their liberties, shall not usurp upon the rights and prerogatives of the crown. A few words will suffice to convey to the reader the nature and meaning of the terms escheat and escheator. According to Lord Coke "Escheata is derived of the word eschier quod est accidere, for an escheat is a casuall profit quod accidit Domino ex eventu, et ex insperato, which hapneth to the Lord by chance, and unlooked for. And of this word eschaeta, cometh eschaetor, an escheator, so called because his office is to enquire of all casuall profits, and them to seise into the king's hands, that the same may be answered to the king." 64 Again : Eschaetor, an ancient officer so called, because his office is properly to look to escheats, wardships, and other casualties belonging to the crowne. In ancient time there were but two escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had sub-escheators. But in the raigne of Edward the Second the offices were divided, and several escheators made in every county for life . . . . . . afterwards by statute 14 Edw. III, no escheator might tarry in his office aboue a yeare, and by another statute to be in office but once in three years. The Lord Treasurer nameth him." 65 .. one by attainder, Lands may escheat to the lord two manner of wayes: the other without attainder. By attainder, in three sorts. First, quia suspensus est per collum (because he is executed for felony),66 Secondly, quia abjuravit regnum (because he hath abjured the realm). Thirdly, quia utlagatus est (because he is an outlaw). Without attainder, as if the tenant dies without heir." (Lord Co. 1 Inst. 92.) We thus see the reasonableness of this restraint upon the Kentish men; the king, by his lord treasurer, appointed the escheator, because the escheats and profits of the office appertained to the crown, or to the grantees of the crown. 64 Co. Litt., 1 Inst., 92 b. 65 Co. Litt., 1 Inst., 13 b. 66 The reader will, however, observe (post Sec. VII), that Gavelkind lands are not forfeitable, do not escheat, for felony. SEC. V. "Et quilz pusent lour terres et lours tenementz doner et vender, sauz conge demauder a lour seignerages: sauues a seignorages les rentz e les seruices dues des mesmes le tenementz. Et que touz, e chescun, pusent per Bre le roy, ou per pleynt pleder pur lour droit purchaser, auxi bien de lour seignerages, come des autres gentz. With this section of the Custumal properly commences the tenure of Gavelkind; and it may be convenient, in this place, to present to the reader a general tabular view of the leading distinctions between the tenure of lands in Gavelkind and at Common Law. TABLE. By the Common Law of Kent. (GAVELKIND.) I. DESCENT.-To all the sons, or heirs male, equally. II. ALIENATION. - By an infant heir, or tenant in Gavelkind, at the age of fifteen years. III. DowER.—The widow is endowed of a moiety of her deceased husband's Gavelkind lands during her life, if she so long continue a widow, and unmarried; but this estate ceases upon a second marriage. IV. CURTESY.-The surviving husband has one moiety of his deceased wife's Gavelkind lands (whether there be issue of the marriage or not) during his life, if he so long continue a widower, and unmarried. But this estate ceases upon a second marriage. By the Common Law of I. DESCENT. To the eldest son, or II. ALIENATION.-At the age of twenty-one years. III. DOWER.-The widow is endowed of one-third part of her deceased husband's lands during her life. IV. CURTESY.-The surviving husband takes the whole of his deceased wife's lands for his life, if there has been issue of the marriage; otherwise he takes nothing. V. WILL.-Gavelkind lands have always been devisable by will. V. WILL.-At common law, lands not generally devisable by will till the statutes 32 Hen. VIII and 34 and 35 Hen. VIII, whereby two-thirds of lands in chivalry, and the whole of the socage lands, become devisable. And by stat. 12 Car. II military tenures were converted into common socage, so that the whole became devisable by will. From the words of this section of the Custumal we learn that Gavelkind men held their lands for an estate of freehold and inheritance; that they held of superior lords by certain rents and services; and that notwithstanding such tenure, they might dispose of or sell their lands without any restraint or control of their lords, subject however, and merely reserving to their lords, the accustomed rents and services to which the lands were already liable; and that they might enforce their rights, as well against their lords as against all other persons, by the usual process of law. This gives rise to an inquiry of great historical interest-an inquiry into the system of tenures as established in the Jutish kingdom of Kent; and this naturally divides itself into two periods:-First, as to the Saxon tenures of land, from the time of Hengist to the introduction of Christianity by St. Augustine. Second, as to those tenures after the introduction of Christianity. As to the first period. No direct evidence having been handed down to us by written records, we must observe, that "When the Anglo-Saxons established themselves in Britain, a complete revolution in the possession of landed property must have taken place, so far as it concerns the persons of the proprietors. They succeeded by the sword. All the chieftains of the Octarchy had many years of warfare, before they could extort the occupation of the country. In such fierce assaults, and such desperate resistance, the largest part of the proprietary body of the Britons must have perished." 67 In our extracts from the Saxon Chronicle (ante p. 23) the reader will find a summary account of those contests which occurred in Kent. .... "What system of tenures the Anglo-Saxon conquerors established will be best known from the language of their grants. . . . . We find the land distinguished in their laws by various epithets. We there meet with Boc-lande, Gafole-land, Folc-land, Bisceopa-land, Thegnes-land, Neat-land, and Friganearthe. "The proprietors of land are called Dryhtne, Hlaforde, Agende, or Landhlaforde, and Land-Agende. "The occupiers of land were named Ceorl, Geneat, Landes-man, Tunesman, and such like." 68 No written Saxon laws, or grants of a date anterior to the introduction of Christianity by St. Augustine, have been handed down to us; nor is it probable that any such ever existed, inasmuch as the Saxon invaders, though probably possessed of a Runic alphabet, do not appear to have applied it to such purposes. 69 We have already observed (ante, p. 54) that "in the 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.... arose by silent and imperceptible degrees, as the Jutish conquerors advanced in expelling or subjugating the 67 Turner's Anglo-Saxons, vol. ii, book ix, chap. 2, p. 168, 4to. 68 Ibid. 69 On the introduction of Christianity, the Runic alphabet was for the most part laid aside, and the Roman letters adopted, though the Runic or Saxon letters þ, (th), and p (w) were retained. (See Note, ante, p. 33.) antient inhabitants, in conquering and possessing their lands, and in reducing the country into a state of peaceful occupation and inhabitancy." The supposed division of lands by lot, and the territorial division of the mark (Meance), we have already rejected as fanciful and purely imaginative. Mr. Turner says According to the laws of the Britons in Wales, in the ninth century, all the land of the kingdom was declared to belong to the king; and we may safely believe that the same law prevailed while the Britons occupied the whole island. It is highly probable that the Saxon war-cyning succeeded to all the rights of the monarch he dispossessed, and in rewarding his companions and warriors with the division of the spoil, it can be as little doubted that from those to whom the cyning, or the witena, gave the lands of the British landholders, a certain portion of military service was exacted, in order to maintain the conquest they had achieved." 70 The Second period, or history of the Saxon tenures after the introduction of Christianity. We now arrive within the domain of written and authentic history, and we trust that, from the curious historical records which we shall examine, we may not only satisfactorily establish the propositions which we have ventured to offer under the first period, but that we shall also conduct the reader to the primæval fountains whence has issued that copious stream of Anglo-Saxon free tenures, which for fourteen centuries has fertilised and enriched the privileged soil of Kent. That the reader may the better understand the nature of the Saxon tenures, we lay before him the account of Bóc-land and Folc-land, from the glossary appended to the Ancient Laws and Institutes of England." "1 70 Turner's Anglo-Saxons, ibid. p. 180. 71 Published by the Record Commission, A.D. MDCCCXL. The most learned editor of this invaluable compilation says-"The above extracts are from An Inquiry into the Rise and Growth of the Royal Prerogative in England, by John Allen, 8vo, 1830, p. 143-151. See also Kemble's Cod. Diplom., Introd. p. ciii-cvi." |