TO begin with the first : ( the true Etymologie and derivation of the name , &c. ) By the common and received opinion of these dayes , obvious and easie to be found , both in the writings and discourses of Kentish-men and others , this Custome ( as commonly called ) owes its name and original to the nature of the land in point of descent . To consult ( for instance ) a few of the multitude of printed opinions looking that way , collected from the most eminent of our modern and late Writers , as well Antiquaries as Lawyers , and intending to steer a retrograde course in this re-search , I shall begin with one of the latest , Sir Edward Coke , who in his Notes , or Illustrations upon Littleton , tit . Villenage , Sect. 210. verb. en Gavelkinde , glosseth the text thus : Gave all kynd : for ( saith he ) this Custome giveth to all the sons alike . Not long before him , another learned Sir Hen. Spelman , in voce ▪ Gaveletum . Knight and famous Antiquary , taking the word to expound in his Glossary of antiquated words , saith , that it is termed Gavelkynd , either , Quasi debitum vel tributum soboli , pueris , generi , i. e. as it were of right belonging and given ( intimated in the two first syllables , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : ) to the issue , children , or kynd , ( signified by the last , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : ) Or else secondly ( saith he ) from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. given to all the next in kindred . Verstegan ( to ascend in our g●adation one step higher ) c●nsureth the word of corruption , saying , that it is corruptly termed Gavelkynd , for Give all kynd , which after him is as much to say , as , Give each child his part . From whom Mr. Cambden differs Britannia , in Kent . as little in time , as in opinion , when he saith it is called Gavelkynd , that is , saith he , give all kynne . Before all these , Mr. Lambard , ( the first that undertook the etymologie , and whom , beside the former , * * The English Lawyer , p. 73. Judge Dodderidge , * * Interpreter , in voce . Dr. Cowell , the Authour of the New Terms of Law , and many more , longo agmine , a●e known to follow ) in his explication of Saxon words prefixed to his Archaion , verb. Terra ex scripto , is clear for the derivation of the word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : Credo ( saith he ) ut terra illa Gavelkyn , quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , idest , omnibus cognatione proximis data , dicatur . But afterwards , ( as if upon second thoughts altered in his Perambul . p. 528. opinion ) he coupleth this derivation with a second , and so at length is found to share his opinion of the words original between two conjectures , grounded both upon the nature of the land ; the one in point of Descent , the other of Rent and Services . In reference to the former of which , he saith , that , Therefore the land was called either Gavelkyn , in meaning , give all kyn , because it was given to all the next in one line of kinred ; or , give all kynd , that is , to all the male children : for kind ( saith he ) in Dutch signifieth yet a male child . And in relation to the latter , he saith , that , It is well known , that as Knights-Service land required the presence of the Tenant in warfare , and battell abroad : so this land ( being of Socage tenure ) commanded his attendance at the plough , and other the Lords affairs of husbandry at home : the one by manhood defending the Lords life and person , the other by industry maintaining with rent , corn and victual his estate and family . This rent ( as there he adds ) ni a customary payment of works , the Saxons called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and thereof ( as I think ) they named the land that yeeldod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is to say , Land letten for rent , or of the kind to yeild rent , &c. The Authour ( I confesse ) modestly leaves it free to the Reader to receive either of these conjectures , or to refuse both , as it shall best like him : but the former of the two , being primâ facie , of a more plausible sound and allusion than the other , ( an advantage very considerable with most men , whose guidance notwithstanding is not alwayes to be followed : ) and that having gotten the start of her fellow in time , hath not fail'd to keep it ever since , having proved the more acceptable of the twain , and by this time found so many followers , and those , like the first Authour , of so great credit , as that whosoever shall contradict the one , or dispute the other , can do neither without exceeding prejudice ; so difficult a lesson it is with some to unlearn , a a See the addition to Dr. Casaubons Treatise of Use and Custome . whose minds are as hardly weaned from an opinion which their fancie hath once approved , as others are from an habit or a custome , which if inveterate and long ▪ setled , though ▪ corrupt and vicious , is very hardly left off , and laid aside . Yet , as the Common Law b b See Sir Ed. Coke , Instit. part. 1. fol. 115. a. determines of a Custome , that if the rise , the original thereof can so be traced , as it can appear that it first began within time of memory , it is no Custome , nor shall obtain or prevail as a Custome ; so in case , by tracing the present derivation to the well-head , I shall shew , together with the time , the errour of its first original , not to be salv'd by long tract of time , ( for , Quod ab initio non ff ▪ de Reg. Jur. l. quod ab initio . valuit , tractu temporis non convalescit : ) I trust I shall not fail , nor fall short of what mine endeavours drive at in this matter ; the weaning ( I mean ) of sober and judicious minds from an opinion so erroneous and ungrounded as this , I doubt not , upon trial , shall appear to be , though thus long continued , and in it self specious and plausible enough . However , being convinced in mine own judgement of the errour , that I may not seem to swallow it for company , to the prejudice of truth , for that ( I say ) if for no other reason , I have resolved to protest against it : and yet , not to seem singularly affected without a cause , I shall not do it by a bare denial or dissent , as he that thought it sufficient for Bellarmines confutation to give him the lie , but by representing withall my inducements thereunto , I hope to put the matter out of doubt , that I have studied the Readers satisfaction herein as well ●s my own , by a learned mans c c Duarenus , Commen● ▪ in Tit. de Pactis , p. 49. ● . example , who●e words in a like case , as very apposite in this , I shall here borrow for the close of my Apologie : Etsi m● non lateat , ( saith he ) quàm lubrica , plenaque discrim●nis res sit , quae per tot secula , tot homines eruditi uno consens● proba●unt , rejicere velle , rationes tamen eas in medium adducere visum est , quibus adductis hanc interpretationem damnare ausus sum . Nor is this ( I take it ) magno conatu nugas agere ; the discovery and refutation of popular errours having been a task for many worthy pens , in cases of as small concerment as this perhaps may seem to be ▪ To the matter then .

Whether the name of Gavelkynd was at first imposed with , or in respect to the nature of the land , in point of descent , or not , is indeed the matter in question . The common opinion ( I confesse ) affirms it , wherewith joyning issue in the negative , I shall endeavour to refute it by a double proposition ; one negative , shewing that this is a wrong , and mistaken ; the other positive , or affirmative , declaring what is the right and genuine construction of the term .

As for the former , though it carry with it a seeming allusion to Gavelkynd in sound , yet if we look advisedly into the true nature of it , we may , and peradventure must , conclude the etymologie from Giveall cyn , Give-all-kynd , or the like , unnatural at the least , and far fetcht , if not violently forc'd . For first , admitting Kind to signifie a male-child in the Dutch or Belgick tongue , as it doth not more than a female , being a word common to children of either Sex ( Knecht indeed with them , as Cniht with our Ancestours , the English-Saxons , is of that d d See Kilianus Diction . verb. Knecht . signification : ) yet is not this kind of land so restrained in point of descent onely to the males , but that ( as in the case of land descendible at the Common Law ) the females in their default , that is , where the males are wanting , are capable of succession to it , and in the same way of partition with the males . Nay , is any of the sons dead in the fathers life time , leaving a daughter behind him , such daughter shall divide with her uncles in this Lamb. Peramb . p. 547. land . What then ? shall we admit kynd to signifie the issue , be it male or female ? as indeed it doth either , coming of the Saxon , or old English , cennan , or Vid. Dictionar . nostr. Anglo-Sax . i● voc● . cennian , parere , to bring forth , whence with them the word or participle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for the first-begotten , or first-born , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for the onely begotten , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , terrigena , one that is born , or bred of the earth ; yet is not this land so tied to the issue , but that in default thereof , i. e. where that is wanting , such as be in the transversal or collateral line ( as in other lands descendible at the Common Law ) may and do inherit it : as ( for instance ) when one brother dieth without issue , all the other brethren may and do inherit , as doth their respective issue too , in case of their default , jure repraesentationis , but with this restriction in the nephews case succeeding with their uncle , viz. that the descent is then in stirpes , not in capita . Neverthelesse , it goeth not as the Irish e e Davies Reports , Le I●ish Cust de Gavelkind , fol. 49. Gavelkynd , to all the males of the same linage , ( for in this , as in other inheritances , propinquior excludit f f ●racton de acq●iren . rer ▪ dominio , fol. ●4 a. propinquum ) nor yet neither to all the next in one line of kinred , as they pretend that are for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , taking cyn to signifie kindred , as indeed it doth , for then brothers and sisters both , being alike neer in degree , should equally inherit , ( a thing it seems allowed by the old German custome , witnesse what we have from g g De morib . Germanor . Tacitus ; Haeredes successoresque sui cuique liberi , &c. not restraining the succession to the male ▪ issue , as neither doth the h h l. inter filios . l. famil . hercis . l. si quis à liberis . ●f . de l●b . agnos● . l. si major . in si . l. communi divid . Civil Law : ) whereas we know , that as by the i i Lib. 1. Feud . tit 6. Parag. 2. & ibi Ho●om . Feudal Customes abroad , where males are , the females are excluded from succession , so by the Common Law of k k Li. Hen. 1. c. 70. Glanvil . li. 7. c. 3. Bracton , fol 65. a. England , women ( or females ) shall not partake with males , according to that rule laid down in the Statute called Praerogativa Regis , cap. 16. Foeminae non participabunt cum masculis , which ( by the way ) is understood onely of such as are in equal degree . But doth ●yn or kynd here intend and denote a mans issue , the Gavelkynders children ? What may we say then to a conveyance of land in Gavelkynd to a Guild , or Corporation , aggregate of many , suppose an Hospital ; ( as an instance of that nature shall be produced l l And another in the Appendix , Scriptur● 9 by and by : ) they are a dead hand , how then is the etymologie in that case justified ? Where 's the kynd , the parties issue here , to make good the derivation ? But since , by occasion , mention is made of such a gift , or conveyance , to strangers from the proper issue or heirs , let me thus far further adde , that in case it be called Gavelkynd , from debitum vel tributum soboli , i. e. due , or given to the issue , as some are of opinion , how comes it then to passe , that , as before the Statute of Wills , Gavelkynd ▪ land might by deed , or other lawful conveyance ( and that Domin● , in this case inconsulto , and invito too , contrary to the nature of what with the Feudists is properly termed m m See Vulteius , de Feud . li. 1. c 8. nu. 37. p. 341. Fe● : ) be freely given , or sold away from the heir by the custom to a meer stranger , ( contrary to the old Common Law of n n Glanvil . lib. 7. cap. 1. England , except in some few cases , as in Frankalmoigne , or in marriage with a mans daughter , a reasonable part might be given , with some limitations and distinctions between Land of Inheritance and Purchase : ) as now since the Statute of Wills , ( if not before , as some of late seek to perswade us , a matter which I shall reserve o o See the ● Proposition . al●iori indagini : ) it may be , and daily is by devise of will and testament ; How is the next heirs right to this land preserved , when there is that freedome of giving , or devising it away ? Or how can this liberty & that etymologie consist ? Yet further , doth not Mr. Lambard somewhere p p Perambu● . p. 544 ▪ say , that no Gavelkynd partition could be challenged , but onely where the custome of division had prevailed , and that Gavelkynd was not tried by the manner of Socage-services , but onely by the touch of some former partition ? If ●o , no land then could properly be called Gavelkynd , wherein this custome of partition had not yet obteined : what shall then be thought of those new created Tenures in Gavelkynd , whereof until the Statute of q q Anno 18 ▪ Edw. 1. Quia emptores terrarum , examples are very obvious and frequent in the old Records both of the Cathedral at Canterbury , and of the neighbour Abbey of St. Augustines , and elswhere , affording many ancient grants of land in Gavelkynd ? to what original shall the name there be referred ? to any customable partition ? nothing lesse : for where can that be found in Gavelkynd-land of novel Tenure , for want of that competencie of precursory time of them necessarily presupposed ( to frame the custome in ) who conceive the name taken from such accustomable partition ? Moreover , if partition were the thing that gave name to Gavelkynd , then should all partible land wheresoever be so called : but there is in parts abroad ( out of Kent ) partible land not called Gavelkynd . Ergo , &c. For the assumption see the Stat. 32. Hen. 8. cap. 29. purposely made to change the customary descent of the land of Osweldbeck Soke or Lordship in Nottingham-shire . And what doth r r Lib. 3. ●●l. 374. a. Bracton intimate lesse in his sicut de Gavelkynd , vel alibi ubi terra ●st partibbilis ratione terrae ? Adde hereunto ▪ that the word , as to the main part of it ▪ Gavel , frequently occurs in the old records of some manours out of Kent , sometimes simply , but for the most in composition ; for example , Gavel-erth , Gavelate , Gavel-lond , Gavel-man , Gavel-swine , Gavel-wood , Gavel-rod , &c. ( of which more anon . ) And shall the same thing , ( contrary to that rule of Law , ● . 1. ff. De rerum permutatione ) diverso jure censeri ? For I suppose none will render it there ( being out of Kent , and where no Gavelkynd partition taketh place ) Gife-eal ▪ Nor will this derivation any better stand with Gavel , where it helps to the composition of some words here used in Kent , in former times at least , besides that of Gavelkynd , such as are all or most part of those afore-remembred , to which I may adde Gavel-rip , Gavel-ote , Gavel-sester , Gavel-bred , Gavel-bord , Gavel-timber , Gavel-corn , Gavel-re●ter , &c. whereof also I shall intreat further by and by . Is it then ( lastly ) to be supposed ▪ that the lands meer descent in this kind to all the heirs alike , supposing a plurality of heirs , was all the regard those Ancestours of ours had to sway and regulate their judgement by , to whom the name , the term , doth owe its first original ? Was that in probability ground enough to satisfie them of the congruity and sutablenesse of the name to and with the nature of the thing named , as names we know should † † Conveniunt rebus nomin● saepe suis . be ? Vix credo . I doubt it for my part .

In brief then , to recollect what hath been said : 1. If females are capable of this succession as well as males , where the male issue faileth . 2. If collateral kinred are capable thereof as well as those in the descendent line , where such heirs are wanting , ( in both which kinds Gavelkynd land differs not from that at the Common Law : ) 3. If Corporations may hold land in Gavelkynd . 4. If such land may be passed away to meer strangers from the right heirs . 5. If none may properly be called Gavelkynd-land , where an accustomable partition hath not made way for it . 6. If there be partible land elswhere ( out of Kent ) that is not called Gavelkynd . 7. If Gavel ( the fore-part of the word ) found in some Records of land out of Kent , and of others in Kent , will not bear the derivation of it from Gife-eal , without absurdity . 8. And lastly , if names are to be imposed with respect to the nature of what is s s Nominae cum re consentiant , Plat● de Sapient . named , then is Gavelkynd , after these mens premised derivation , in some sort a very scant , narrow , and partial , in other a most incongruous and improper term to expresse the nature of the land by . Surely , there was somewhat more peculiar to Gavelkynd-land , and of more note and eminencie in it , better serving to distinguish it from other kind of land , than this derivation of theirs seems to intimate , and which first gave occasion to the imposition of that name upon it , which leads me to my other , the positive , or affirmative proposition , asserting the true sense and construction of the term , and shewing whence it was at first imposed , and afterwards continued .

Wherein I must confesse , Mr. Lambard was as happy Gafol , what signifying . to go right in the latter of his two conjectures , as he was before unluckie to misse of the right in his former , yet in this passively unhappy though , that the former , through the advantages afore-mentioned , wholly took , and was accepted of all , whilest the latter was received and embraced of none : but no great marvel , since , whilest some , through ignorance could not judge of , others haply for company , would not question so plausible a derivation . But to the purpose .

To such as are any thing vers'd ▪ in Saxon monuments , Gafol is a word very obvious , but varied sometimes in the Dialect , as being written now 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , anon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , here 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . I shall give you a few instances where it occurrs , and in what sense . Tribute mentioned in the 17 of St. Matthews Gospel , verses 24 , and 25 , as also in the 22 of the same Evangelist , verses 17 & 19 , is in the Saxon Translation of the Gospels , turned 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . In the 25 chapter of the same Gospel , at the 27 verse , it serveth to expresse what there in our modern English Translation is called , in some books , advantage , in other , usury , agreeable to that in the Saxon Psalter , Psal. 54. vers. 11. where usura in the Latine , in the marginal version or reading of the word , is rendred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 occurring in the first of King Withreds Laws of Sir Henry Spelmans Edition , in the first Volume of the Councils , pag. 194. is of that ▪ learned Knight expounded to us by Redditus vel Pensiones , as it is again in his Latine Version of Pope Agatho's decretal Epistle , pag. 164. of the same Councils , by Redditus . In an old Sanction of King Edgars , recited by Mr. Selden in his Notes upon Aedmerus , pag. 153. what is there in the Latine read solitus census , in the Interlineary Saxon Version we find rendered there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . Hereunto I might adde heaps of instances taken from the Saxon Laws , the Mare clausum ▪ and elswhere , but I forbear to exspatiate : and to be short , Gafol is a word , which , as Gablum in Doomsday-book , the skilful in the Saxon tongue , with Sir Hen. Spelman elswhere , turn by what Gabella is expounded Glossar . verb. Gabell● . abroad , viz. Vectigal , Portorium , Tributum , Exactio , Census , in Latine , but in English , with Verstegan , Tribute , Tax , or Custome , to which with s s Peramb . p. 529. Mr. Lambard , and t t Instit. p. 1. fol. 142. 2. Sr. Edw. Coke , let me adde , Rent : witnesse , besides the former quotations , what occurrs in an ancient will or deed u u In Archiv . Eccles. Cant. of one Athelwird , the Donor of certain land at Ickham in Kent to the Cathedral at Canterbury , in the year of mans redemption 958. where you may read : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 † † fortè he●e● ▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. And anon after again : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. The former of which passages , under favour of the skilful in that language , I shall render thus in our modern English : After his dayes , ( or death ) Eadrith , if he live , shall enjoy ( or use ) it , yeilding that rent which is imposed on it ▪ that is , v. pounds , and every year ( or yearly ) one dayes farm ( or victual ) unto the Covent , that is , xl ( measures called ) Sextaries of ale , Conteining four gallons , so Fleta lib. 2. cap. 12. &c. And the latter thus : With the same ( or like ) Rent that herein is appointed . Let me adde what in another like Record , both for time and place , occurrs thus ▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . That is , And after both their dayes ( or deaths ) let Eadsith the Arch-Bishop , if he survive them , have ( or take ) these lands , or else his Successour for the time being , unlesse some friend of theirs , by ( or with ) the Arch-Bishops favour , may continue to hold that land at ( or upon ) the accustomed rent , ur upon what other contract ( or condition ) may be had ( or made ) with the Arch-Bishop then living , ( or , for the time being . ) I shall adde but one instance more from the grant of Bocking ( a known place in Essex ) to the same Cathedral ▪ by one Ethelrich , in the year of Christ 997. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . That is : And I also give those two hides ( of land ) that Eadrith renteth ( or hireth ) yearly for half a pound . So that to me it seems clear , that ponere terram ad gablum , is as much as to hire , or let out land by or for rent or farm , and by consequence , terra ad gablum posita , taken in its proper and genuine acception , is land hired , or letten out to farm , or for rent . In the latitude of the word it comprehends besides ▪ all censual , or tributary land , as also what we call customary land , ( in that sense wherein Consuetudines , Customes , denote x x Coke , Instit. p. 2. p. 58. Services ) and so takes in all Rent-service land , which with our Saxon Ancestours , who called the rent or service paid or done for such land , y y Spelm. Gloss. in voce ▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , was , by a transposition of the syllables , called and known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or the like : z z Lamb. Archaion , fol. 45. cap. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. e. Except the Churle ( or Countrey-man ) that occupieth censual land , as one would say now , Except the Country Fermor , or the like . He seems by this to be properly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. one that had no land of his own , such a one as had , being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. terrae propriet●rius , a landed man , as the word is ( I take it ) to be rendred , not Viator , a way-faring man , or the like , as some a a Spelm. Gloss. in voce . have guessed . But to keep us to our Gafol , within and under which term and notion , not onely the generality of rent and customary , whether payments or services , was comprehended and comprised , simply ; but what we at this day call Rent-corn , Rent-honey , Rent-barley , and the like , the special and particular rents and services , I mean , by the custome of some manors yeilded by the Tenants to the Lords thereof , though now for the most part turned into moneys , were in elder times , in composition , called Corn-gavel , Hunig-gavel , Bere-gafol , &c. Without impertinencie I hope , I shall here present the Reader with a list of as many of them , as with much content to my self , I have ransacked old Records to find out for this purpose , with an assay of mine own at their several expositions , and they are divisible into two sorts , the one beginning , the other ending with Gavel . Both of them follow .