been admitted in evidence to a jury even from Mr. Lambard's copy. Robinson says "As the particular customs of Gavelkind are traversable, it may be proper here to take notice of some evidence of an extraordinary nature admitted in the case of Launder and Brookes (Cro. Car. 561) to prove the custom of devising as Lambard's Perambulation of Kent, out of which was shewn the copy of the Custumal, saying that lands may be given or sold without the lord's licence; and a precedent was produced out of the same book, p. 492 (as it seems by the court themselves), of a testament before the Conquest," &c. 26 It is proper to remark, that the Custumal itself is nowhere enrolled of record; but from its internal evidence we find that the customs therein recorded were allowed before the justices in Eyre, in the twenty-first year of the reign of K. Edward the First (A.D. 1293). And Lord Coke gives it the high appellation of "Statutum de Consuetudinibus Kanciæ," but it seems on no other foundation than that it is sometimes to be met with in old collections of the statutes, as are many other matters which were never enacted by authority of Parliament, and is so printed by Tottel (A.D. 1556). Robinson continues : "I imagine the Custumal rather to have been a private collection of such things as had been found per totum comitatum, or were otherwise known to be the customs of Kent, than a record of a public nature, and the words of Mr. Lambard's copy, that these customs were allowed before the justices in Eyre in the 21 Edw. I, seem to favour a conjecture that they might be extracted, by command of those judges, from the records of their predecessors, for the information of their own and future times."27 We have only to add, that a MS. copy of the Custumal is in the library of Lincoln's Inn, in which, as well as in Tottel's edition, some various readings are found, which, however, are 26 Robinson on Gavelkind, p. 307, 3d edit. of little importance, as Mr. Lambard's text has received so satisfactory a confirmation. Having said thus much upon the authenticity of the text of the Custumal, we now proceed to illustrate the Gavelkind customs thus claimed and allowed to the Kentish men. Without entering into a long and unsatisfactory discussion upon the etymology of "Gavelkind," it may suffice to observe that Lambard 28 has two conjectures of the reason of this name. "The one grounded upon the nature of the descent and inheritaunce of the lands themselves: the other founded upon the manner of the dutie and services that they yeelde." In this distinction he is followed by Robinson.29 If, therefore, we have regard to the nature of the lands in point of discent, then Gavelkind is derived from the Saxon Lp eal cyn, because the lands descend to all the male children equally, and not to the eldest son by right of primogeniture. But if we have respect to the rent and services issuing out of lands of Gavelkind tenure, then the derivation of the word is from Larol, which in Saxon signifies rent or payment, and therefore called Lapol-cynd, Gavelkind, or land yielding rent. Somner has very learnedly established this latter to be the correct etymology of the word. Lord Coke,30 however, adopts the former.31 28 Perambulation of Kent, p. 528. 29 On Gavelkind, p. 1. 30 Coke on Littleton, 1 Inst. 140, a. 31 This, amongst innumerable other instances, shows the fallacy of attempting to ascertain the nature and quality of things from mere etymology. Upon no other subject has so much learned ink been so unnecessarily wasted. Antiquaries too frequently indulge in these fruitless speculations. Somner, from a mere fanciful etymology, mistook, by 1000 years, the age of the antient British earthworks at Canterbury. (See my paper "On the Celtic or antient British Mound, called the Dane John Hill at Canterbury," published in the Gloucester Congress volume of the Brit. Arch. Association, p. 136-148.) Other instances occur in the numerous speculations on the etymology of Bpetpalda,' which for the most part are merely conjectural, and destitute of all historical authority. As to the antiquity of the Kentish customs, we have already remarked (p. 57) that they are coeval with the foundation of the monarchy. But as their origin and history have not been handed down to us in any written record of earlier date than the thirteenth century, we can only establish that fact by an induction of such particulars as our antient historians have transmitted to us. Bede, in his account of the government of the antient Saxons on the Continent, says: "They have no king, but many chiefs set over their people, who, when war presses, draw lots equally, and whomsoever the chance points out, they all follow as leader, and obey during the war; the war concluded, all the chiefs become again of equal power.32 Accordingly we find, that when the Jutish tribe of the great Saxon confederacy made their first descent on Britain (A.D. 449), they arrived under the command of two chieftains. or war-kings, Hengist and Horsa. From the continued state of warfare in which they were engaged, they had no opportunity of laying down or surrendering their power into the hands of the people; hence, from the necessity of the case, the royal authority became permanently established, and hereditary in Hengist and his descendants. It is useless to speculate (in the absence of all historical evidence) upon the prerogatives, authority, or attributes of the Saxon monarch; but from what we learn when we arrive. at the dawn of authentic history, we may infer that the royal authority was circumscribed within narrow limits, and was, in all the more important affairs of state, exercised with the advice and consent of the Picena-zemot,' or assembly of the wise men--the chiefs, ethelings, and thanes. If we may give credit to Lord Coke, we learn that, "by the laws and ordinances of antient kings, and especially of King 32 Bede, Hist. Eccl. v, c. 10. Alfred, the first kings of this realm had all the lands of England in demeane, and 'les grands manoirs et royalties' they reserved to themselves, and of the remnant they, for the defence of the realme, enfeoffed the barons of the realme with such jurisdiction as the court-baron now hath, and instituted the freeholders to be judges of the court-baron." 33 Whether this relates to a later period of our history, when the various kingdoms of the Saxon Octarchy had been reduced by the West Saxon monarchs, and consolidated into one sole monarchy, or whether it be also applicable to the various Saxon kingdoms in their original, separate, and independent state, can only be matter of conjecture. We may, however, safely infer, that in the Saxon or Jutish kingdom of Kent, the prerogatives, attributes, and authority of the king—the rights and privileges of the thanes or nobles -the liberties and franchises of the people-the tenure of land, with the services and obligations incident thereto, and the territorial division of that kingdom into lordships and manors, and (for the administration of justice and the public defence) into lathes, hundreds, boroughs, vills, and townships, arose by silent and imperceptible degrees, as the Jutish conquerors advanced in expelling or subjugating the antient inhabitants, in conquering and possessing their lands, and in reducing the country into a state of peaceful occupation and inhabitancy. This appears to have been the state of the kingdom of Kent at the earliest dawn of authentic history, or, to speak more accurately, we have no evidence of the existence or establishment of any earlier or more simple system of government.34 33 Co., 1 Inst. 58, b. 34 It will be perceived that we reject as fanciful and purely imaginative the division of lands by lot amongst the Saxon invaders, and the equally fanciful territorial division of the mark (eapce). It may, perhaps, be objected to this view of the minor subdivisions of the Jutish kingdom of Kent, that K. Alfred first divided the whole realm into shires, hundreds, and tithings, and therefore that the subdivision of Kent in the manner we have mentioned could not have existed previous to the reign of that illustrious monarch. We, however, incline to think that this notion of the division of the realm by K. Alfred is a mere popular error, and that it has been attributed to him merely because its origin is lost in the dark shades and impenetrable mists of antiquity. We have, however, some testimony (although of a negative character) in support of our view of the subject. The laws and institutes, both civil and ecclesiastical, of our A.-Saxon ancestors, from the time of Ethelbert, the first Christian king of Kent, to the Norman Conquest, are still preserved to us.35 Those of K. Alfred make no mention of any such important transaction; 36 nor in the whole series of the Saxon laws do we find any notice of any such legislative division of the Saxon kingdoms, either in their separate or consolidated state. And it And it may be further remarked, that if any such territorial divisions had been created by K. Alfred, or by any other monarch of "all England," and by his Pitena-zemote (assembly of the wise men), we should at least find each of those divisions and subdivisions designated and described by one and the same name throughout the whole kingdom; for we cannot readily imagine, that if the monarch and his Pirena-zemote (or Parliament) had assembled to divide the realm into certain divisions and subdivisions which had never before existed, they could by any law, ordinance, statute, or decree have imposed different 35 The latest and most valuable edition of the A.-Saxon laws is that published by the Record Commission (A.D. MDCCCXL) intituled Ancient Laws and Institutes of England, a compilation of inestimable value to the historian and the antiquary. 36 See notice of K. Ælfred's Laws, post, sec. xxi of the Analysis. |