lancaster). This appeared from the inquisition taken on the death 
 of John Astry, 35 Hen. VIIL, and it was likewise proved to the 
 Commissioners at the time of taking the inquisition, that these 
 lands in Brising were held by knight-service. In proof of which 
 an indenture of lease of the same lands of the date of 5 Edw. IV., 
 was produced in the Court of Wards and Liveries by the uncle of 
 the said John Astry." 
 
 As an instance of the way in which the estates held hy 
 ancient knight-service became subdivided among the de- 
 scendants of co-heiresses, we may take Petit's entry re- 
 specting a small estate in East Sutton or Sutton Court. 
 The principal manor with the demesnes were " held by 
 Hugh Soldanks by knight-service in the reign of Henry 
 III. ; his descendant, Stephen Soldank, held it in the reign 
 of Edward I., according to the Book of Knight's-fees in the 
 * Hast. ix. Exchequer *." 
 
 559 
 
 Soon afterwards the manor and most of the lands in it 
 appear to have been acquired by the Abbey of St. Augus- 
 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. Eynes. 
 
 In Hasted's notes upon this record are also found memo- 
 
xiv.] Tenure by Knight-service. 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, 
 " JVota, 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 Sheriff 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 YIII. 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 Boll of lands, for 
 which the tenants paid the feudal aid towards the marriage 
 of Blanche, eldest daughter of Henry IY. Petit has further 
 noted a division of the demesne lands between the daugh- 
 ters of B. Graven ey in the reign of Henry YIIL, and the 
 sub-division of a third part between the heirs of one 
 daughter, named Kempe, Judd, and Maxton 11 . 
 
 n This " Godwinston" is probably Goodneston in the Hundred of Wing- 
 ham. See Kent. Arch. Soc. v. 275. It must not be confounded with 
 the Godwinston or Goldwinston near Sittrngbourne, which was ancient 
 demesne and gavelkind. See Originalia in the Exchequer, 3 Edw. III. 
 r. 1 1 : " Whereas it is shewn, that Juliana de Leybourne, deceased, held 
 the manor of Goldwinston with its appurtenances in gavelkind of Isabella, 
 Queen of England, and that Henry and Juliana her children are her heirs, 
 &c." See also Inq. post mortem "William de Leybourne 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 MSS. 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 
 of the aid of 20 Edw. III. 
 
 One of these was Lowden in Eolvenden, which (as 
 Hasted has shewn with sufficient clearness) was held by 
 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 Earnborough 
 since the reign of Henry III., are inserted in the Eoll of 
 Blanch-lands. 
 
 Such are the "ancient knight-service" manors and de- 
 mesne lands of Chelsfield and Goddington, of Worsted and 
 Goddington alias "Wattons in Frindsbury, for which the 
 family of Goddington paid aid in 20 Edw. III. Besides 
 
 Hast. vii. 193. He cites the Testa de Neril and the Book of Aid, as 
 well as the Eoll of Blanch-lands of 4 Hen. IV., and the reference to the 
 writ of partition among the heirs of Kadwell. (CI. 565, Trin. 1, Jac. II.) 
 
xiv.] Tenure by Knight-service. 339 
 
 these we find in the same list Farnborough and Kemsing, 
 the ancient inheritance of the Grandison family, and among 
 others the manors of Hastingleigh, Aldelose, Monk's Hor- 
 ton and Horton Kirkby, Brabourne 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-Keginald in vm ' 
 16 Edw.. II., as well as by later entries in the Escheat 
 Polls, as for example, "Julia Ingle thorpe 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 
 knight'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 Jeffrey there dwelling." 
 
 And with reference to the estate disputed in Lowe v. 
 
 p The ancient tenure of all these estates can be verified by the usual 
 reference to Domesday Book, tlie Testa de Nevil, &c. ; but in reality the 
 entry 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 Frensham in Bolvenden, 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 Eresingham held it then, 
 and paid aid for it, as holding it by knight-service, at the marriage of 
 Isabel, that Prince's sister." — {Hast. vii. 194.) 
 
 z2 
 
340 The Tenures of Kent. [chap. 
 
 Paramour ,q , and wrongly supposed by Hasted and Kobin- 
 son to bave been gavelkind, be writes : — 
 
 "Harty manor, Champion's Court (in Newnham), and Norton 
 (in Faversham Hundred), are all of the same tenure, and owe 
 castleguard rent to Rochester Castle, as is shewn by the inquisi- 
 tion post mortem of William Capell in 7 Hen. VIII." 
 
 Tbe inquisition post mortem of Anne, beiress of Tbomas 
 Cobbam, taken in 20 Henry VIII. sbews, tbat tbe manor 
 of Allington Cobbam was beld of the king by knight- 
 service in chief; that tbe manor and lands in Orkesden 
 were held of Lord Zouch by the same tenure, and those 
 of Vielston of the Archbishop of Canterbury by the same 
 military service r . 
 
 In a volume of memoranda by Hasted, which is pre- 
 served in the British Museum, is an important note con- 
 cerning lands m Tirlingham, Newington, and neighbsuring 
 parishes. 
 
 9 Besides the evidences given earlier in discussing that suit, on which 
 Robinson grounded a doubt whether trial by battle was not allowed in 
 actions for gavelkind land, we may refer to the Escheat Rolls 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. post 
 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, widow 
 of John de Campania : it then consisted of a messuage and 400 acres 
 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 Campania. (Testa 
 de Nevil.) 
 
 * Orkesden is now called Aston Lodge. It was anciently held of the 
 Archbishop of Canterbury as part of his barony. See the Testa de Nevil, 
 and the list of the military lands held of the Archbishop in the Red Book 
 of the Exchequer, 132. 
 
xiv.] Tenure by Knight-service. 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 
 Pee or Dimohureh, Tirlingham, Wolverton, Ackhanger, 
 Swetton, 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 eapite by 
 reference to the Escheat Bolls *. We have shewn earlier 
 that they were never held in gavelkind. 
 
 The same proofs are produced for the manor of Burde- 
 ville *, and for Bingley "Wood in Great Buckland u . 
 
 An estate containing 100 acres, and belonging to Ley- 
 bourne Eectory, and situated mostly in Wrotham parish, 
 
 B Inq. post mortem of Thomas Palmer, 23 Hen. VII. ; of Edw. Poy- 
 nings, 14 Hen. VIII. Ecoles is further noticed to have belonged 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. 
 
 u Th. Erognall, 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, 
 30 Hen. VIII. 
 
342 The Tenures of Kent [chap. xiv. 
 
 is shewn by the Book of Aid and the notes upon it in the 
 Feodary of Kent, to have been held by ancient knight- 
 service as one-thirtieth part of a knight's-fee (the aid paid 
 being 16d. at the rate of 40s. 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 
 county. The notes of Cyriac Petit identify the estates 
 mentioned in the earlier Book of Aid down to the end 
 of the reign of Henry VIII., 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. 
 
CHAPTEK XV. 
 Tenure in Socage. 
 
 Authority of the Book of Aid. — Tenures in capite. — The Baronies of 
 Boulogne and Peverel. — Custom respecting Knights of the shire in 
 Kent. Conversions of military tenure into socage in capite. — Bents in 
 kin&.—SOTEMERE, CAPELL, BURHAM, WOODS COURT, 
 BJJOKLANB. — Bent service of a rose. — Manors held in capite hy the 
 Ahbey of St. Mary Grace. — Estates of St. Stephen's Chapel, "West- 
 ■axD&tex.—MAPLE8C0MBE,H0CKENDEN, MIN8TER in Thanet, 
 SWANS COMBE.— Estates of the Cobham i&mi\j.— OXENSOATH, 
 PRESTON, ROTINO.— -Case concerning lands in PLUMSTEB.— 
 Manor of HALTON. 
 
 Notwithstanding 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 Cyriac Petit's notes 
 on some of the entries in the Peodary 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 The Tenures of Kent. [chap. 
 
 a great extent in forming the Appendix to this treatise, 
 was noted down to the end of 1612. 
 
 We may here conveniently recapitulate some of the 
 reasons for the value thus assigned to this record. The 
 list of lands was taken from those earlier returns, preserved 
 in the Black Book of the Exchequer and the Testa de 
 ■Nevil or Book of Knight's-fees, which were furnished by 
 the immediate tenants of the Crown, when any of the 
 three great feudal aids were required by the king. The 
 returns were compared with surveys taken by the royal 
 officers, and when found to be correct were preserved " in 
 the hutches in the Exchequer," as evidence of tenure for 
 future occasions. 
 
 These aids for the king's ransom, for marrying his elder 
 daughter, and knighting his eldest son, were paid only by 
 those persons who held immediately of the Crown, i.e. who 
 were in the formal sense of the phrase ' tenants in capite? 
 The most that could be levied was a sum of 40s. for each 
 knight's fee or portion of socage, worth yearly £20, and 
 held in capite. 
 
 Thus we learn from Madox that "in the elder times 
 aid was paid by those who held lands of the king by 
 barony, or by knight-service, or by sergeanty, together 
 * Madox, with knight-service, or by socage in capite *." 
 
 Exch. i. t> • • 
 
 572; Being levied exclusively on tenants in capite, they could 
 
 Geneai.39. not be taken from gavelkind lands f, none of which were 
 t ^3 Real g0 j^ un i e ss we may speak of the tenements in the four 
 Report. manors f anc i en t demesne in Kent as " gavelkind in 
 
 capite;" but these last lands are not mentioned either 
 
 in the Book of Aid, or in the earlier and later records 
 
 of the same description. 
 
 The aids pour fille marier and pour /aire fits chevalier 
 
 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 Rolls of Parliament furnish us with an example in 
 the reign of Henry YL, of the use which was made of the 
 Book of Aid in determining tenures of land in Kent *. * Rot. 
 
 Pari. iv. 
 
 In the ninth year of that reign the Commons granted 369. 
 an aid or subsidy to the king ; this was not actually 
 collected f, but the proceedings relating to the grant will t^ 1 *- 
 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 Durford discharged of paying aid, provided it be clear 
 that he holds in francalmoigne, and that he pay for all held by knight- 
 service."— (i2o«. Pari. ii. 222, b.) 
 
 Madox, Exch. i. 529, and cases there cited : Sunninghall's Case, Brev. 
 Mie. 2 Edw. II. 31 ; Coelcfield's Case, Brev. Mie. 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 Corona, 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 capite, 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 rh chief as of his honour of Peverel by 
 knight-service;" and the inq. post mortem of Alice and Eichard Charles 
 in 1 Eic. II. and 9 Eic. II. 135, who "held Great Delce in Kent of the 
 king in chief as of his honour of Peverel and Haghnet by knight-service.'.' 
 ■—{East. 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 
 honour of Boulogne. 
 
346 The Tenures of Kent. [chap. 
 
 knight's-fee, provided that persons holding such lands in 
 Kent, who were chargeable for the wages of the knights 
 of the shire b , should pay 10s. for the same estate. The 
 Book of Aid of 20 Edw. III. was expressly taken as the 
 canon for determining which were the military lands held 
 in capite, and it was further provided that no ecclesiastics 
 should contribute for lands, which were given in mortmain 
 before the compilation of this Book of Aid. 
 
 The ancient rule observed in the compilation of this 
 book, was as follows: — "The aid shall be paid now 
 (20 Edw. III.) as by ancient law or custom was used, from 
 every knight's-fee and every estate worth yearly £20 of 
 socage held immediately of the Crown." 
 
 Much knight-service land was in different reigns turned 
 
 b An instance was given in the preceding chapter of land pronounced 
 to be "ancient knight-service," and not gavelkind, because the tenant 
 contributed to the wages of the knights of the shire. There are several 
 notices of this usage in Kent upon the Eolls of Parliament, which have 
 not been in general noticed in the histories of the county. 
 
 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 England, not- 
 withstanding that the said wages had before always been levied on the 
 military lands ("fees de Chivalers de diet Counte de Kent") and no 
 others. But the king ordered the ancient usage to be observed. (Rot. 
 Pari. iii. 53 a.) 
 
 And in 2 Hen. V. a petition was presented to the king praying that all 
 military tenants in Kent (excepting the tenants of ecclesiastics and tem- 
 poral peers) should contribute to these wages, and that none should be ex- 
 cused, and calling attention to the immemorial usage of the county, that 
 none but tenants by knight-service should contribute. "Comme les gages 
 de Chivalers qui veignent al Parliament pur le Counte de Kent ne sount pas 
 levables de autres gens, soloncque la custume illoecqs de tout temps dont 
 memorie ne court use, sinoun de ceux qui teignent lour terres dans Kent 
 par le services de Chivalers," &c. This petition was granted. The note 
 previously quoted from Cyriac Petit shews that the custom remained in 
 force during succeeding reigns, and it might in some cases be very useful 
 to shew that particular lands contributed to these payments, as an evi- 
 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 Noel's 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. utt. 
 
 The tenure of socage in capite was changed by the 
 
 c " Quant le Roy dit ' pro omnibus servitiis et demandis,' donques il 
 expresse son intention que seroit Socage." — {Stephen v. Holmes, Litt. 47, 
 33 Hen. VI. 7, 7 Co. 123, Lowe's Case.) 
 
108 b 
 
 348 The Tenures of Kent. [chap. 
 
 statute 12 Car. 2, c. 24, into free and common socage, 
 and its distinctive burdens were then abolished. Its only- 
 importance, therefore, at the present day, so far as this 
 enquiry is concerned, lies in the fact that full proof of 
 a tenure in socage in eapite, properly so called, is an answer 
 to any presumption that the land was ever gavelkind. 
 
 We have before shewed that " gavelkind in eapite" 
 could only exist in the four manors of ancient demesne 
 in this county. 
 
 Besides the petty sergeanties above enumerated, we find 
 
 many instances of lands (at first military) held of the king 
 
 Co. litt. by a "free service*," not pertaining to war, and only to 
 
 be distinguished from common socage by the fact that the 
 
 king was the immediate lord of the fee. 
 
 Such were the tenancies where the service of a ship d for 
 the king's passage to Gascony was due, or where the tenant 
 was bound to provide a leader of hounds e , a keeper of 
 
 d The tenant of Bekesborne, alias Levingsburn, was bound " to find 
 a ship called a Baard," for this purpose. (Blount's Tenures, 288 ; Hundred 
 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 Grange, 
 in Gillingham, as belonging to the port of Hastings, and within the 
 liberty of the Cinque Ports. They are therefore included among the 
 lands held by sergeanty in the list at the end of the Testa de Neml 
 (Kent). 
 
 A very ancient record, compiled by Michael Berisford, Peodary of 
 Kent (a copy of which is found among Lambarde's Collectanea Historica), 
 contains this account of the two manors : " lis trouveront ces (2) neifs 
 sur la somonce de 40 jours, armees et en chescun neif 20 hommes, et le 
 maistres des mariners, et ils (the tenants) maintiendront a leur costes 
 demesnes" (at their own expense).— ( Cotton. MSS. Vesp. A. 5, 67.) 
 
 For the tenure of the Grange estate in later times by the service of 
 a ship, see Inq. post mortem Edward Bam, 20 Hen. YII. 
 
 e See an inquisition on the death of John Engaine, 31 Edw. I., 
 Calend. Geneal., 777: — "He held a mansion and fourteen virgates of 
 land by the sergeanty of finding keep for the king's harriers and brach- 
 
xvi] Tenure in Socage. 349 
 
 falcons, and the like, or was required to pay rent to the 
 king either in money, or necessaries for the chace and 
 the household 1 . Thus in the reign of Henry III. the 
 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 s was at one time held in socage 
 in 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." 
 
 f " There was but little money in specie in the realm in those early- 
 times (before the reign of Henry I.) Eents due to the king were wont 
 to be rendered in necessaries for his household. Afterwards the revenue 
 of the Crown was paid chiefly in gold and silver, but sometimes in horses, 
 hounds, birds for the chace, and other things." — (Madox, Exoh., i. 272 ; 
 Dial, de Scacc, i. c. 7.) Thus Stephen de Heringod, a Kentish landowner 
 several times mentioned above, is said to have paid the king 37s. 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 gupillerettis,'' which seem also to be foxhounds. 
 (Mag. Eot., 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 the wolf, 
 ("fugacionem lupi quam I. Lovett pro terra mihi debebat,") see the 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. Eccles. 
 Ckristi, Cotton. MSS. Yesp. A. 5.) 
 
 s 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 Edw. I. 49, 
 to hold the manors and demesne lands of Burham, Cowdham, and West 
 Greenwich of the king by barony, the first by service of repairing Eochester 
 bridge and a house in Dover Castle. His son, " Geoffrey de Saye, died 
 in 33 Edw. I., holding Burham in capite" by the same service. (Hast. 
 iv. 411.) 
 
35<o The Tenures of Kent [chap. 
 
 furnish many similar instances, from which we need not 
 select more than the following. A tenant, named Colsted, 
 is shewn by inquisition taken on his death in 18 Edw. I., 
 to have held the manor of the same name in socage of the 
 king, scilicet, by providing yearly one sparrow-hawk, or, 
 in lieu thereof, two shillings at the Exchequer. The 
 tenant of Goddisland, otherwise called Woods-Court, one 
 of the manors held of Chilham Castle, owed the same 
 service, which being certain could not be higher than 
 
 * Rot. socage *. 
 
 330 b. 1 ' In the same way the manor of Buckland, near Dover h , 
 
 was held of the Crown at the rent of a red rose in lieu of 
 
 t Co. Htt. all services "|", by virtue of a grant made in 48 Edw. III., 
 
 Hast. ix. ' which changed the tenure from knight-service to socage 
 in caj)ite l . The same change was made in 10 Edw. II. 
 as to one moiety of the manor and lands of Queen-Court, 
 in Ospringe ; and as late as 3 Hen. VII. we find by the 
 Escheat Eolls that the 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 : u for one 
 part of a manor shall not be of another nature than the 
 
 % Co. utt. rest ±." 
 
 78 b. T 
 
 h Buckland. This must not be confounded with the manor of the same 
 name near Faversham, alleged by Hasted to have been portioned as if of 
 gavelkind nature, (vi. 399,) nor with Great Buckland, in Maidstone, 
 which was in reality gavelkind at first, though disgavelled as early as 
 the reign of King John. (See case of Be Beclaunde v. Be Beclaunde, Itin. 
 Kane., 55 Hen. III. 61, extracted by Robinson, 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.) 
 
 1 Wheeler's Case, 6 Co. 6. 
 
xv.] Tenure in Socage. 351 
 
 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, Leybourne, "Watering- 
 bury, and Gore in Upchurch, 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 *." ) * ^r 
 
 ' Pari. 1. 
 
 This gift was confirmed to the abbey in francalmoigne, iW- 
 
 with no reservation of rent, in 12 and 13 Eic. II. t L Hast- v-i " 
 
 ' ' 27. 
 
 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 t*he manors 
 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 II. in his 22nd year k J. t Eo *- 
 
 The maxim, that one part of a manor cannot be ofi78t>. 
 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 \\ R fJ 
 tenure it continued at least as late as the reign of Ed- Exch. 
 
 157 d* 
 
 k These lands, &c, were part of the escheated estates of the Infanta of 
 Kent, Juliana de Leybourne. 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 Pluekley on these terms, 
 28th Feb. 9 Eic. 2 ; and Isabel W~asard 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, Kot. Pari. i. 
 100 b, 451a.) 
 
352 The Tenures of Kent. [chap. 
 
 ward VI. 1 The other moiety, therefore, was held at com- 
 mon law, though it was in the reign of Edward I. changed 
 to a socage tenure : — 
 
 "William de Valoignes held of the king a moiety of the manor 
 of Maplescaump, by the service that if the king should come 
 thither to hear mass, he should provide the king with a penny 
 for an oblation m ." 
 
 In the Escheat Eolls of 3 Edw. II. an entry records 
 that Isabella Mohaunt, or de Monte Alto, " held in capite 
 13 acres of arable land at Hockenden (in St. Mary Cray) 
 by service of paying yearly at the Exchequer thirteen 
 pence with her own hands"." "We may compare with 
 this another entry under the same year, relating to Stephen 
 de Burghersh, who then " held in capite ut de corona by 
 rent-service the manor of Stowting, with 100 acres of 
 arable in demesne, besides pasture, woods, &c, and the 
 rents of the freeholders." 
 
 In later reigns, especially after the dissolution of the 
 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 
 
 1 See, inter alia, the Inq. post mortem of John Lovelace in 2 Edw. VI. : 
 " Tenet dimidium manerii de Goodneston de Eege in capite per servitium 
 militare, et manerium de Maplescombe et 500 acras terrse, &c, in Maples- 
 combe Farningham et Eynsford de Eege ut de Castro de Dovor per ser- 
 vitium militare. T. Lovelace est ejus filius et hares." 
 
 m Blount, Ten. 211 ; Harris, Kent. 219; Hast. ii. 485; Thorpe, Oust. 
 Eoff. ; Eot. Hundr. Kancise. 
 
 n This Isabella Mohaunt held other lands in Hockenden of the Prior of 
 Christchurch, which were gavelkind, viz. a messuage and 42 acres of 
 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' court 
 in Orpinton. A deed reciting her tenure is fully extracted in the Appen- 
 dix to Somner's Gavelkind, No. 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 * LHt. 
 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 : "Of 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 Upchurch (which was disgavelled 
 while in the tenure of Eoger de Leybourne) 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. Wbodin, 
 supra, and Lambarde, Peramb. 534: "If 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 
 hi 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 Cary, 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 capite or by knight-service ; and to hold the rents 
 of assize paid by the freeholders (the 'penny-gavel' and 'corn-gavel' 
 rents) of the king in capite by the service of one knight's-fee."— (Bast. 
 x. 276.) 
 
 a a 
 
354 The Tenures of Kent. [chap.' 
 
 granted it to Sir C. Hales in socage in his thirty-fifth year, 
 in which tenure it continued, as we learn from a license 
 given to E. Stoneley in 22 Elizabeth, "to alienate the 
 manor and lands of De la Gare, which are held in socage 
 in capite v ." 
 
 "We may take as an example of the castleguard manors, 
 the tenure of which was changed to socage in ancient 
 times, the manor of Swanscombe, before mentioned in the 
 chapter on castleguard. The inquisitions taken on the 
 deaths of Edmund Earl of Kent, and of Eichard Talbot, 
 *Hast.iii. in 4 Edw. III. and 31 Edw. III. respectively*, shew that 
 this manor with its demesnes and appurtenances was held 
 in capite as of Eochester Castle by payment of rent in lieu 
 of all services, i.e. 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 Eolls of 3 Elizabeth, that 
 " a moiety of the manor of Patrixborne with 40 acres of 
 land was granted to Sir Henry Cheyney and his heirs, to 
 hold in capite as of Eochester Castle, i.e. in socage, in 
 which tenure also was the manor of Bilsington, then 
 belonging to the same owner. The other moiety of Patrix- 
 borne, with 20 acres of arable and 20 acres of pasture was 
 held by him of the Crown by knight-service q . 
 
 P See the inquisition on the death of Thomas "Wardgare who died hold- 
 ing this estate in socage of the Crown, Rot. Esch. 33 Eliz., pt. 12. 
 
 q The records of the Cobham family, extracts from which are printed 
 in the Collectanea Typographica, afford other illustrations of the state- 
 ments in the text. 
 
 Thus, " Stephen de Cobham holds in capite 40 acres called Ovenhelle 
 in Boxley by service of sergeanty." (Inq. post mortem Steph. de Cobham, 
 7 Edw. III.) 
 
 The same estate appears to be described in the inq. post mortem of 
 Thomas de Cobham, of Eundal, in 17 Eic. II., viz., "he held of the king 
 
xv.J 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 63 ' 
 changed the military tenure of his lands in Preston to a 
 socage tenure in fee farm f. Having been held in barony + G»ie, 
 at the Conquest, according to Domesday Book, this ancient script. 
 change of tenure could not create any gavelkind qualities H^l'ix. 
 in the land r . It was held, with the hundred of Preston, 136> 
 in socage of the abbot by Juliana de Leybourne, according 
 to the inquisition taken on her death, 3 Edw. II., 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 £. t Hast. 
 
 in capite 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 '"Wenhill' in Boxley." (Blount, Ten. 61; Hast. iv. 345; Co. 
 litt. 108 b.) See also the inq. post mortem of Eeginald Cobham, taken 
 in 35 Edw. III., according to which, "he held the manor of Aldington 
 of the king in capite as of his castle of Rochester, by castleguard rent 
 of 14s. in lieu of all services ; also the manor of West Cliffe in capite ; 
 also the manor of Oxsted in capite as of the honour of Boulogne (Co. litt. 
 77 a.), and the manors of East Shelve and Burdfield of the king in capite 
 as of Dover Castle, by the service of 3s. 9d. castleguard rent," &c. 
 
 r "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 Vitalis 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 capite, 
 by a grant of Hen. VIII. in his 36th year, and remained in his 
 ownership when all his gavelkind lands were disgavelled in 2 and 3 
 Edw. YI. 
 
 A a 2 
 
356 
 
 The Tenures of Kent. 
 
 [chap. 
 
 * Gale, 
 
 Decern 
 
 Script. 
 
 1942; 
 
 Hasr. 
 
 ii. 206. 
 
 An old deed preserved among the archives of the • same 
 abbey shews that " a jury of grand assize found that the 
 ancestors of Eichard de Eos had held a moiety of Plum- 
 sted of the abbot at a fee-farm rent *." 
 
 Had this been gavelkind, a jury of gavelkind tenants 
 would have tried the question ; 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. 
 
 The monasteries in Kent, which held their lands in 
 
 francalmoigne, possessed the privilege, as we have seen 
 
 before, of alienating without special license from the king, 
 
 as was conceded early in the reign of .King John, "after 
 
 + Abridg. examination of many old evidences t." But the privilege, 
 
 Pleas of i 1 ■ 
 
 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 ". 
 
 s Such -were the estates in Westwell and Little Chart, mentioned above 
 in the case of De Bendings v. Prior of Christchurch. Almost all the lands 
 held in socage of the monasteries were gavelkind. See the account given 
 by Hasted of the reputed manor of Chartons, in Earningham, and the 
 inquisition there cited, taken on the death of W. Isley in 4 Edw. IV. 
 (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 KolT 
 for the year 4 Hen. VII. shews that " Thomas Pulter held of the Prior 
 of Christchurch in socage a house called Erechinghurst, and a mill in 
 Sandhurst, and the manor of Down of the same prior, but the jurors 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 Alk- 
 ham, was very anciently alienated to a socage tenant, 
 having originally been held by the monks, of Christchurch 
 in francalmoigne, " 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 t# ." "' l 
 
 viii. 138. 
 
 knight-service in capite 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. 
 369 (Geddings), iv. 377 (Gallants), ii. 119 (Hockenden), and notices in 
 his history, passim. 
 
 1 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. 
 
CHAPTEE XVI. 
 
 Disgavelled Lands. 
 
 Difficulty of identifying disgavelled lands in the last century. — Opinions 
 of Kobinson. — Inaccuracy of Hasted. — The Real Property Commission. 
 — Answers to their questions, with cases. — Opinions of Kentish law- 
 yers. — Ttvo distinct periods of disgavelling. — Disgavelling by prero- 
 gative. — By license. — Privilege of the Archbishops of Canterbury. — 
 Entries in the Book of Aid. — Aucher's Case. — Be Becland's Case. — 
 Lands disgavelled which were held immediately of the king. — Gate- 
 wt/Fs Case. — Northwood' 's lands. — Cobham's lands. — Second period. — 
 Disgavelling by Act of Parliament. — Ouildford's lands. — Wyatt's 
 lands. — Dissolution of monasteries. — Confusion of tenures. — Its cause. 
 — Castleguard lands. — "The Bill for gavelkind." — Will of John 
 Boper. — A great part of Kent disgavelled.— History of the Act of 
 1548. — Construction of the Acts. — Wiseman v. Cotton. — The collateral 
 customs of gavelkind. — Doe d. Bacon v. Brydges. — -Later disgavelling 
 acts. — Lands affected by both the great disgavelling acts. — Lands of 
 Sir J. Baker, Sir T. Cheyney, Sir J. Hales, Sir T. Kempe, Sir A. St. 
 Leger, and others. — Lands affected only by 31 Hen. VIII. c. 3, of 
 Lord Borough, Sir E. Boughton, Lord Cromwell, Sir C. Hales, and 
 others. — Lands affected by the Act of 2 and 3 Edw. VI. alone, of Sir 
 G. Blage, Sir Martin Bowes, Th. Darrell. — 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 Eolls 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, xvi.] Disgavelled 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 disga veiling 
 statutes were seised of at the time a *." * Bk - >■ 
 
 c. \n.fin 
 
 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 careM 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 
 
 * Wiseman v. Cotton, 1 Sid. 138. 
 
360 The Tenures of Kent. [chap. 
 
 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 15 ." 
 
 Another example will illustrate the uselessness of Has- 
 ted' s account of the disga veiling Acts. 
 
 " Christopher Hales," he wrote, " was possessed of Barton Mill 
 in Canterbury with a meadow belonging to it, holding it in capite, 
 and by knight-service. (Rot. Esch.) His lands were disgavelled 
 by the Act of 31 Hen. VIII. He died in the 33rd year of that 
 
 * Hast. xi. reiarn *." 
 147. 6 
 
 Now 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. VIII., one year after the first general dis- 
 gavelling Act, 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 Cotton 
 garden, and Hopland meadow (seven acres) in Chartham, (de- 
 scribing the boundaries minutely)," &c. 
 
 He died before the next disgavelling Act was passed, 
 
 b These lands were in the ownership of Sir Thomas Moyle in 2 and 3 
 Edw. YL, when all his gavelkind lands were disgavelled, as is shewn 
 inter alia hy the following extracts : — 
 
 " 1. Grant to Sir T. Moyle and his heirs of lands in Chatham called 
 "Waslade to hold of the Crown hy 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. 
 
xvi/] Disgavelled Lands. 36 1 
 
 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 * ?" *i Report, 
 
 Appendix. 
 
 To the first question some of these gentlemen answered 
 in the negative c , but the majority called the attention of 
 
 c Ans. 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, Esq., 
 1 Rep. App. 205.) 
 
 Ans. 7. " I conceive that cases may occur in which it may be difficult 
 to identify 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 Jones, Esq., 1 Rep. App. 213.) 
 
362 The Tenures of Kent. [chap. 
 
 the Commissioners to very serious results arising from the 
 uncertainty which prevails. 
 
 And it is certain that this inconvenience must increase 
 as the contents of the public records become more 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- 
 sioners, declared that he would not accept a title to real 
 property in Kent without proof either of its having been 
 disgavelled, or a gavelkind title made out (up to the date 
 * 1 Ee P . of the first of these acts *). 
 
 App. 153 
 
 and 113.' Further, Mr. Bell, an eminent authority on the law 
 relating to Kent, thought it very probable that these 
 uncertainties would arise : — 
 
 " You find it," he wrote, " generally laid down that all lands in 
 Kent are gavelkind, and that therefore no great inconvenience 
 arises ; it must be very clearly proved they are not gavelkind, 
 and it is said 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 so thrown open by the Parliamentary Commis- 
 sioners, I have no doubt many more such will be found. I ascer- 
 tained by inspecting the records that they (the estates above- 
 f Ibid. mentioned) had been disgavelled -f." 
 
 328 
 
 Mr. Sidebottom, another eminent counsel, produced ad- 
 ditional evidence of the uncertainty and inconvenience 
 mentioned in the questions above cited, and furnished 
 
 Ans. 7. "I have never found any inconvenience ; primd facie all lands 
 in Kent are considered gavelkind ; and it rests with the party disposing of 
 the estate to shew that they have been disgavelled." — (F. Turner, Esq., 
 1 Rep. App. 286, and see evidence of G. Morley, Esq., ibidem, p. 350.) 
 
xvi.] 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 counsel 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 
 that merely arising from the difficulty of distinguishing what was 
 gavelkind, and what was not gavelkind." 
 
 It is no doubt difficult 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 
 
364 The Tenures of Kent. [chap. 
 
 later or one day earlier than the disgavelling of the lands 
 of the purchaser, but such 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 4heir title-deeds, extracts from the Patent 
 Eolls and inquisitions post mortem to prove the tenure. 
 No 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 d . 
 
 d Mr. Walters stated in his answer to the Commissioners' Circular that 
 no uncertainty as to tenure prevailed in Kent, and that no means existed 
 of ascertaining the disgavelled lands. Subsequently, however, a note was 
 received from him, in which the following passage occurs : — 
 
 "Having stated that I had never known an instance in practice, in 
 which any doubt existed as to particular lands in Kent being gavelkind 
 or not, I think it right to mention, that since I attended the Commis- 
 sioners I have learnt that very recently the following case occurred. 
 A regular title was shewn to lands, and it appeared that (though not 
 stated to have been disgavelled,) they were formerly the estate of an 
 imdividual 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 were 
 disgavelled, and by means of a county history, and an inquisitio post 
 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. The 
 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 infant 
 trustees within the statute of Anne, and they conveyed accordingly, each 
 conveying only his share. The discovery recently made induced counsel 
 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.] Disgavelled 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 *." * Fin. 
 
 But a more extensive privilege was given to the Arch- Lamb'.' 
 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 further cited the case of Wiseman v. Cotton from Siderfin, to shew- 
 that an uncertainty prevailed in the reign of Charles II., 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 long series of wills and family 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. 
 
366 The Tenures of Kent. [chap. 
 
 roll remaining in the hands of the deceased reverend 
 * Pin. father, Matthew Parker, Archbishop of Canterbury *." 
 Lamb". This charter contained clauses to the effect following : — 
 
 Per. 531 ; 
 
 68, 60. ' " That the archbishops may convert into knight's-fee any lands 
 
 of the fee of their church held previously in gavelkind .... The 
 tenants of such lands shall owe the same duties and enjoy the 
 same privileges as other knights of the archbishop, so never- 
 theless that the accustomed quit-rents shall continue to be paid, 
 and the customary labours, works, and provisions e due from the 
 land shall be commuted for money rents. And the king for 
 himself, his heirs, and successors, ratified prospectively all such 
 conversions of tenure by the archbishops." 
 
 The entries in the Book of Aid, 20 Edw. III., of lands 
 disgavelled "per novam licentiam archiepiscopi," among 
 other ancient evidences, prove that the privilege was exer- 
 cised. The inquisitions post mortem of tenants of the arch- 
 bishops, a list of which is in the Eed Book of the Exche- 
 quer, will shew what lands were thus held at the same 
 time by knight-service and an ancient quit-rent. 
 
 In the passage of the Bed 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 Bolvenden, which had 
 been disgavelled by the archbishop, and which was held 
 by knight-service and a rent of 10s. 2d. per annum. This 
 appears by the proceedings in Aucher's Case f . 
 
 e "Xenia et averagia et alia opera quae fiebant de terris iisdem con- 
 vertentur in redditum denariomm Eequivalentem." Xenia are purvey- 
 ances of provisions due to the lord, as rent-hens, rent-eggs, &e. ; averagia 
 were labours due in the lord's land by custom (puvrages). 
 
 f Plac. etAssis., 3 Edward II., Kane. "W. de Cassingham quondam 
 tenuit 120 acras terras in Eolvenden in gavilikende . . . et S. Edmundus 
 quondam Archiepiscopus Cantuar. concessit quod eas haberet et teneret 
 sibi et hcredibus suis &v. libere et quiete per servitia vicesimas partis 
 
xvi.] Bisgavelled 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 Bernefield, 
 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 
 knight's-fee," &c. * * Somn - 
 
 In De la Beclaundh Case it appears that Archbishpp 
 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 defendant * f" 303^' """ 
 
 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 10s. 2d. per annum."— (Bobinson, Gav. ii. 
 c. 8.) 
 
 Hasted traces the descent of this estate by means of various wills and 
 inquisitions post mortem down to recent times, (vol. vii. 191.) 
 
 « Bin. Kane. 55 Hen. III., rot. 61 dors., extracted by Eobinson, 
 bk. i. c. v. 
 
VII. 4. 
 
 368 The Tenures of Kent. [chap. 
 
 bishop Boniface, in 29 Hen. III., disgavelled one "yoke" 
 of land held of him by Henry de Bourne in this manor 
 
 * Hast, and parish *. 
 
 Phi%2i. The estate known as Maxton or Mayston Court, in the, 
 parish of Sturry, was also enrolled in the Book of Aid as 
 one knight's-fee, which had been disgavelled, "per novam 
 licentiam archiepiscopi." 
 
 It does not appear that the privilege was retained very 
 long by the archbishops, as we find no instance of its use 
 after the reign of Henry III., and mention was made in 
 
 + Palm. Kfoly Lee's and De BeggbrooFs Cases -\ of estates held by 
 
 26 Hen. military service of the archbishops, which yet were partible 
 in gavelkind; from this it appears probable that the arch- 
 bishops' privilege was given up as contrary to the policy of 
 the law in Kent, at some time before the same right was 
 denied to be part even of the king's prerogative. 
 
 Returning to the subject of disgavelling by prerogative, 
 we find that two distinct claims were set up on behalf of 
 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 his 
 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 
 
 h 1. "Dominus Eex per cartam suam potest facere liberum feodum 
 de tenementis de tenura de gavelkind, tam de illis quae tenentur de Eege 
 mediate, quam de illis quae tenentur de ipso immediate." 
 
 2. " Nullus potest de gavelkind facere liberum feodum, nisi tantum 
 Dominus Eex et Archiepiscopus Cantuar. : et hoc solummodo de tene- 
 mentis quse de ipsis Eege et Arohiepiscopo tenentur in capite immediate." 
 — (De Gatewyk'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 Eolls of 4 Edw. I., No. IV, 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- 
 wyVs 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 increasing, 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 k ." 
 
 This deed affected the tenure of Beluncle in Hoo St. 
 
 See a grant of gavelkind lands in several parishes to Henry Cobham 
 in the 10th year of King John; Rot. Cart., 178 b, and Collect. Topograph., 
 vol. vi. ; Inq.post mortem John Cobham, 28 Edw. I. 42; and Rot. Fin., 
 28 Edw. I. 9. 
 
 k Rot. Cart., 4 Edw. I., No. 17:— "Quod terra de Gavelkind sit de 
 natura Serjantia}." After some prefatory clauses it proceeds thus: — 
 " ftuare volumus et firmiter pracipimus pro nobis et heredibus nostris, 
 
 b b 
 
* vol. vi. 
 
 370 The Tenures of Kent. [chap. 
 
 Warburgh, and several marshlands in the parish of All- 
 hallows, besides the principal seat of the family in the 
 parish of Cobham, as appears by various ancient deeds pre- 
 served in the Collectanea Topographica*, among which 
 may be particularly noticed a family settlement of lands 
 in several parishes on the said John de Cobham and his 
 heirs, made in 19 Eic. I., and the inquisition post mortem 
 already cited. 
 
 The last case of disgavelling by prerogative lands not 
 held immediately of the Crown, is that which caused the 
 lawsuit of Gatewyk v. Gatewyk, in 9 Edw. II. 
 
 This is an interesting and important case, the whole 
 proceedings in which are printed in the original Latin 
 by Eobinson, as well as in the "Abridgment of Pleas of 
 the Crown," published by the Eecord Commissioners. It 
 will not therefore be necessary to mention more than the 
 leading points. 
 
 The property in dispute is now called Scotgrove, in Ash 
 by Wrotham. 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 2-7s. His son and heir having alienated the pre- 
 mises to one Eichard de Gatewyk, lately dead, his younger 
 sons claimed their shares as co-heirs in gavelkind. 
 
 quod omnes terrae et tenementa, quae prsedictus J. C. in gavilikendam in 
 feodo tenet et habet in com. praed. ad primogenitum suum vel alium here- 
 dem suum propinquiorem post ipsum, sicut et ilia quae per serjantiam 
 tenet vel per servitium militare, integre absque partitione inter eos faci- 
 enda descendant, et eidem et ejus beredibus sub eadem lege, salvis in 
 omnibus capitalibus dominis suis servitiis et consuetudinibus aliisque 
 rebus omnibus."— Given, May 4th, 4 Edw. I. 
 
xvi. J Disgavelled Lands. 371 
 
 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 Richard 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 from 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 '." 
 
 1 " Nuper oliit, by Eieh. and "Will., sons of Eichard Gatewyk, for their 
 reasonable parts of the inheritance of their father in Ash, against the 
 daughters of their elder brother." — {Itin. Kane, 6 Edw. II. 80, and 
 9 Edw. II., C. B. 240 ; Rolins. Gav. i. c. 5, ii. c. 3.) 
 
 Bb2 
 
372 The Tenures of Kent. [chap. 
 
 It was admitted in this case by the court that the 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 Eoger Ley- 
 bourne and Sir Eoger Norwood, lying within the precincts 
 of the king's ancient demesne, were disgavelled in the 
 reign of Henry III. 
 
 The first charter runs thus : — u Let Eoger de Leybourne 
 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 m ." 
 
 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 Court, in Eainham, which having for- 
 merly been held in gavelkind was held by Juliana de Ley- 
 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. II. ° 
 
 m Rot. Cart., 51 Hen. III. 84. 
 
 n "Et tenet 300 a. marisoi in Upchurch de Eege in capite una cum 
 manerio de Mere per servitium essendi lardaria principalis ad corona- 
 tionem domini Eegis," &c. — (Inq. post mortem Juliana, widow of William 
 de Leybourne, 3 Edw. II. 56.) 
 
 Hast. vi. 27. She was the daughter of Thomas de Leybourne, son 
 of William and Juliana above mentioned. Her father having died before 
 
xvi.] Disgavelled Lands. 373 
 
 The other charter above mentioned contained a grant 
 a 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*." * Ayioffe, 
 
 / J ° Kalend. 
 
 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 p t. +Hast. vi. 
 
 . ' 177,251. 
 
 " His son, Sir John de Norwood, also changed the tenure 
 
 of his lands from gavelkind to knight- service ±." He died t Ib - v - 
 
 ? . 448, 586. 
 
 in 13 Edw. II. seised of the manors of Harrietsham, Bred- 
 hurst, 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 q ." 
 
 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 Arclwol. y. 193.) . 
 
 p Inq. post mortem Eoger de Norwood, 13 Edw. I, 25. 
 
 q Berwick Eoll, 21 Edw. I. ; Itin. Kane. 53, and Hil. 26 Edw. I. 
 21, B.B. ; Brook. Abridg. Extinguishment, 14. 
 
 1 Wiseman v. Cotton, 1 Sid. 138, and Year-book 14 Hen. IV. 2, 9. 
 
374 The Tenures of Kent. [chap. 
 
 " And the more modern resolutions do not acknowledge any 
 
 prerogative subsisting in the Crown to change the law and manner 
 
 of gavelkind descents by altering the tenure, even as to such lands 
 
 * Robins, as are holden immediately of the king B *." 
 i. u. 5. 
 
 In short, it appears that soon after the House of Com- 
 mons became part of the legislature, it became settled that 
 nothing short of an Act of Parliament could change a 
 t Hale, c. tenure inherent in the land itself t. 
 
 T SI 2 
 
 The first case of disgavelling by Act of Parliament 
 was in 11 Henry VII., when, upon a petition made by Sir 
 Eichard Guildford, his customary lands were disgavelled. 
 The Act provided, — 
 
 "That all lordships, lands, tenements, advowsons, possessions, 
 and hereditaments, which Sir Richard Guildford held to his 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 departed ne departable among heirs male, but should 
 be of the nature 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 Hot. not been of the nature ne the tenure of gavelkind %." 
 
 Pari. vi. 
 
 487. 
 
 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, 
 
 " Be Begglrool's Case, 26 Hen. VIII. 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."— {East. 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. J Disgavelled Lands. 375 
 
 and Brocket in Ebeney *, none of which names occur in * Hast. 
 
 J ' vii. 177, 
 
 the Book of Aid. 194, 211, 
 
 Frensham, once called Fraxingham, which was also 
 among the lands of Sir E. Guildford, was always a free 
 manor, held at common law by tenure of castleguard, 
 paying a rent to the manor of Swanscombe for the defence 
 of Kochester 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 E. Guildford. 
 
 In 15 Hen. VIII., on the petition of Sir Henry Wyatt 
 of Allington, 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, 
 in 1542, besides the licenses of alienation, if any, ob- 
 ' tained by him or for others in his favour-]-. t Hast, m. 
 
 - J . . 464, iv. 
 
 But no very sweeping Act of this kind was required 293, 450. 
 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, &o. : 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 {Interim, Co. litt. 5 a.), 100 acres of marshland, and 
 rents of assize worth yearly £4 6s. 4d., lying in the parishes of Eolvenden, 
 Biddenden, and Tenterden, held of the Queen in chief by knight- serv 1C e 
 by Sir Henry Sidney and Mary his wife, by gift of the Duke of Northum- 
 berland."— {Pat. Bolls, 1 Mary.) 
 
376 The Tenures of Kent. [chap. 
 
 the smaller houses in Kent were procured, viz. the abbey 
 of Langdon, the priories of Folkstone and Bilsington, and 
 the Maison-Dieu at Dover. Most of the lands belonging 
 to them were retained at first by the Crown, 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 disgavelling Act of 31 Hen. VIIL, 
 which affected all his customary lands and estates u : they 
 * Hast, were re-granted to their former possessor in 4 Edw. VI. * 
 
 In the following spring an Act was passed for the dis- 
 solution of the lesser religious houses, 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- 
 gavelling 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 fallen into mortmain. Thus a new tenure of knight- 
 service was imposed on an estate containing both cus- 
 
 u License of alienation ; Edward Piennes, Lord Clinton, to Lord Crom- 
 well ; Eot. Pat. 30, Hen. VIIL 7. 
 
xvi.] Disgavelled Lands. 377 
 
 tomary 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 #DavU.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 T ." This neglect 
 was the natural consequence of the destruction of the 
 
 v Froude, 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 Eoses, and we find 
 numerous traces of its increase in Kent, where it was more 
 important to preserve the ancient landmarks than in any- 
 other part of England. The Escheat Eolls of the reign 
 of Henry YII. 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 be illustrated by the language of the Act 
 concerning Dover Castle 32 Hen. VIII., c. 48. This Act 
 recites the facts, that the castle belonged to the Crown, 
 and towards its repair various manors and lands were liable 
 to payments called castleguard rents; that these manors 
 and lands were parcels of the baronies of the Constabulary, 
 Crevecoeur, Fobert, Peverel, Haghnet, and others; that 
 the said castleguard rents had become much decayed and 
 diminished for several 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 King's 
 hands, and fresh regulations were made as to the cus- 
 tomary fines and other matters refating 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 
 
xvi.] Disgavelled Lands. 379 
 
 lands in Kent called gavelkind;" was passed on May 23rd, 
 1539 (31 Hen. VIII. 0. 3). Although 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 custorr? 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 were held by service of 
 socage, but then were 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 nature 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 x . 
 
 1 The monastery lands changed owners very frequently in the years 
 immediately following the general dissolution, which makes it difficult 
 
380 The Tenures of Kent. [chap. 
 
 The Act of 31 Henry YIH. contained no schedule of the 
 lands affected by it, and it is therefore necessary to ex- 
 amine in each case, where land is supposed to have been 
 disgavelled by it, the inquisitions post mortem of the owners 
 before and after the date of the Act, the Patent Eolls for 
 the date of any grants to them of lands taken from 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 13th year of 
 Elizabeth's reign. It is of course difficult in many cases 
 to identify small parcels of land supposed to have been in 
 the ownership of one of the persons named in 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 
 "the lands have returned into the custom of gavelkind," 
 although still the property of the heir at common law, 
 when on an intestacy the necessary evidence of identity 
 
 * Real, can be produced *. 
 
 Comm. Before making mention particularly of the disgavelled 
 
 3 Kep. 2. 
 
 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." — [Sad. 
 Hi. 204.) 
 
 The surrenders are preserved among the records of the Court of Aug- 
 mentations, and copies in some cases are to be found in the British Mu- 
 seum, e. g. the early surrenders in 27 Hen. VIII. of the Maison Dieu at 
 Dover, the abbey of Langdon, and the priory of Eolkstone. 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. 
 
xvi.] Disgavelled Lands. 38 1 
 
 estates, we may notice briefly the will of John Roper, 
 Attorney-General to Henry YIIL, in which many of the 
 lands of "William Roper, mentioned in the Act of 31 
 Hen. YIIL, 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 y . 
 
 y The estates of which by these means William Eoper became seised, 
 either in possession or remainder, are described in the will as including 
 the manors and lands of Easthorne, 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 ; 
 
382 The Tenures of Kent. [chap. 
 
 By the operation of the Act of 31 Hen. VIII., to use 
 * Co. litt. the words of Coke *, — 
 
 140 b. 
 
 "A great part of Kent was made descendible to the eldest son, 
 according to the course of the common law, for that by the means 
 of that custom divers ancient and great families after a time came 
 to very little or nothing." 
 
 This was the reason assigned in earlier times for the 
 exercise of the king's prerogative of disgavelling, as we 
 have seen in the case of Gatewyk v. Gatewyk, and the 
 charter given to John de Cobham, 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 
 tenures, which may indeed have created a fear lest the 
 new families should decay and fall to pieces by means of 
 partitions among heirs male; we may doubt, however, 
 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 Chestfield in Swalecliffe, another at St. Dunstan's near 
 Canterbury, the Lodge farm in Linsted, and lands in Doddington, Kings- 
 down, Norton, Cosmus Ble'ane, Heme, Reculver, Littleoote'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- 
 sition, taken on his death in 1524, should be consulted. 
 
xvi.] Disgavelled Lands. 383 
 
 rapidly than the tendency to its disintegration by a law 
 of gavelkind z ." 
 
 But we must now consider the disgavelling Act of 2 and 
 3 Edw. YI. which conies 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 effect : " to-day were brought up from 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 Eutland and Shrewsbury, the Bishops of Ely, 
 Carlisle, Hereford, Chichester, and Llandaff, and the 
 Lords Pointz, Sturton, and Sheffield \" 
 
 z Hallam, Middle Ages, ii. 85. A passage from the evidence of Mr. 
 Sidebottom before the Real Property Commissioners 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 Gavell-kind." 
 
384 The Tenures of Kent. [chap. 
 
 In the " Calendar of Acts passed in the second session 
 begun Nov. 24, 2 Edw. VI., and continued until the 14th 
 of March, 3 Edw. VI.," we find the fortieth Act in the 
 list entitled, "An Act for the alteration of certain gavell- 
 kynde lands." 
 
 It appears from the Journals of the House of Commons, 
 that it was read for the third time and passed b in that 
 session, on the 26th of February. 
 
 The form of the Act was as follows : — 
 
 "The King our sovereign lord for divers considerations him 
 moving . . . ordaineth, that as well all the lordships, manors, 
 lands, tenements, woods, pastures, rents-services, reversions, re- 
 mainders, advowsons, and hereditaments, set, lying, and being in 
 the county of Kent, of which Sir Thomas Cheyney and (43 others), 
 or any of them, is seised to his or their use in fee-simple or fee- 
 tail, the which or any of which be of the nature and tenure of 
 gavelkind, and heretofore departed or departible between the heirs 
 male made by the custom of gavelkind, shall from henceforth be 
 clearly changed from the said custom tenure and nature of gavel- 
 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 Cheyney and the others mentioned 
 in it.) 
 
 Notwithstanding the broad expressions of these acts, 
 directing that the lands shall be deemed and taken in all 
 respects to be as if they never had been of the nature of 
 gavelkind, they have not been held to alter any custom 
 
 b This appears by the mark J in the margin of the Journal, as 
 was proved in the case of Doe d. Bacon v. Brydges {infra) 6 Mann, 
 and Gr. 282. 
 
xvi.] Lisgavelled 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 Parningham, 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 II. to Sir Anthony Eoper of Farningham, 
 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 d . The 
 case was twice argued, and finally a special verdict was 
 brought in "by a jury taken from the county of Kent 6 ," 
 
 1 Sid. 135; Eaym. 59, 76; Hard. 325. See also Cotton v. Wiseman, 
 1 Sid. 77. 
 
 d This case was decided in Hilary Term, 13 and 14 Car. II. (B. E. rot. 
 476), after the abolition of feudal tenures ; but the will of Sir Anthony 
 Eoper was dated before the abolition. 
 
 e "Where the issue touches the commonalty of the county of Kent, 
 
 C C 
 
386 The Tenures of Kent. [chap. 
 
 to the effect following : that the lands in question were 
 anciently of the nature of gavelkind, and that in the year 
 2 and 3 Edw. VI. they were in the ownership of Sir Henry 
 Isley, at which time a private Act of Parliament was 
 passed (reciting its provisions), which amongst other lands 
 disgavelled all the then lands and tenements of Sir Henry 
 Isley, to all intents, constructions, and purposes whatso- 
 ever, so that they should descend as lands at the common 
 law, any custom in the county to the contrary notwith- 
 standing. 
 
 But it was resolved by the whole court, " upon solemn 
 argument," that the custom of free devise remained not- 
 withstanding the general language of the Act in question, 
 on the ground chiefly, that these general words concluded 
 with a very special reference to the descent alone, and that 
 subsequent words may and often do abridge the generality 
 of a preceding clause f . 
 
 Importance was attached by the judges to the phrase 
 in Co. litt. 140 b., above cited, assigning the fear of 
 partible descents as the sole reason for passing these 
 disgavelling acts, (as it certainly was the reason for se- 
 veral of the more ancient instances of disgavelling by 
 prerogative). 
 
 It was remarked that the Act of 31 Hen. VIIL, by 
 which the " Custom of Welsh gavelkind" was destroyed, 
 permitted the custom of devise to remain unaltered. An 
 objection was made to this argument, on the ground that 
 
 the jury was always taken de corpore comitatus. See Eobinson, Gav., on 
 trials per totum eomitatum Kancia, bk. ii. c. 7, and BecUyl v. Growther, 
 there cited. 
 
 f U ! 
 
 Subsequent words may abridge and qualify, but not destroy, a pre- 
 ceding general expression. "-(Altham's Case, Dyer, 56, 8, Co. 154 b; 
 to. litt. 299 a; Stradling v. Morgan, Plowd. 205.) 
 
xvi.] Disgavelled Lands. 387 
 
 "Welsh gavelkind" and "Irish gavelkind" were in all 
 respects utterly different from the true gavelkind of 
 Kent. Case of Tanistry *. * Davis - 
 
 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 s . 
 
 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 Lev. 505. 
 manner of the time : — " Gavelkind est la mere et ceux 
 customes avant-dictes sa daughters, vel gavelkind est la 
 
 s See the cases and arguments on this point more fully set forth at the 
 beginning of this hook. We may again remark here, that in the Statute 
 changing the customary descent of lands in the Soke of Oswaldeheck 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 he pretended by a custom there to be partible among 
 and between heirs male, shall from henceforth be clearly changed from 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. 
 
 CC 2 
 
3 88 The Tenures of Kent. [chap. 
 
 fountain ou headspring, et les auters customes sont rivu- 
 lets ou streams issuing de ceo h .") 
 
 A further argument was drawn from the fact that these 
 disgavelling acts were passed on the petition of the per- 
 sons affected by them, and from the improbability that 
 any Kentishman would petition for the destruction of the 
 ancient privileges of his 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 arisen, and were likely to arise, from the 
 absence of schedules from the disgavelling acts, vhich 
 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 v. Brydges, 
 6 Mann, and Gr. 282. This was an ejectment, where the 
 
 h On this point Kobinson remarked: — "The same opinion 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."— {Bh. i. c. 5.) 
 
 1 " 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 de- 
 prendre del maner del discent est solement rcgarde, et ceo appiert per les 
 primers statutes de disgavelling, comme "Wiat's statute 15 Hen. VIII., et 
 auter statutes 20 Hen. VIII. et 7 Edw. VI."— (1 Sid. 137.) It is un- 
 certain to what the statement in the last Hue refers. 
 
 Kirbxj Lees Case, Palm. 163, affords an example of the loose way in 
 which references were made to the Acts under consideration, "Soil, que 
 fueront particular Acts de Parliament que toll gavelkind en ceitain fami- 
 lies en Kent." 
 
xvi. J Disgavelled Lands. 389 
 
 plaintiff'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 Inrollment 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 manor 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. YI. 
 had been admitted in the last century, in the case of Len- 
 nard v. Sussex*, in which the Earl of Sussex "gave very 
 
 k Suprh, and Lord, Raym. 1292, where it is very slightly reported. 
 
390 The Tenures of Kent. [chap. 
 
 full evidence" that some of the lands in question had 
 been disgavelled by the Act of 2 and 3 Edw. VI., while 
 in the ownership of William Roper, Sir Henry Isley, and 
 Reginald Peckham ; while others, which were ancient 
 knight-service lands held of the Crown, 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 from the 
 Crown before the Act, of the Act itself, and of inqui- 
 sitions post mortem taken after its date. 
 
 The remaining disgavelling acts are comparatively un- 
 important, partly because so much of Kent was disga- 
 * Co. ntt. 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 tenures 
 removed the last restraints on this liberty, by converting 
 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 Jac. I. 1 ) It was entitled, "An Act for 
 
 1 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 hy it. Its short title is, " Sir John 
 
xvi.] Disgavelled Lands. 39 1 
 
 the altering of the tenure and custom of the lands late 
 of Thomas Potter, Esq., and the lands of Sir George 
 Eivers, Knt., and of Sir John Eivers, 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 Eivers, and the heirs of the said Sir 
 John Eivers, and Dame Dorothy Eivers, 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 
 
 Ken<-, 
 
 i.e. disgavelled since 21 Jac. I. p. 466. 
 
 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 
 hoth 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. m 
 
 Eivers' Bill," as in the journals of the House of Commons for 1624 : 
 "27th May. Sir J. Eivers' 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 [ CHAP - 
 
 I. Persons whose names appear both in the Act 31 Hen. 
 VIII. c. 3, and in that of 2 and 3 Edw. VI. 
 
 1. John Baker. 
 
 He was knighted before the Act of 2 and 3 Edw. VI., 
 and died in 1558. By the inquisition on his death we 
 learn that his eldest son succeeded to his disgavelled 
 lands, 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.Entr. treason*. 
 
 78 
 
 Hasted describes some of his disgavelled lands, e.g. 
 those in Kingsnoth and Pluckley, formerly belonging to 
 + Hast.vH. Battle Abbey f. 
 
 In 32 Hen. VIII. he purchased Comden in Frittenden, 
 of which he died seised, and in the same year had a grant 
 of much land in Cranbrook and the neighbourhood, called 
 JJelingden, Brompton, Highfields, Farmlands and Mut- 
 beame meadow, and another estate in Headcorn and Staple- 
 hurst, with Buckhurst and Wallinghurst in Frittenden, 
 described in the letters patent more particularly. The 
 records called Originalia for the 32nd, 33rd, 34th, and 
 36th years of Henry VIII., 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. (collected 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 
 Leimard v. Sussex, with matters relating to all 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 the MSS. 
 which were purchased of his executors is marked in the British Museum 
 Catalogue, "Add. MS.S. 5,536-7." 
 
xvi.J Bisgavelled 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 whole 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 disga veiled 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 Polls 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 {le dennis in Le Wild), with Poynings Marsh in 
 Tenham, and other lands most minutely described by 
 - Lewis, Hist. Taversh. 22; Eot. Pat. ejus mini, pt. vi. 
 
394 The Tenures of Kent. [chap. 
 
 boundaries, having belonged to Thomas, Lord Cromwell 
 * Oriff. pt. (Essex), when all his lands were disgavelled *. In his 
 
 2, 32 Hen. . 
 
 viii. 121. 35th year the King granted to him the site and lands 
 
 of Davington Priory, with two-thirds of the manor of 
 
 t Orig.pt. Monkton, and lands in many parishes t. Among his other 
 
 1, 38 Hen. 
 
 viii. 68. disgavelled lands were the site and possessions of St. Lex- 
 I Ori g . 29 burgh's Nunnery in Sheppey \, lands belonging to the 
 95. manor of Patrixborne, and others belonging to small sup- 
 
 pressed chantries °. 
 
 It appears from the inquisition on the death of John 
 Boyes, in 35 Hen. VIII., that Sir T. Cheyney had aliened 
 to him " Silstod Hall, with 200 acres of land, Horsemead 
 borough in Denton, with lands in Wootton, Okeridge," 
 &c, to hold of him by knight-service, as parcel of the 
 barony of Chilham. 
 
 3. Sir Eoger Cholmley. 
 
 In 36 Hen. YIII. 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 p . 
 
 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 
 
 § orig. 35th year §. 
 
 ejus ami, r T -n- ■. 
 
 pt. 3, 92. o. 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. VIII. 235, and pt. iii. 38 Hen. VIII. 68; Eot. 
 Pat. 32 Hen. VIII., pt. v. 
 
 p Orig. pt. iii. 36 Hen. VIII. 114. For his estates in Woolwich see 
 the reference in Hasted, vol. i. p. 450. 
 
xvl.J Lisgavetted 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 q . 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 disgavelling act. 
 
 6. Thomas Harlakenden. 
 
 7. (Sir) Thomas Kempe of Ollantigh. 
 
 Some account of his family is given by Hasted *. For * vol. vii. 
 
 . i . nil n i - ... 34<8, 561. 
 
 his disgavelled lands the inquisition taken on his death, in 
 1607, should be consulted. It may be noticed that in 
 6 Edw. VI. he aliened to John Tuck, Esq., 40 acres of 
 arable and wood in Hothfield 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 effect : — 
 
 "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." 
 
 Beference is there made to the inquisitions post mortem 
 of the Bishop of London, 4 Hen. VII., and Sir W. Kempe, 
 which may be thus summarised : — 
 
 " T. Kempe, Bishop of London, died in 4 Hen. VII., 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-service, the advowson of Staplehurst, 
 and 23 a. of land in Godmersham held of the Prior of Christ- 
 
 i Dugd. Monast. iv. 414; Hast. xi. 183; Orig. 38 Hen. VIII. pt. 
 i. p. 70. 
 
viii. 428. 
 
 396 The Tenures of Kent. [chap. 
 
 church by services unknown to the jury. Thomas Kempe was 
 his heir." 
 
 "William Kempe held Hamhurst, 60 a. in Staplehurst, the 
 advowson of that parish, the manor of Wilmington with its lands 
 in Benenden and elsewhere, and eleven other parcels of land in 
 Staplehurst held of the manor of Marden, by military service." 
 
 Sir T. Kempe of Ollantigh purchased in 14 Eliz. the 
 manor of Otterpoole, and other (disgavelled) estates of Sir 
 J. Hales, by royal license. 
 • Hastvii. 8. Sir Thomas Moyle, of Eastwell *. 
 
 403, et . J ' 
 
 pass. 9. William Eoper. 
 
 Many of his estates have been described, supra, in the 
 will of John Eoper of Canterbury, and the private Act 
 passed to establish it in 1530. 
 
 t Hast. 10. Sir Anthony St. Leger-f. 
 
 A comparison of the inquisition taken on his death in 
 1559, with the grants (of lands taken from suppressed 
 monasteries) made to him before 1548, shews that Sir A. 
 St. Leger owned a considerable amount of disgavelled land 
 among his other estates in Kent. Henry VIII., in his 
 36th 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 
 
 r Hast. vii. 549 ; Oriff. ejus mini, pt. iii. 80. 
 
XVI -J Disgavelled Lands. 
 
 397 
 
 certain lands called "Bekards," formerly belonging to the 
 Archbishop of Canterbury, and afterwards to Richard Cecil. 
 Other grants were made to him in the 30th and 32nd 
 years of Henry YIIL, 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 Marden. 
 
 12. Sir Edward Wootton. 
 
 At his death in 6 Edw. YI. 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* Hast. v. 
 him in the 2nd year of Edw. YI. f + oria. 
 
 Nearly sixty names remain in the list of persons affected ^™.?™g 
 by the disgavellihg 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 Polls, and others easily accessible. The object of 
 
398 The Tenures of Kent. [chap. 
 
 the few notes and remarks on the names in the lists pre- 
 ceding and following is to indicate in some slight degree 
 the amount of information, valuable to the owners of land 
 in Kent, which is there contained. 
 
 "We may now proceed to mention the names remaining 
 in the lists of 31 Hen. VIII. and 2 and 3 Edw. VI., with 
 a few references to the most obvious sources of informa- 
 tion respecting the lands affected. 
 
 II. Persons whose lands were disgavelled by the Act 
 31 Hen. VIII. c. 3, alone. 
 
 1. Thomas, Lord Borough. 
 
 He was of Aston-Lodge, or Orkesden, in Eynsford and 
 
 Lullingstone ; he succeeded to the family estates in 20 
 
 Hen. VIII., and in the year following was summoned to 
 
 Parliament as Lord Borough, or Burgh, as the name is 
 
 * Hast. ii. variously spelt* under "the manor of Brookland." Be- 
 
 432, and . 
 
 viii. 385. sides the estates above mentioned, and those in Lenham, 
 Thurnham, and Otterden, we find that he held lands in 
 the hundred of Somerden which were held by 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 
 + Oriff. his inquisition post mortem taken in 4 Edw. VI. j" 
 viii. 49. In 33 Hen. VIII. he aliened to Sir Martin Bowes an 
 
xvi.] Disgavelled Lands. 
 
 399 
 
 estate in Plumsted 8 . He was owner of much, land in 
 Woolwich, including the manor of Southall, described in 
 the Book of Aid and the Eeodary 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. 
 VIII. He purchased from Sir Martin Bowes, in 33 
 Hen. VIIL, a mansion, wharf, and parcels of land in 
 Woolwich containing about 50 acres of arable, marsh, 
 and wood f . t Pat. 
 
 3. Sir John Champneys, of Bexley %. Hen.vin. 
 
 4. George, Lord Cobham' ||. f ™; 
 
 ° ' " % Philip. 
 
 5. Thomas, Lord Cromwell. 252. 
 Cromwell, Earl of Essex, the "Chief Secretary and IL 174.' 
 
 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 Headcorn S, and many other lands, most of which were § Orig. 30 
 
 3 ' J ' Hen.VIII. 
 
 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 estates see, inter alia, Hasted, iii. 413, and references there 
 made ; the grant of Bury Court and other lands to him, Orig., 33 Hen. 
 Till., pt. iii. 54; the Act 31 Hen. VIIL c. 13, and the inquisition on 
 his death in 4 and 5 Ph. and Mary. 
 
400 The Tenures of Kent. [chap. 
 
 a chapel and 200 acres of arable, 400 acres of pasture, 
 200 acres of meadow " called Sexmanshill in East Waston, 
 Newland, Promehill, Old Romney, and Lid, with certain 
 lands in Brookland which belong to the manor of Alding- 
 ton," all which were inherited by his son, John Fetiplaee, 
 according to the inquisition taken on his death. An estate 
 in Farnborough was granted to him in the year following 
 the disgavelling Act. 
 
 * Hast. 7. Sir John Fogge, of Eepton *. 
 
 t Hast. 8. Sir Christopher Hales, of Eastwell f. 
 
 vn. 403. . -jj e k a( j ac q U i re( j before the disgavelling Act of 31 Hen. 
 YIIL, among other estates of various tenures (many being 
 held by castleguard rents of Dover Castle), the manor of 
 Wingate in Littleborne, with 95 acres of arable, 50 acres 
 in Maidstone, with houses, orcbards, &c. ; the manor of 
 Ores, or Grays, in Chislet, with 220 acres; Gore in Up- 
 church, with 200 acres ; St. Alban's Court, with 94 acres 
 in Eewington, manors and large estates in Eastwell and 
 Seaton, a messuage and lands belonging to St. Augustine's 
 
 % Oriff. Abbey, near Canterbury, with others in Adisham {. 
 
 vm. 3i. By the Act 28 Hen. VIII. c. 50 he acquired "the manor 
 of Howfield with its appurtenances in Chartham, Tbaning- 
 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. 
 
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. VIII. , leaving co-heiresses, whose estates are 
 enumerated in the inquisition post mortem. 
 
 9. Thomas Hardres, of Hardres Court*. * Hast.i*. 
 
 ' 305. 
 
 10. Sir Percival Hart \ 
 
 11. Henry Husseyf. t Hast. v. 
 
 J J . 409. 
 
 12. Edward Isaac %, of Patrixborne. + phiiip. 
 
 By the inquisition taken on his death in 17 Eliz. it 
 appears that he died seised of manors and lands in Adis- 
 ham, Bekesborne, Bishopsborne, 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 §. ; § v ««*■ 
 
 14. Edward Monins, of Waldershare. 
 
 15. Thomas Boydon, of East Peckham. 
 
 16. Eeginald Scot, of Smeeth. 
 
 17. Anthony Sondes, of Throwley ||. II Hast. vi. 
 
 18. Edward Thwaites %. f H»st.vii. 
 
 19. William Waller **, of Groombridge. ff Hast 
 20: William Whetenhall. ^™> ' 
 
 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 affected 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 Eoll for 32 Hen. VIII. pt. v., to which Hasted appears 
 to refer, vol. ii. p. 100 ; Originalia, 31 Hen. VIII. pt. ii. p. 291, and the 
 Inq. post mortem of Sir P. Hart in 22 Eliz. 
 
 Dd 
 
402 The Tenures of Kent. [chap. 
 
 included in the operation of both acts, we have the follow- 
 ing list remaining : — 
 
 III. Persons whose lands were disgavelled by the Act of 
 2 and 3 Edw. VI. alone : 
 
 1. Thomas Argal, of East Sutton x . 
 
 2. Sir George Blage. 
 
 He died in 5 Edw. VI. holding the estates of Goulds 
 Chantry at Maidstone, and the lands of Stampitt's Chantry 
 in Darent and Dartford, these latter containing about 120 
 acres. The fields belonging to Gould's Chantry are named 
 in the inquisition. Hasted gives an inaccurate account of 
 these estates, vol. ii. 376, and iv. 296. 
 * Hast. 3. Christopher Bloor *, of Eainham. 
 
 vi. 9. 
 
 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. VIII. , of Sir 
 Koger Cholmley before mentioned. By other grants in 
 the same reign he acquired the manors of Eucksley and 
 Hodsall, and Haliwell in Ash y ; and, according to his in- 
 quisition post mortem, taken in 8 Eliz., he died seised of 
 the estate of Blackfern 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 A . 
 
 x For his disgavelled lands see Orig. 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 Kenchill and Howsney, 
 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 Orig. 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 Coldred, 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 bv 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 a . 
 
 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 Yalence. 
 
 A grant was made to him in 33 Hen. YIIL, 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 
 
 a Eot. Pat. 38 Hen. VIII. pt. xii. ; Orig. 36 Hen. VIII. pt. y. 91. 
 Hast. v. 166. See Orig. 38 Hen. VIII. pt. iii. 33. 
 See Tanner's Notit. Mbnast. under 'Leeds Priory,' and Hast. iii. 426. 
 
 D d2 
 
 1 
 
404 The Tenures of Kent. [chap. 
 
 date, renders 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 land- 
 owners in this list. 
 
 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. VIII. he purchased of Sir Thomas Wyatt 
 the manor of Great Maytham with its lands in Eolvenden, 
 and the Ferry House there, and 230 acres of arable in 
 the same parish, described in the deed more particularly, 
 and the estate of ' Farningham' in Cranbook, contain- 
 ing 100 acres of arable land lying all together. In the 
 year before his lands were disgavelled, he purchased of 
 J. Cheyney his manors and lands in Craythorne (Hope) 
 and Coldred. 
 
 Between the years 31 and 35 Hen. VIII. he acquired 
 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 in 
 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 
 
xvi.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 Rock, 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 d ." 
 
 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 * Hast - iv - 
 
 ' . 300. 
 
 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 Craythorne and Silwell (Newchurch), 
 and the reversion of the rectory of Ebeney. She died in 
 the twenty-second year of Elizabeth. The family seat at 
 Coursehorne 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- tHaet.v.i. 
 
 22. Walter Mayne, of Staplehurst. 
 
 d See the Survey of the possessions of Maidstone taken in 1597, and 
 Gilbert'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. Eot. 1 Edw. VI. 3, 5, and 
 2 Edw. VI. 3 ; Orig. pt. i. 32 Hen. VIII. 104, and 37 Hen. VIII. 
 pt. iii. 12. 
 
406 The Tenures of Kent. [chap 
 
 * Lermard 23. Reginald Peckham *, of Yaldham. 
 
 v. Sussex, 
 
 supra. 24. Thomas Roberts, of Glassenbury. 
 
 25. Robert Rudstone, of "Wittersham. 
 
 He was of Broughton Monchensie. Having engaged in 
 "Wyatt's rebellion his lands were forfeited, but were re- 
 t Hast. v. stored by Act of Parliament in the first year of Elizabeth f . 
 tibid.83, 26. Sir Robert Southwell J, of Mereworth. 
 
 27. Sir Humphrey Style, of Beckenham. 
 
 28. John Tufton, of Hothfield. 
 
 II Doe d. 29. William Twisden ||, of Chelmington. 
 
 Badges', 30. Sir Edmund Walsingham, of Scadbury. 
 
 He died in 4 Edw. VI., and was succeeded by his son, 
 Thomas Walsingham, in all his estates held of the Crown 
 by knight-service, as appears from his inquisition post 
 mortem. Among these were the manors and lands alienated 
 to him by Sir Robert Southwell in West Peckham, and 
 Swanton, Mereworth, Pembury, East Peckham, and Had- 
 low e . It will perhaps illustrate 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. f 
 
 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. Eoll. 17. 
 
 f 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- 
 well, supra. 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 Lennard v. Sussex, supra. See also Orig. 32 Hen. VIII., 
 pt. i. 90. 
 
xvi.J Disgavelled Lands. 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 Eolls 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 Eolls for the year 
 of his death s , 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 Eolls 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 h . 
 
 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 
 
 e Pat. 35 Hen. VIII. pt. ii. h See also Kent. Arch. Soc. v. 246. 
 
408 The Tenures of Kent. [chap. 
 
 a superior tenure, and on the other hand how great a pro- 
 portion of the ancient socage lands have been actually 
 disgavelled by the comprehensive 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 
 acts," and in our own time, that all except an insignificant 
 part of the land is held in that tenure. 
 
 "While the records of the county were difficult and ex- 
 pensive of access, it was natural that great stress should 
 have been laid on the common presumption concerning 
 land in Kent; it was, however, certain that sooner or 
 later it would be found that the presumption is liable to 
 break down, and that very much less land is there de- 
 scendible to heirs male by the custom, 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, allowing for those cases 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 disgavelling 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, 
 
xvi.J 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 
 hy 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 modern and practical purposes. 
 
APPENDIX. 
 
 LIST OE LANDS HELD BY ANCIENT KNIGHT-SEEVICE 
 IN KENT. 
 
 (Taken from Domesday Book, the Book of Aid, and the Peodary of Kent.) 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Aorise 
 
 Acrise. 
 
 Aylesford 
 
 Aylesford. 
 
 Addington 
 
 Addington. 
 
 jj 
 
 Cossenton. 
 
 Aldington 
 
 Aldington. 
 
 >? 
 
 Eocle's. 
 
 Alkham 
 
 Alkham. 
 
 >> 
 
 Tottington". 
 
 )? 
 
 Everings. 
 
 Badlesmere 
 
 Badlesmere. 
 
 , j 
 
 Hallmead. 
 
 >> 
 
 "Woods-court. 
 
 , , 
 
 Hopton. 
 
 Barfreston 
 
 Barfreston. 
 
 Allington 
 
 Allington. 
 
 ?? 
 
 Hartanger. 
 
 Ash 
 
 Fleet. 
 
 Barham 
 
 Barham Court. 
 
 jj 
 
 Goldston. 
 
 E. Barming 
 
 E. Barming. 
 
 j y 
 
 Gosshall. 
 
 »> 
 
 St. Helen's. 
 
 
 Gurson. 
 
 W. Barming 
 
 Jennings-Court 
 
 
 Lees. 
 
 >> 
 
 W. Barming. 
 
 
 Overland. 
 
 Beckenham 
 
 Beckenham. 
 
 
 Twitham. 
 
 jj 
 
 Foxgrove. 
 
 Ash^byWrotham) St. John's Ash. 
 
 j? 
 
 Langley Park. 
 
 ; j 
 
 North Ash. 
 
 Bekeshourne 
 
 Bekeshourne. 
 
 >> 
 
 South Ash. 
 
 Benenden 
 
 Benenden. 
 
 ?> 
 
 Scotgrove. 
 
 )j 
 
 Combden. 
 
 Ashford 
 
 Ashford. 
 
 >» 
 
 Hemsted. 
 
 j? 
 
 Esture. 
 
 Bethersden 
 
 Eytchden. 
 
 >7 
 
 G. Repton. 
 
 Betshanger 
 
 Betshanger. 
 
 >J 
 
 L. Repton. 
 
 Bexley 
 
 Bexley. 
 
 >> 
 
 Wall. 
 
 Bicknor 
 
 Bicknor. 
 
 Ashurst 
 
 Ashurst. 
 
 Bilsington 
 
 Bilsington. 
 
 JT 
 
 Buckland. 
 
 Birchington 
 
 Garling. 
 
 a Tottington was part of the honour of Crevequer, and held in, capite Ing/. p. 
 mortem T. Palmer, 23 Hen. VII. Eccles was part of the Duchy of Lancaster ; it was 
 held of the duchy by knight-service by Edward Poynings, who died 14 Hen. VIII. 
 
{J.14. 
 
 -n.ir.rx. 
 
 IN U1A. 
 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Birling 
 
 Birling. 
 
 Bridge 
 
 G. and L. Bura- 
 
 Bishopsbourne 
 
 Bishopsbourne. 
 
 
 kers. 
 
 Blackmanstone 
 
 Blackmanstone. 
 
 Bromley 
 
 Bromley. 
 
 Bleane 
 
 Bleane. 
 
 jj 
 
 Simpsons. 
 
 jj 
 
 Butler's Court. 
 
 jj 
 
 Sundridge. 
 
 jj 
 
 Well Court. 
 
 Broomfield 
 
 Broomfield. 
 
 Bonnington 
 
 Bonnington. 
 
 Buckland. [ (near 
 
 
 J? 
 
 Kennetts. 
 
 Dover) 
 
 Buckland. 
 
 » 
 
 Shingleton. 
 
 Buckland (near 
 
 
 B oughton-under 
 
 
 Faversham) 
 
 Bingley Wood . 
 
 Bleane 
 
 Boughton. 
 
 jj 
 
 Buckland. 
 
 jj 
 
 Boughton-Court. 
 
 Burham 
 
 Burham. 
 
 Boughton-Aluph Boughton Aluph. 
 
 Burmarsh 
 
 Abbot's Court. 
 
 jj 
 
 Seaton. 
 
 >> 
 
 Tringstone. 
 
 »> 
 
 Wilmington. 
 
 Capel 
 
 Coldham. 
 
 Boughton Mal- 
 
 
 Chalk 
 
 E.andW.Beccles. 
 
 herbe 
 
 Bewley. 
 
 Challock 
 
 Otterpley.. 
 
 jj 
 
 Boughton Mal- 
 
 Charing 
 
 Charing. 
 
 
 herbe. 
 
 jj 
 
 E. Lenham. 
 
 Boughton Mon- 
 
 Boughton Mon- 
 
 jj 
 
 New Court. 
 
 chelsea 
 
 chelsea 1 . 
 
 ?j 
 
 Baywood. 
 
 Boxley 
 
 Boxley. 
 
 jj 
 
 Stilley. 
 
 jj 
 
 Overhill. 
 
 jj 
 
 Pettes. 
 
 j> 
 
 Wavering. 
 
 Charlton 
 
 Charlton. 
 
 Brabourne 
 
 Aldglose. 
 
 jj 
 
 Wricklesmarsh. 
 
 jj 
 
 Brabourne Lees. 
 
 Chart Sutton 
 
 Chart Sutton. 
 
 jj 
 
 Bircholt. 
 
 Chartham 
 
 Horton. 
 
 jj 
 
 Hampton. 
 
 jj 
 
 Shalmsford. 
 
 jj 
 
 Park Farm. 
 
 Chatham 
 
 Sharsted. 
 
 jj 
 
 Pounds. 
 
 jj 
 
 Snodhurst. 
 
 Brasted 
 
 Blasted. 
 
 jj 
 
 Wadeslade. 
 
 Brenchley 
 
 Barnes. 
 
 Chelsfield 
 
 Chelsfield. 
 
 jj 
 
 E. Bokinfold. 
 
 jj 
 
 Goddington. 
 
 jj 
 
 Chekeswell. 
 
 Cheriton 
 
 Ackhanger. 
 
 jj 
 
 Copgrave. 
 
 jj 
 
 Caseborne. 
 
 jj 
 
 Mascalls. 
 
 j j 
 
 Cheriton. 
 
 jj 
 
 Parrocks. 
 
 jj 
 
 Enbrooke. 
 
 b Boughton Monchelsea andPalsty Court, with 220 acres of land, held by Catherine 
 Peckham of the King in capite. Vide her inquisition post mortem 7 Hen. VII. 
 
 c Bingley Wood. See Inq. p. mortem of Thomas Frognall, 20 Hen. VII. That it 
 is a complete manor, see a similar inquisition on death of Henry Lee, 30 Hen. VIII. 
 

 APPENDIX. 
 
 413 
 
 Pa/rish 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Cheriton 
 
 Oaks. 
 
 The Crays 
 
 Ruxley. 
 
 jj 
 
 Swetton. 
 
 jj 
 
 St. Mary's Cray. 
 
 >> 
 
 Sweet Arden. 
 
 jj 
 
 Paul's Cray. 
 
 Chevening 
 
 Chevening. 
 
 Crundale 
 
 Hadlow. 
 
 j} 
 
 Chipstead. 
 
 jj 
 
 Tremworth. 
 
 jj 
 
 Morant's Court. 
 
 jj 
 
 Vanne. 
 
 Chilham 
 
 Chilham. 
 
 Cudham 
 
 Cudham Castle. 
 
 jj 
 
 Esture. 
 
 jj 
 
 Mares Place. 
 
 »j 
 
 Herst. 
 
 Cuxton 
 
 Beresse. 
 
 jj 
 
 Shillingheld. 
 
 jj 
 
 Cuxton. 
 
 »j 
 
 Youngs. 
 
 jj 
 
 Wieham. 
 
 Chislet 
 
 Chislet. 
 
 Dartford 
 
 Dartford. 
 
 jj 
 
 Grays. 
 
 jj 
 
 Portbridge. 
 
 Cliffe (by Roches 
 
 
 Davington 
 
 Burdfield. 
 
 ter) 
 
 Ballards. 
 
 jj 
 
 Davington. 
 
 jj 
 
 Batts. 
 
 jj 
 
 Eishbourne. 
 
 jj 
 
 Cerdons. 
 
 Denton 
 
 Denton. 
 
 jj 
 
 Mortimers. 
 
 jj 
 
 Tappington. 
 
 j? 
 
 Northope. 
 
 Deptford. 
 
 Deptford. 
 
 ?J 
 
 Southwold. 
 
 jj 
 
 Saye's Court. 
 
 "W. Cliffe 
 
 Solton. 
 
 Detling 
 
 E. and W". Court. 
 
 jj 
 
 W. Cliffe" 
 
 Ditton 
 
 Brampton. 
 
 Cobham 
 
 Henhurst. 
 
 jj 
 
 Ditton. 
 
 JJ 
 
 Mount. 
 
 jj 
 
 Sifleston. 
 
 Coldred 
 
 Coldred. 
 
 Doddington 
 
 Down-Court. 
 
 >J 
 
 Popshall. 
 
 jj 
 
 Sharstead. 
 
 Cowling 
 
 Cowling. 
 
 Dymchurch 
 
 Eastbridge. 
 
 Cranbrook 
 
 Buckhurst. 
 
 Eastling 
 
 Arnolds. 
 
 ?j 
 
 Copton. 
 
 jj 
 
 Diven. 
 
 jj 
 
 Sissinghurst. 
 
 jj 
 
 Huntingfield 
 
 ?j 
 
 Stone. 
 
 
 Court. 
 
 Crayford 
 
 Crayford. 
 
 jj 
 
 North Court. 
 
 »» 
 
 Hoobery. 
 
 jj 
 
 Rolles e . 
 
 The Crays 
 
 Foots Cray. 
 
 Eastry 
 
 St. Alban's Court. 
 
 JJ 
 
 Grays. 
 
 jj 
 
 Shingleton. 
 
 
 Kitchen Grove. 
 
 Eastwell 
 
 Eastwell. 
 
 JJ 
 
 Forth Cray. 
 
 Elham. 
 
 Elham. 
 
 d West Cliffe. Inq.p. mortem Thomas Cobham, 20 Hen. VII. 
 
 ' In 20 Edw. III. held by Lady De Campania as one fee : in the reign of Henry 
 VIII. by A. Aucher and Greenstreet; described as "lands and woods in Eastling 
 called Eolles, once parcel of Dyve Court, and help by castleguard rent of Dover 
 Castle." 
 
414 
 
 APPENDIX. 
 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Elham 
 
 Mount. 
 
 Hadlow 
 
 Canstons. 
 
 Elmsted 
 
 Elmsted. 
 
 >> 
 
 Crombery. 
 
 y> 
 
 Southligh. 
 
 n 
 
 Peekhams. 
 
 Eltham 
 
 Eltham. 
 
 L. Hailing 
 
 Langridge. 
 
 ?> 
 
 East Home. 
 
 Halsted 
 
 Halsted. 
 
 )» 
 
 Well Hall. 
 
 Ham 
 
 Ham. 
 
 Erith 
 
 Erith. 
 
 Harbledown 
 
 Poldhurst. 
 
 Eynsford 
 
 Aston Lodge. 
 
 L. Hardres. 
 
 Diggs Court. 
 
 tt 
 
 Eynsford. 
 
 n 
 
 Lower Hardres. 
 
 tt 
 
 South Court. 
 
 Upper Hardres 
 
 TJ. Hardres. 
 
 Eythorne 
 
 Elmton. 
 
 Harrietsham 
 
 E. Farborne. 
 
 W. Farleigh 
 
 W. Earleigh. 
 
 77 
 
 W. Farborne. 
 
 j? 
 
 Totesham Hall. 
 
 J» 
 
 Harrietsham. 
 
 Farnborough 
 
 Farnborough. 
 
 >7 
 
 Harbilton. 
 
 >) 
 
 Farnborough 
 
 >> 
 
 Marley Court 8 . 
 
 
 Hall. 
 
 Hartley 
 
 Hartley. 
 
 Farningham 
 
 Chartons. 
 
 Harty (Isle of) 
 
 Champion Court, 
 
 n 
 
 Chimmans. 
 
 »> 
 
 Longhouse. 
 
 >> 
 
 Farningham. 
 
 >> 
 
 Moat. 
 
 Faversham 
 
 Faversham. 
 
 j? 
 
 Norton. 
 
 Fawkham 
 
 Old and New 
 
 7> 
 
 Saye's Court. 
 
 
 Fawkham. 
 
 Hastingleigh 
 
 Hastingleigh. 
 
 Folkstone 
 
 Folkstone. 
 
 Hawkinge 
 
 Biloherst. 
 
 si 
 
 Tirlingham. 
 
 77 
 
 Combe. 
 
 Frindsbury 
 
 Eslingham. 
 
 Hever 
 
 Hever. 
 
 Erinsted 
 
 Frinsted. 
 
 Higham 
 
 Littlechureh. 
 
 jj 
 
 Fokeham f . 
 
 >> 
 
 L. and G. Oakley 
 
 >> 
 
 Meriam's Court. 
 
 High Halton 
 
 Tiffenden. 
 
 jj 
 
 Yokes Court. 
 
 Hoo St. War- 
 
 
 Gillingham 
 
 Gillingham. 
 
 burgh 
 
 Hoo. 
 
 n 
 
 Grange. 
 
 Horsmonden 
 
 Horsmonden. 
 
 >> 
 
 E. and W. Court. 
 
 Horton Kirby 
 
 Bermondsey. 
 
 Goodnestone 
 
 Goodnestone. 
 
 )> 
 
 Horton Kirby. 
 
 jj 
 
 Poplar Court. 
 
 Hothfield 
 
 Hothfield. 
 
 Graven ey 
 
 Graveney. 
 
 Hougham 
 
 Hougham. 
 
 Gravesend 
 
 Gravesend. 
 
 77 
 
 Hougham Court. 
 
 Gunston 
 
 Gunston. 
 
 J) 
 
 Maxton Court. 
 
 ' Fokeham. Part of St. Augustine's barony : Inq. post mortem of James Diggs, 
 28 Hen. VIII. 
 
 « Harrietsham. Hugh de Gerunde had one knight's-fee here in 20 Edw. III., 
 which in the reign of Henry VIII. was held by Sedley, "et patet per Antiquas recordas 
 in Seaccario quod tenetur de Rege in capite ut de Curia de Redlevet." 
 
APPENDIX. 
 
 415 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Houghan 
 
 Siberston. 
 
 Littlebourne 
 
 "Wingate. 
 
 Hunton 
 
 Bensted. 
 
 Luddenham 
 
 Luddenham. 
 
 >> 
 
 Hunton. 
 
 Luddesdown 
 
 S. Buckland. 
 
 Hurst 
 
 Goldenhurst. 
 
 I? 
 
 Luddesdown. 
 
 >> 
 
 Hurst. 
 
 Lullingstone 
 
 Lullingstane. 
 
 Ickham 
 
 Apulton. 
 
 it 
 
 Lullingstone h . 
 
 Held 
 
 Hever Court. 
 
 >> 
 
 Peyforer. 
 
 Ightham. 
 
 Ighthani. 
 
 Lydden 
 
 Cocklescombe. 
 
 >> 
 
 Moat. 
 
 j? 
 
 Perryn. 
 
 )? 
 
 St. Cleres. 
 
 )? 
 
 Swanton. 
 
 Kemsing 
 
 Kemsing. 
 
 Lyminge 
 
 Ligh Court. 
 
 Kenardington 
 
 Kenardington. 
 
 u 
 
 Sibton. 
 
 Kennington 
 
 Kennington. 
 
 jj 
 
 Lympne. 
 
 Keston 
 
 Keston. 
 
 Lympne 
 
 Berwick. 
 
 Kingsdown 
 
 Chepsted. 
 
 >> 
 
 L. "Wilmington. 
 
 >> 
 
 Chepsted Hever. 
 
 n 
 
 Otterpoole. 
 
 >> 
 
 Kingdown. 
 
 >) 
 
 Street. 
 
 )j 
 
 Maplescombe. 
 
 Maidstone 
 
 Maidstone. 
 
 Kingstone 
 
 Kingstone. 
 
 n 
 
 Mote. 
 
 Knockholt 
 
 Knockholt. 
 
 >> 
 
 G. Buckland. 
 
 Knolton 
 
 Knolton. 
 
 W. Mailing 
 
 W. Mailing. 
 
 Lamberhurst 
 
 Lamberhurst. 
 
 >> 
 
 Clements. 
 
 E. Langdon 
 
 Langdon. 
 
 (St. John's) Mar- 
 
 
 )> 
 
 Pising. 
 
 gate 
 
 Dene. 
 
 W. Langdon 
 
 W. Langdon. 
 
 Merewortb 
 
 Mereworth. 
 
 Langley 
 
 Brising. 
 
 j) 
 
 Swanton Court. 
 
 i) 
 
 Langley. 
 
 j> 
 
 Yokes Place. 
 
 Leaveland 
 
 Leaveland. 
 
 Merston 
 
 Ballards. 
 
 Lee 
 
 Lee. 
 
 >> 
 
 East Hall. 
 
 Leeds 
 
 Leeds. 
 
 i> 
 
 Hurst. 
 
 Lenham 
 
 Down Court. 
 
 >> 
 
 Hurst Hall. 
 
 
 Lenham. 
 
 n 
 
 Merecourt. 
 
 
 Middle Shelve. 
 
 tt 
 
 Merston. 
 
 
 West Shelve. 
 
 Midley 
 
 Midley. 
 
 Lewisham 
 
 Lewisbam. 
 
 Milsted 
 
 Milsted. 
 
 Leybourne 
 
 Leybourne. 
 
 Milton 
 
 Milton. 
 
 Littlebourne 
 
 Garrington. 
 
 Milton (by 
 
 
 
 Littlebourne. 
 
 Gravesend) 
 
 Milton. 
 
 JJ 
 
 Walton. 
 
 1 Minster 
 
 Minster. 
 
 - Lullingstone, with "Resse, Pokys-Peyforer, and Cockhurst," held of the king 
 in capite by military service by William Peckham.-Jrc?. post mortem 5 Hen. VII. 
 
"t' u 
 
 n.rr& 
 
 nuiAi 
 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Minster 
 
 Thome 
 
 Norton 
 
 Provenders. ' 
 
 )> 
 
 Spensers. 
 
 jj 
 
 Stuppington. 
 
 »> 
 
 "Waschester. 
 
 Nurstead 
 
 Nurstead. 
 
 Molash 
 
 Witherling. 
 
 Oare 
 
 Oare. 
 
 L. Moneyham 
 
 L. Moneyham. 
 
 Offiham 
 
 Offham. 
 
 Monks Horton 
 
 Monks Horton. 
 
 19 
 
 Snodbeane. 
 
 Murston 
 
 Murston. 
 
 Orleston 
 
 Orleston. 
 
 Nackington 
 
 Heppington. 
 
 Orpington 
 
 Mayfield Place. 
 
 »j 
 
 Hethenland '. 
 
 Ospringe 
 
 Cokes \ 
 
 ?j 
 
 Nackington. 
 
 19 
 
 Elvyland. 
 
 ji 
 
 Sextries. 
 
 19 
 
 Putwood. 
 
 >» 
 
 Staplegate. 
 
 11 
 
 Ospringe. 
 
 Nettlested 
 
 Hylth Park. 
 
 11 
 
 Queen Court. 
 
 ?) 
 
 Nettlestead. 
 
 Otford 
 
 Danehull. 
 
 Newchurch 
 
 Organers. 
 
 j> 
 
 Otford. 
 
 >> 
 
 Silwell. 
 
 ty 
 
 Sergeants Otford. 
 
 Newenden 
 
 Lossengham. 
 
 Otham 
 
 Otham. 
 
 j> 
 
 Newenden. 
 
 Otterden 
 
 Herst. 
 
 Newington 
 
 Newington Bell- 
 
 >j 
 
 Otterden. 
 
 
 house. 
 
 Oxney 
 
 Oxney. 
 
 J? 
 
 Newington Ber- 
 
 Padlesworth 
 
 Padlesworth. 
 
 
 tram. 
 
 Patrixbourne 
 
 Higham Wood. 
 
 j> 
 
 Overland. 
 
 >> 
 
 Patrixbourne. 
 
 Newington (by 
 
 
 "W. Peckham 
 
 Oxenhoath. 
 
 Sittingbourne) 
 
 Newington. 
 
 j> 
 
 W. Peckham. 
 
 Newnham 
 
 Champion's Court. 
 
 Penshurst 
 
 Penshurst. 
 
 >» 
 
 Sholand. 
 
 u 
 
 Tensfield. 
 
 Nonington 
 
 Eatling. 
 
 Petham 
 
 Swardling. 
 
 >? 
 
 Soles. 
 
 Pevington 
 
 Malmains. 
 
 Northbourne 
 
 L. Betshanger. 
 
 >> 
 
 Pevington. 
 
 >> 
 
 Pinglesham. 
 
 ?j 
 
 Shurland. 
 
 j? 
 
 Northbourne. 
 
 7} 
 
 Surrenden. 
 
 >> 
 
 Tickenhurst. 
 
 Pluckley 
 
 Boting. 
 
 J? 
 
 West Court. 
 
 Plumstead 
 
 Plumstead. 
 
 Northfleet 
 
 Ifield Court. 
 
 Postling - 
 
 Postling. 
 
 j» 
 
 Northfleet. 
 
 Preston (by 
 
 
 Norton 
 
 Norton. 
 
 Wingham) 
 
 Preston. 
 
 1 "James Hales was tenant (35 Hen. VIII.) of forty-two acres called Hethenland; 
 and a house and lands called Staplegate; and lands called Natington, containing 
 forty- three acres by estimation."— Petit' s Notes on Feodary of Kent. 
 
 k Cokes. A tenement or messuage in Ospringe held of the king in capite by knight- 
 service.— Inq. post mortem Rich. Cocks, 16 Hen. VII. 
 

 APPENDIX. 
 
 417 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Preston (by 
 
 
 Sellindge 
 
 Tattenham. 
 
 Faversham) 
 
 Perry Court. 
 
 n 
 
 G. Wilmington. 
 
 )j 
 
 Westwood. 
 
 Selling 
 
 Bewper. 
 
 Eeculver 
 
 Eeculver. 
 
 ?) 
 
 Selling. 
 
 Ridley 
 
 Eidley. 
 
 Sevington 
 
 Hawkswell. 
 
 Eingwold 
 
 Eingwold. 
 
 it 
 
 Sevington. 
 
 Eipple 
 
 Detling. 
 
 Sheldwieh 
 
 Sheldwich. 
 
 j> 
 
 Eipple Court. 
 
 Sheppey 
 
 
 Eiver 
 
 Archer's Court. 
 
 (Isle oi) 
 
 Norwood. 
 
 ?? 
 
 Kearsney Abbey. 
 
 » 
 
 Stampits. 
 
 » » 
 
 Eiver. 
 
 Shipborne 
 
 Shipborne. 
 
 Rochester 
 
 G. Delce. 
 
 Shoreham 
 
 Champs. 
 
 jj 
 
 L. Delce. 
 
 n 
 
 Cockhurst. 
 
 )> 
 
 Nashenden. 
 
 ?j 
 
 Filson. 
 
 Rolvenden 
 
 Frensham. 
 
 ) j 
 
 Halsted. 
 
 n 
 
 Forsham. 
 
 n 
 
 Preston. 
 
 »j 
 
 Halden. 
 
 n 
 
 Sepham. 
 
 j) 
 
 £einsham. 
 
 a 
 
 Shoreham. 
 
 >» 
 
 Lowden. 
 
 Shorne 
 
 Shorne. 
 
 5) 
 
 L. Maytham. 
 
 Shoulden 
 
 Cottington 
 
 IT 
 
 G. Maytham. 
 
 
 Court '. 
 
 Ruckinge 
 
 Poundhurst. 
 
 Sibertswold 
 
 Upton Wood. 
 
 u 
 
 Euckinge. 
 
 Sittingbourne 
 
 
 >> 
 
 Westberies. 
 
 (with Milton) 
 
 Sittingbourne. 
 
 jj 
 
 Westgate. 
 
 n 
 
 Milton. 
 
 Eyarsh. 
 
 Eyarsh. 
 
 ii 
 
 Norwood Chaste- 
 
 (St. Lawrence) 
 
 
 
 ners. 
 
 Eamsgate 
 
 Ossunden. 
 
 Smeeth 
 
 Evegate. 
 
 )7 
 
 Nether Court. 
 
 Snargate 
 
 Snargate. 
 
 JJ 
 
 Upper Court. 
 
 Snave 
 
 Snave. 
 
 (St. Mary's) 
 
 
 a 
 
 Snavewick. 
 
 Hoo 
 
 Wimonden. 
 
 Snodland 
 
 Veeles. 
 
 Saltwood 
 
 Brockhull. 
 
 Southfleet 
 
 Poole. 
 
 j» 
 
 Saltwood. 
 
 Stalisfield 
 
 Darby Court. 
 
 Sandhurst 
 
 Sandhurst. 
 
 )J 
 
 Stalisfield. 
 
 Sarre 
 
 Sarre. 
 
 Standford 
 
 Shorne Court. 
 
 Seale 
 
 Seale. 
 
 >j 
 
 Standford. 
 
 Sellindge 
 
 Ealdham. 
 
 j? 
 
 Westenhanger. 
 
 n 
 
 Haringe. 
 
 Stansted 
 
 Soranks. 
 
 j ? 
 
 Sellindge. 
 
 jj 
 
 Stansted. 
 
 Cottington Court ; vide inq. post mortem Thomas Barton, 24 Hen. VII. 
 
 E e 
 
418 
 
 APPENDIX. 
 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 Stelling 
 
 Pryerne Park. 
 
 Thurnham 
 
 Eynton. 
 
 Stockbury 
 
 Cowsted. 
 
 J; 
 
 Thurnham. 
 
 n 
 
 Stockbury. 
 
 Tilmanstone 
 
 North Court. 
 
 n 
 
 Yelsted. 
 
 ii 
 
 South Court. 
 
 Stodmarsh 
 
 Stodmarsh. 
 
 Tonbridge 
 
 Barden. 
 
 Stoke 
 
 Tudors. 
 
 ii 
 
 Dachurst. 
 
 n 
 
 Malmains. 
 
 ii 
 
 Hilden. 
 
 ■Stone 
 
 Cotton. 
 
 ii 
 
 South. 
 
 n 
 
 Stone. 
 
 Tong 
 
 Tong. 
 
 ji 
 
 Stone Castle. 
 
 Tudely 
 
 Tatlingbury. 
 
 Stowting 
 
 Stowting. 
 
 Jf 
 
 Tudely. 
 
 Strood 
 
 Boncakes. 
 
 Tunstall 
 
 Tunstall. 
 
 ii 
 
 Goddington. 
 
 Ulcombe 
 
 Ulcombe. 
 
 ii 
 
 Strood. 
 
 Upchurch 
 
 Gore. 
 
 Sturry 
 
 Mayston Court. 
 
 Waldershare. 
 
 Apulton. 
 
 ii 
 
 Sturry. 
 
 ii 
 
 "Waldershare. 
 
 Sundridge 
 
 Sundridge. 
 
 "Walmer 
 
 Walmer. 
 
 Suttoa (by 
 
 
 Waltham 
 
 Ashenfield. 
 
 Dover) 
 
 East Sutton. 
 
 ii 
 
 Wadnall. 
 
 ii 
 
 Sutton Court. 
 
 ii 
 
 Whitacre. 
 
 ii 
 
 Sutton Farm. 
 
 ii 
 
 "Waltham. 
 
 E. Sutton 
 
 Charlton. 
 
 Watringbury 
 
 Canons' Court. 
 
 ii 
 
 E. Sutton. 
 
 ii 
 
 Westbery. 
 
 Sutton-at-Hone 
 
 Sutton Place. 
 
 ii 
 
 Watringbury. 
 
 Sutton Valence 
 
 Sutton Valence. 
 
 Westbere 
 
 Haseden. 
 
 Swalecliffe 
 
 Chestfleld. 
 
 ii 
 
 Hopland'l 
 
 Swanscombe 
 
 Alkardin. 
 
 Westerham 
 
 Westerham. 
 
 ii 
 
 Swanscombe. 
 
 Westwell 
 
 Beamston. 
 
 Swingfleld 
 
 Bonnington. 
 
 ii 
 
 Dean Court. 
 
 ii 
 
 Langdon. 
 
 ii 
 
 Eipple Court. 
 
 ii 
 
 Swingfield. 
 
 ii 
 
 Perytown. 
 
 Tenterden 
 
 Godden. 
 
 Whitfield 
 
 Bewsfield. 
 
 ii 
 
 Tenterden. 
 
 ii 
 
 Linacre. 
 
 Teynham 
 
 Teynham 
 
 ii 
 
 L. Pising. 
 
 Throwley 
 
 Throwley. 
 
 ii 
 
 Whitfield. 
 
 Thurnham 
 
 Addington. 
 
 Whitstaple 
 
 Cundies-hall m . 
 
 ii 
 
 Bimbury. 
 
 ii 
 
 Clowton. 
 
 ii 
 
 Addington Cob- 
 
 ii 
 
 Shourt. 
 
 
 ham. 
 
 ii 
 
 Tangreton. 
 
 ii 
 
 East Court. 
 
 ii 
 
 Whitstaple. 
 
 ™ Cundies-hall, with fifty-two acres of demesne, held by William Eoper by knight- 
 service ; see tys inq. post mortem 7 Hen. VII. 
 

 APPENDIX. 
 
 419 
 
 Parish. 
 
 Manors. 
 
 Parish. 
 
 Manors. 
 
 "Wichling 
 
 "Wichling. 
 
 Woolwich 
 
 Southall. 
 
 E. Wickham 
 
 E. Wiokham. 
 
 Wormshill 
 
 Wormshill. 
 
 W. Wickham 
 
 W. Wickham. 
 
 Wotton 
 
 WickhamBushes. 
 
 Wickham Breaux Wickham Breaux. 
 
 >> 
 
 Wotton Court. 
 
 ■Wilmington 
 
 Wilmington. 
 
 Wouldham 
 
 Bewley Court. 
 
 Wingham 
 
 Wingham. 
 
 )> 
 
 Littlehill. 
 
 "Wittersham 
 
 Owlie. 
 
 !> 
 
 Starkey. 
 
 j> 
 
 Palsty Court. 
 
 Wrotham 
 
 L. Yaldham. 
 
 Woodchurch 
 
 Place House. 
 
 >» 
 
 W. Taldham. 
 
 5) 
 
 Woodchurch. 
 
 19 
 
 Wrotham. 
 
 Woodnesborough Grove. 
 
 Wye 
 
 Wye. 
 
 
 Hiimmill. 
 
 Talding 
 
 Henhurst. 
 
 j? 
 
 Hammill Court. 
 
 j? 
 
 Ladingford. 
 
 )» 
 *» 
 
 Polton. 
 Woodneshorough. 
 
 jj 
 
 Woodfold"- 
 
 » Woodfold. " Note, quod non solvit aliqnem redditum (35 Hen. VIII.) et tenetur 
 per aervitium militare."— JPetifs Notes on, Feodary of Kent. 
 
INDEX. 
 
 A. 
 
 Acre, Kentish, 129; Flemish, ib. ; Cor- 
 nish, ii. 
 
 Advowsons, descent of, 11, 215, 218, 
 298. 
 
 Aid, Book of, described, 283, 313. 
 
 Aids, Feudal, 283, 344, 346. 
 
 Allodium, 9, 26, 64, 112, 161, 175, 197, 
 225, 237 ; distinguished from gavel- 
 kind, 29, 269. 
 
 Ancient demesne, tenure of, a variety of 
 socage, 179; must be as old as the 
 Conquest, 157; tried 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 in capite " in manors of, 313, 344, 
 348. 
 
 Ancient socage, (see Burgage, Gavelkind, 
 Ancient Demesne). 
 
 Avur-land, 32. 
 
 B. 
 
 Barony, tenure by, 197, 305, 322, 334, 
 341, 344, 356 ; the highest service of 
 chivalry, 197 ; barons 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 Church, 
 18; of the nobles, 25. 
 
 Bordarii, 9, 106, 107, 137, 148, 149, 192, 
 215 ; an inferior freehold tenure, 120, 
 147; their service, 33, 119. 
 
 Borough-English, (see Burgage). 
 
 Burgage, tenure of, described, 147, 152; 
 condition of ancient boroughs, 152 ; 
 a species of socage, 155 ; affirming 
 a borough, 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; horough- 
 English, 41, 87, 89; where prevalent, 
 163 ; custom of Marchet, 164 ; origin 
 of borough-English, 165 ; in freeholds, 
 ibt; 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. ; 
 custom of London, 178 ; alienation by 
 infant burgess, ib. ; rents issuing from 
 burgage and borough-English land, 
 175, 188. 
 
 Castleauard, 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 j 
 varieties of, 200 ; of Dover Castle, 199 ; 
 of other castles, 201 ; castleguard rents, 
 202, 378 ; customs of castles in Kent, 
 203 ; commutation of services, 205 ; 
 converted to socage, ib., 207; advow- 
 sons of manors held by, 218. 
 
 Corn age, tenure of, 227. 
 
 Corn-gavel land, 137, 353. 
 
 Colarii, 107, 109, 121, 149, 215. 
 
 Curtesy, tenant by, (see Gavelkind). 
 
422 
 
 INDEX. 
 
 D. 
 
 Danger, custom of, in Weald, 196. 
 
 Disgavelling power, 365 ; by prerogative, 
 ib. ; privilege of Archbishops, 366 ; con- 
 fined to lands of immediate tenants, 
 368. 
 
 Disgavelling by Act of Parliament, 374, 
 379; necessity for, 382; Act of 31 
 Hen. VIII., 380; Act of 2 and 3 Edw. 
 VI., 383 ; incidents of disgavelled 
 lands, 385 ; later disgavelling acts, 
 391. 
 
 Disgavelled lands of Argal, 402; Baker, 
 392; Beclaunde, 367; Bernfield, ib.; 
 Blage, 402; Bloor, ib.; Bowes, 398, 
 402 ; Brown, 390 ; Lord Borough, 
 398 ; Champneys, 399 ; Cheyney, 
 384, 393, 404; Cliolmley, 394; Lord 
 Cobham, 369, 382, 399; Colepepper, 
 402, 403; Covert, 403, 405; Lord 
 Cromwell, 376, 399; Darrell, 403; 
 Fetiplace, 399; Fogg, 400; Fynch, 
 403; Gate, ib. ; Gatewyk, 370; 
 Guildford, 365, 374, 394; Hales, 
 360, 394, 400; Hardres, 401; Har- 
 lakenden, 395 ; Harman, 403; Harper, 
 ib. ; Hart, 401 ; Hayman, 403 ; Hend- 
 ley, ib., 405; Hussey, 401; Isaac, ib. ; 
 Isley, 385, 390,405 ; Kempe, 395; Lee, 
 401; Leybourne, 353, 372; Lovelace, 
 405; Mayne, ib.; Monins, 401; Moyle, 
 359, 396 ; Northwood, 373 ; Peckham, 
 319, 406; Potter, 391; Pratt, 365, 368 ; 
 Rivers, . 391 ; Roberts, 406 ; Roper, 
 381, 385, 396; Roydon, 401; Rud- 
 stone, 406; St. Leger, 308, 396; 
 Sands, 401 ; Scott, ib. ; Southwell, 
 406; Style, ib.; Thwaites, 401 ; Tuf- 
 ton, 406; Twisden, 389, 406; Waller, 
 401; Walsiugham, 406; Whetenhall, 
 401; White, 407; Willonghby, 401; 
 Wilford, 397 ; Lord Windsor, 401 ; 
 Wotton, 397, 407 ; Wyatt, 365, 375, 
 405, 407. 
 Divine service, tenure of, 275. 
 Domesday Book, account of, 113 ; useful 
 in questions of gavelkind, 123 ; mea- 
 sures used in, 116 ; description of Kent 
 in, 147. 
 
 Dower, (see Gavelkind, Burgage, Writ of 
 
 Dower). 
 Drengage, tenure of, 65, 71, 105 ; origin 
 
 of, 25, 60, 61 ; common in Kent, 65 ; 
 
 and in the North, 66l ; Kentish record 
 
 concerning, 68, 72. 
 
 E. 
 
 TSleernosyna libera, (see Francalmoigne). 
 Escheat, (see Gavelkind). 
 Escheat rolls, 315. 
 
 Exchequer, Red Book, 305 ; Black Book, 
 344. 
 
 Felony, Kentish custom as to, 43, 73. 
 
 Feudal system, 3, 10, 59; changes in 
 Kentish law, 63 ; decline of, 5. 
 
 Fine rolls, 315. 
 
 Folkland, 12, 32, 119. 
 
 Francalmoigne, tenure of, among the 
 Anglo-Saxons, 17, 18 ; duties of tenants, 
 19; franchises of tenants, 20; how 
 created, 17; not affected by the Con- 
 quest, 65, 236 ; the highest tenure, 
 237 ; ancient, is not gavelkind, 238, 
 270, 279, (c. i., ii., xi., xii.) ; divisions 
 of francalmoigne in Kent. 240; not 
 charged with feudal burdens, 242 ; 
 alienation of lands in, 244, 356 ; lands 
 becoming socage, not gavelkind, 245, 
 258, 356 ; ownership by Church no 
 evidence of ancient francalmoigne, 259, 
 264, 267. 
 
 Frank-fee, 111. 
 
 Gavelkind, tenure of, c. i., iii., iv. ; is 
 ancient socage in Kent, 9, 47 ; writers 
 on, 7 ; limits of, 11, 46, 59, 112 ; deri- 
 vation of name, 29, 239 ; a freehold 
 tenure, 31 ; how created, 35 ; ancient 
 varieties of, 32, 35 ; rents and services 
 of, 36 ; ancient condition of tenants in, 
 37 ; semi-servile classes, 39 ; penny- 
 gavel rents, 37, 137; old law of, 38; 
 as to alienation, 39; devise, 40; de- 
 scent, 41 ; dower, 42 ; curtesy, 43 ; 
 escheat, ib. ; 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, ib.; requisites for, ib., 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, ib. ; customary dower, 
 86 ; similar customs elaewhere, 88, 89 ; 
 customary curtesy, 91, 328 ; common 
 in gavelkind land, 93, 95 ; waste lands, 
 11, 93, 95; obsolete customs of de- 
 • scent, 96, 173 ; trial by writ of right, 
 96, 308 ; mode of proceeding in gavel- 
 kind land, 96, 98 ; no trial by battle 
 on gavelkind land, 97, 100, 103, 308, 
 340 ; tenures inferior to, 39, 107, 108, 
 112, 147, (see Sordarii, Cotarii); de- 
 mesnes of manors originally in francal- 
 moigne, or any tenure of chivalry not 
 gavelkind, 10, 112; corn-gavel land, 
 37, 137, 353 ; tenure cannot be trans- 
 planted, 157 ; effect of General En- 
 closure Act, 158, 160 ; tenure in manors 
 of ancient demesne " gavelkind in ca- 
 pite " where existing, 300, 313, 344. 
 
 H. 
 Half-blood, descent to, in burgage and 
 
 gavelkind, 173. 
 Heriots, 16, 32, 75, 109, 272. 
 Hundred-rolls, 315. 
 
 Infant, (see Burgage, Gavelkind, Socage). 
 Inland, 33, 34, 110, (see Sordarii). 
 Inrent-land, 137. 
 
 K. 
 
 Knights, 59, 141 ; none of lands of Priory 
 of Christckurch, 69, 105 ; formed jury 
 of grand assize, 96 ; except in suits for 
 gavelkind land, 97. 
 
 Knights 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, 
 land 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 changed to, 
 240; created on gavelkind land, 261; 
 changed to tenure in francalmoigne, 
 240; amount of land held by, temp. 
 Hen. VI., 287, 313, 343, 344, 347; 
 converted to socage, 347 ; confusion in 
 boundaries of, in Kent, 376. 
 
 L. 
 
 Land, old measures of, 116, 123; the 
 librate, 71; Kentish suling, 124, 132, 
 134, 135; Kentish acre, 129; Kentish 
 yokeland, or jugum, 131; day-work, 
 130; hide of land, 126. 
 
 Land-peerage, custom of, 195. 
 
 M. 
 
 Manors, system of, introduced, 9, 121 ; 
 
 several parts of, are of one tenure, 351. 
 Monasteries dissolved, 243, 244, 261, 279, 
 
 375. 
 
 Neat-land, 32. 
 
 N. 
 
 P. 
 
 Parrock, Court of, in "Weald of Kent, 195. 
 Partible lands, parceners, (see Gavelkind). 
 Peers of Kent, 28. 
 Penny-gavel land, 137, 353. 
 Pinenden Plea, 63. 
 Prerogative, (see Disgavelling). 
 
424 
 
 INDEX. 
 
 R. 
 
 Reeve-land, 81. 
 
 Rents, descent of, issuing from gavelkind 
 land, 188; appendant to the seigniory, 
 ib.; issuing from burgage tenements, 
 b rcugh-English lai.ds, or ancient de- 
 mesne, 175, 188. 
 
 Scutage, 307. 
 
 Sergeanty, tenure of, c. x. ; grand and 
 petty, 221, 320, 344, 347 ; held only of 
 King, 221; at first held of nobles, 
 234; varieties of grand, 222 ; demesnes 
 not gavelkind, 223 ; petty, at first 
 knight-service, ib. ; afterwards socage, 
 but not gavelkind, 224. 
 
 Sergeanties converted to knight-service, 
 225 ; tenure of cornage, 227 ; tenure of 
 the banner, ib. 
 
 Socage, tenure of, c. iii., xv. ; ancient, (see 
 Ancient Demesne, Burgage, Gavelkind, 
 Francnlmoigne) ; changed at the Con- 
 quest, 60, 72; free socage, 110 ; seve- 
 ral customs of, 86; socage in capite, 
 313, 344, 357. 
 
 Stockikind, a variety of gavelkind, 82. 
 
 Sulings, suling-land, (see Land, measures 
 of). 
 
 T. 
 
 Tanistry, 55. 
 
 Tenures, superior to gavelkind, (see 
 Francalmoigne, Barony, Sergeanty, 
 Castleguard, Knight-service, Socage in 
 capite). 
 
 Thaneland, 112, 119, 161, 225, 332. 
 
 Thanes, three classes of, 25, 28; lessor, 
 (see Drengage). 
 
 Threngs, (see Drengage). 
 
 Tithes, in Weald of Kent, 195 ; impro- 
 priate, issuing from customary lands, 
 259, 262; demesne tithes, 214, 266; 
 exemption from, 335. 
 
 W. 
 Wardship, (see Gavelkind). 
 Waste lands, 11, 93, 95. 
 Weald of Kent, 193, 195. 
 Writ of dower, 309. 
 Writ of right, 96, 97, 100. 
 
 Y. 
 Yoke-land, (see Land, measures of). 
 
 Jtrintcb by |amcs furlicr mib do., ffivoum-narb, ©tforb. 
 
WOEK8 
 
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