John de Berwyke and the Consuetudines Kancie

JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE* F. HULL, B.A., Ph.D., D.Litt., F.R.Hist.S. I It is now nearly twenty-two years since I first became interested in that strange collection of Kentish custom called Consuetudines Kancie. In 1958 the deposit of the borough records of Queenborough, the small Sheppey port founded by Edward III, led to the receipt of the Statute Book 1 , first brought to the attention of Kentish Antiquaries by the Rev. C.E. Woodruff in Archaeologia Cantiana in 18972 • This volume consists primarily of copies of the statutes at large as they existed not later than 1325 and among these the custumal finds a place. As those who have seen the recently published Miscellany volume will be aware, this same book is significant for yet other reasons, but it was the copy of the custumal of Kent which first attracted my attention. As a result, some may recall that I wrote up my findings for Arch. Cant. in that year, postulating a thesis that there might well be two basic versions, one essentially ecclesiastical in origin and the other acceptable in common law. 3 For some time other interests predominated and despite repeated requests that I should produce a definitive version, I declined, partly because I felt the task would be impossible and also because I felt insufficiently expert in medieval terms. Nonetheless the desire to re-open the subject remained and in 1970, faced with plans for a series of lectures at Sevenoaks I re-examined the story surrounding this document and in particular the association of the custumal with the year 1293. Now again, ten years later, I would wish to share with you once more my thoughts regarding this unique example of a *Delivered at the Society's Annual General Meeting in Canterbury on 17th May, 1980 I K.A.O.,Qb/AZ I 2 Arch. Cant., xxii (1897), 169-88 'Arch. Cant., lxxii (1958), 148-59 1 F. HULL purely local body of lore being accepted as part of the law of England. For the sake of those for whom this introduction has only created worse confusion, the Custumal of Kent, as we know it, is an AngloFrench document consisting of some 37 clauses essentially describing the local customs controlling gavelkind, the form of partible inheritance found in Kent in place both of primogeniture and copyhold tenure, the contents of which in terms of land tenure were discussed in detail by Thomas Robinson in the eighteenth century and a copy and translation of which Lambarde appended to his Perambulation. 4 The discussion today, however, centres not so much on the detail of local custom as on origins, on problems associated with the codification of 1293 and on the interpretation of the strange jingles in a totally bastard English which occur within the text itself. As is common with medieval texts there are many copies and these, as is to be expected, vary in wording and occasionally in substance. I have personally examined eight versions and this lecture is based on the results of that perusal. The custumal was also published in the edition of Public General Statutes issued in 1810 as one of a series of 'Acts' which either ante-date the model parliament of 1295 or, at least, are of uncertain date. But the appearance of the Consuetudines in that setting does little to establish its authority, for throughout history its authenticity and its place among the statutes of the realm have been challenged. During the seventeenth century, for example, while the great common lawyer Sir Edward Coke upheld the custumal, Spelman in his Treatise on Feuds was utterly opposed to its acceptance. 5 Understandably the fact that William Lambarde published the custumal in full and that he referred to 'a faire written roll' of the reign of Edward I belonging to Baron Hales (another lawyer) as his source, gave his version and its content a certain authority over all others. This indeed was the version used in 1810 for the statutes at large, and it was this fact which first set me probing deeper, for the Lambarde version is not what was written in the Queenborough Statute Book a bare thirty years after the custumal was reputedly codified. For tradition has it that at the Eyre of Kent held before John de Berwyke in 1293, the customs were approved and that an engrossed charter of Edward I lay in the hands of Sir John de Northwode to that effect. It is this tradition which must be examined for the facts of the case are by no means as simple as tradition would imply. • Robinson, Gave/kind, 1741, and Perambulation of Kent, 1576 5 Quoted by Robinson, op. cit., 278 2 JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE When Robinson prepared his book on Gave/kind in the eighteenth century he was a sound enough scholar not only to compare three of the known texts, but also to search the Public Records for what survived for the Eyre of Kent held in 1293. In this quest he failed to find any evidence for the tradition: John de Berwicke was indeed the justice itinerant concerned, but no reference to the customs appeared. This January, realising that the state of the Public Records over two hundred years ago left something to be desired and also that Robinson could have overlooked some clue not immediately obvious, Miss Kathleen Topping, of my staff, very kindly visited the P.R.O. and covered once more the path of this period some of which have been published by the Seldon Society, none is extant, so far as I am aware, for this particular year. It is, none the less, of passing interest to note that among the records of the town of Faversham there survives a writ, dated 18th October, 1293, and addressed by the King to John de Berewyk and his fellow itinerant justices. 7 In this document the King directs that the barons of Faversham shall be permitted to enjoy all the liberties which they claimed under various charters. While this hardly touches the problem before us, it is an indication of the kind of legal proceedings at the time. Faversham was of course a limb of Dover and as such 'a member of the Cinque Ports. Under a charter of Henry III the portsmen were freed from attendance at Byres, so that it would appear that in 1293 the justices were infringing this privilege and were promptly told to stop doing so. For our purposes, this straw in the wind, indicates that Berewyk and his friends were investigating Kent, trying criminals and perhaps generally examining the state of the county. In this, although direct evidence is missing, it is possible that they examined for common law purposes a body of local custom and thereby accorded it their imprimatur. That the custumal had been considered at the Eyre is further supported by a statement made at another Eyre held in 1313-14, to which we will return later, 8 so that despite Jack of evidence we must accord some credence to the basic tradition. There is, however, another equally strong tradition which also presents difficulties. Not all copies of the custumal refer to John de Berewyk, but the majority do state that a royal charter endorsing the customs, or more correctly enrolling them, dated at Canterbury on the day of St. Alphege (19th April) in the 21st year of Edward I, was handed to Sir John de Northwode of Thurnham for safe keep- • P.R.O., JUST.1/373-7 1 K.A.O., Fa/ZB 46 8 Seldon Society, Eyre of Kent 6 & 7 Edw. II, 1909, pp. xxxv and 18 3 F. HULL ing. Just as nothing apparently can be found in the record of the Eyre, so, too, no trace can be found of this charter. It does not appear in the charter rolls, nor in the patent rolls and, although absence does not of necessity invalidate the story, it is strange that all direct evidence for what happened in 1293 seems to have vanished without trace - we are indeed making bricks without straw. John de Northwode was sheriff in 1291-2 and probably also in 1292-3, though there is some difference of opinion on this point, probably because of the use of deputies. Richard Holworthy, my predecessor, compiled a list of sheriffs of Kent some years ago and in his researches fixed Northwode as sheriff in 1291-2: he then noted Richard de Cumbe as sheriff also in 1291 and John de Burne from 1292 to 1295. Hasted, using regnal years, states that Northwode acted in 20 and 21 Edward I joining de Burne with him in the latter year. 9 If Hasted is correct, then John de Northwode was still in office in April 1293 and would have been the appropriate person, in an ex officio sense, to receive the charter. There is evidence from the following century that the sheriff held some essential records as part of the paraphernalia of office and handed all these, as also the custody of prisoners, to his successor. 1 ° From his standing in the county, as by his office, Northwode would have been the appropriate custodian of this all-important document, for we are still many years from the appointment of a custos rotulorum or of his clerk of the peace. Putting together the two traditions we have the following sequence of events. On 13th April (officially, a fortnight before Easter) the Eyre of Kent opened at Canterbury; on 19th April a charter embodying the customs was sealed and handed to Sir John de Northwode; during the rest of the year the justices continued to hold their judicial proceedings, including many pleas of quo warranto which tested the rights and franchises, mainly tenurial, of land-holders and even of ecclesiastics. Although it would have been wholly appropriate for the justices in Eyre to have examined such a charter as that reputedly held by Northwode, there is no direct evidence that they did so, except for a clause regarding John de Berwyk which appears in some texts only and in a casual reference to the customs made twenty years later. Despite uncertainties there are known copies of the custumal not later in date than 1325, which form traditionally part of the common law of the realm, but the copy used for the Statutes in 1810 is not that which appears in the Queenborough Statute Book of the earlier date. So that just as it 9 Hasted, History of Kent, i, p. lxxxii. ' 0 K.A.O., U601. See Arch. Cant., bod (1957), 206 4 JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE proves impossible to substantiate the 1293 tradition, except in a very circumstantial manner, so, now, the plot thickens as we examine more closely what was traditionally approved. ii A bare twenty years passed before the findings of John de Berewyk were challenged! It seems strange, if the customs already had the force of law, that they were again under scrutiny in 1313, but on the fifth day of the Eyre held in that year (5th July,1313) 'all the Knights of the county, with Sir Bartholomew de Badlesmere at their head' came to the bar of the court, 'there to make formal claim to have the peculiar customs of the county allowed and confirmed'. 11 At this time Sir Esmond Passeley stepped forward as spokesman and the following discourse took place:- Passeley. Sir, these good people are of the County of Kent, and they have divers customs of Gavelkind which differ from the common law, which customs they have enjoyed from time immemorial; and they pray you that you will, if so it please you, confirm these their customs; which customs, indeed, are of such kinds that a man may not bear them all in his mind, and so here we tender to you inscribed on an escrowet some part of these customs; and the rest of them we pray you to allow when any question concerning them shall arise, according to the testimony of those who shall appear before you. Staunton J. Hand us your bill, for we understand that all the customs are mentioned therein. Passeley. That is not so; but we pray you to allow those therein mentioned, and the others when question concerning them shall arise. Staunton J. It is desirable that all of them should be certainly set out; so take back your escrowet, and, after full consideration of the matter, insert therein the whole of your customs; and such of them as we find you have actually enjoyed and as have also been allowed in Eyre, we will freely confirm to you now; for you may rest assured that you shall be shorn of nothing to which you are entitled; and of that you need entertain no doubt. The editor of this Seldon Society volume explains in the introduction what he presumes happened: that Passeley inferred that the customs were not in accord with the common law of the realm and that the Knights of the shire were instructed that the customs must 11 Seldon Society, op. cit. 5 F. HULL be fully and specifically stated. Those allowed in earlier Byres would be confirmed and nothing lost to which they had a fair claim. He then added a footnote to this effect: 'Probably the customs engrossed on the scroll were those which may be found in the Statutes of the Realm, i, p. 223. These Lambarde supposes to have been written in the time of Edward I'. We are back to the 'faire written roll'. If William Lambarde was ready to claim that the roll was of the time of Edward I, that is a claim which deserves study for he was no mean scholar and palaeographer, yet there are reasons for questioning his dating. The custumal which he transcribed is a curious document and is probably one of the most comprehensive versions recorded, and indeed, it includes.one clause regarding the escheator and his rights in Kent. The escheator was the royal officer who took charge of property and goods forfeit to the crown, but the definition of his duties belongs to the early fourteenth century. Whatever the origin of the remainder of the custumal, this clause cannot have been inserted before 1301 - was this the addition referred to in 1313, or was there more to it? I do not propose to discuss in detail the clauses of this document, suffice it to say that they relate almost exclusively to gavelkind. This tenure was by no means peculiar to Kent - it is found more especially along the Celtic fringe, but there is no doubt that it was the customary tenure within this county and had been so from time immemorial. It was a curious hybrid tenure: it claimed to be free in the sense of free from servile duties and certainly no gavelkinder held by copy of court roll. The conveyancing was similar to that applying to free tenures, yet on death a heriot (the best beast or its value in money) was due and this was usually a mark of servility. Its great difference from other tenures lay in the fact that all sons inherited, with the corresponding theory, but not necessarily the practice, that estates were subdivided at death. In Wales, for example, this led to a very uneconomic agrarian pattern and the whole idea of partible inheritance was discouraged, yet, in Kent it was both accepted and acceptable (until at least the sixteenth century), and the whole practice was enshrined in the Consuetudines Kancie, which by some means carried the force of law and even found its way onto the Statute book. It is a much more difficult question to ask who were the gavelkinders? Purity of tenure even by 1300 was already under pressure, moreover some parts of Kent did not attract this tenure and we find no reference to the tenure, as such, in Domesday. In the great survey of 1085 Kent, like the rest, is standardised into villeins, bordars and serfs with no hint that they differ in any material way 6 JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE from the rest of the Anglo-Saxon populace. It was, of course, hardly to be expected that William I would distinguish unusual tenants unless this was directly in his interest, though with the legend of the Green Boughs in mind one might have anticipated otherwise - perhaps, as so often, bureaucracy won! In that fascinating though somewhat suspect study, The Jutes, J.E.A. Joliffe postulated a theory that the gavelkinders were descended from the original free tenants who held the outlands of the post-Saxon-Conquest Kentish or Jutish estates, and it is possible to see in the Knights of the Shire assembling at the Eyre in 1313, the descendants of just such free tenants of earlier centuries, still claiming rights and liberties equally old. The codification of 1293, however amended in 1313, holds our regard not as a new development but as a glimpse into the mists of the Kentish kingdom. iii Kent, as we are all well aware, is a county of unusual terms and administrative features. The lathe, unique to us, appears to pre-date the more usual Saxon hundred; the den, with its upland associations, reminds us of a Kent in which it was the northern half beyond the Ragstone ridge that was populous and the Weald only partially colonised; and the Kentish borh or borough for tithing is yet another peculiarity. Even in Domesday the special defence relationship with the Crown is unique and, again, one has the Swanscombe legend. This story of the ambushing of the Conqueror - with a distinct flavour of Burnham Wood coming to Dunsinane - is so unlike the Conqueror. The men of Romney who dared to complain felt the full force of his brutality, yet the fact remains that Kent as a whole was not 'pacified' for its temerity and that two hundred years later it was still regarded as desirable to authenticate a body of local custom which had survived the Norman conquest. A glance at Hasted suggests that Kent was highly Normanised and thoroughly overburdened with ecclesiastics, yet somehow hardly any French or Norman influence is apparent in our place names and only six out of our four hundred-odd parishes have the appellation of their Norman or medieval lord annexed to the basic name. This is in striking contrast with Essex, for example, and once more underlines the extraordinary vitality of Kentish tradition. This slight digression leads us once more to consider the content of the custumal as codified as late as 1293. Since nothing survives either in the records of John de Berewyke's Eyre, nor is there any trace of the charter held by John de Northwode, one can only examine such texts as are known to survive. At this time I am aware of nine different versions scattered among libraries and record 7 F. HULL offices and there may well be others. An examination of these texts provides a strong indication of two quite distinct traditions, and it becomes the more significant to identify age and provenance. Of the eight 12 which I have compared, five appear to derive from the same 'original', while the other three have elements so different as to suggest an independent origin. Many of the variations are purely verbal and need not concern us but one or two are of much greater significance. An early clause in the custumal, as recorded by five texts reads: 'all the gavelkinders are freemen' - a fact, accepted by the law of the land and illustrated in conveyancing practice. The other three texts prefer: 'all the Kentings are freeman'. Now this is a very different matter: it is not true, for Kentings by 1300 embrace a wide range of society and there is certainly evidence for bondage in Kent as late as the fifteenth century. To proclaim in law that all Kentings are free could be regarded as a most inflammatory statement unless the word 'Kenting' can be more closely defined. We know that in Domesday, Kent had a relatively high percentage of servi, and it has been suggested that these were in fact slaves, the forerunners of an essentially landless labouring class, who are relatively less 'free' than the copyholders of other parts of the realm. Another point of interest is that one version which follows this 'Kentings' tradition omits both John de Berewyk and John de Northwode; instead we find a clause: 'the above are the usages of Gavelkind, which were before the Conquest, at the Conquest, and ever since till now'. 13 Once again our eyes are carried back into the mists of pre-Conquest England. If one analyses the age and provenance of these various copies we find that the two versions published by Robinson in 1741, one a document from the archives of Lincoln's Inn, the other a version published by Tottel in 1536, a copy found among the archives of the City of London and the copy in the Queenborough volume and one of roughly the same date in the British Library, all follow a single basic tradition of a charter in the hands of John de Northwode, refer to gavelkinders being freemen and make no reference to pre-Conquest or later usages. On the other hand a fifteenth-century copy at Canterbury, one of the Harleian MSS. and the copy used by Lambarde refer to Kentings and to the antiquity of the customs. Put another way the first group is unanimous in stating that the customs were embodied in a charter handed to Northwode in April 12 The ninth is the 1810 Statute which follows Lambarde. An abridgement in Latin with comment is ED 2068 in Lambeth Palace Library. ,1, Canterbury Reg. B, f.419, and VCH (Kent), 1932, iii, 325 8 JOHN DE BERWYKE AND TI-IE CONSUETUDINES KANCIE 1293 and also that gavelkinders are free. The second group, while usually referring to Northwode, also inserts John de Berewyke and holds that Kentings are free. These last also refer to the antiquity of the customs. Most striking, if the copy found in Register B at Canterbury is set against that in the Queenborough Statute book we find that the former omits all reference to 1293. It was because of this discrepancy that I suggested in 1958 that there might be a common law form and an 'ecdesiastical' form of the custumal, and no later research has altered this opinion. On this basis, one might conclude that the ecclesiastical form contained an earlier tradition and stemmed from a period when those bearing the appellation 'Kenting' were indeed the freemen of the Kingdom of Kent so that, in origin, the word 'Kenting' was as definable as 'gavelkinder' later became, but that by 1293 the common law required a clearer identification than the word 'Kenting' offerred. That may be so indeed, but it still does not solve all the problems for, excluding the Canterbury text, the references to John de Berwyck occur in those which I have termed ecclesiastical in provenance. In this respect Harleian MS. 667 is particularly interesting: it follows closely the text found at Canterbury and, on palaeographical grounds, it cannot be later than about 1325. Although its actual provenance has been lost, the volume in which it is found is thought to be both monastic and Kentish, so that we now have two versions of approximately the same date, one following what I have termed the Common Law form and the other the ecclesiastical form each making much of the association with 1293. Even more difficult is the fact that Harleian MS. 667 and the 'faire written roll' of Lambarde each refer to John de Berewyke, John de Northwode and to the antiquity of the customs. Indeed Lambarde's version takes material from both traditions, is more expanded than the common law form and also includes that paragraph about escheators which must have been inserted after 1301. It becomes increasingly difficult to accept Lambarde's dating, for this roll shows much evidence of editing in a manner consistent with a later date. Despite difficulties, it seems to be established that some version, perhaps engrossed as a charter, was in the hands of Northwode and that the form accepted at the Eyre in 1293 related this fact. Strangely enough, it is a monastic ( one would like to suggest Rochester copy) which provides the final word, for Harleian 667 concludes with these words: 'And the charter of the King in this particular was placed in the keeping of Sir John de Northwode on the day of St. Alphege in Canterbury in the 21st year of King Edward the son of King Henry at the Eyre of Sir John de Berewyk. This describes the usages and the franchises of Gavelkind and of the gavelkinders in 9 F. HULL Kent which were from before the Conquest.' Only one problem remains; although this sentence embodies all tradition in an acceptable form, it is, legally speaking, impossible for privileges cannot be claimed as from time immemorial and also from the date of a specific grant - one can only assume that if the elusive charter ever appeared it would come in the form of an inspeximus, which would permit the King to confirm ancient rights. The existence of these differing forms makes the discussion in 1313 the more explicable, and it would be interesting and informative to know whether the debate arose because of those two words 'Kenting' and 'gavelkinder'. The common law form firmly follows the latter, while the 'faire written roll' uses the former - was there a difference between what Berewyk accepted and what Northwode held? Is Lambarde's version a revision resulting from the 1313 affair or is it a garbled version deliberately accepting a mixed tradition to which, as in the case of Harleian 667, every conceivable legal support has been added? These are the imponderables which we cannot now determine unless some entirely fresh evidence comes to light or Lambarde's roll is finally identified. iv Nevertheless there are other matters of considerable interest to be discussed for right at the heart of the custumal are three passages which call for special comment. All the copies of the custumal are in Anglo-French, the tongue which would be expected for a statute in the medieval period and in which a charter might also be engrossed, though Latin was equally acceptable. Special documents not quite in the normal form are also found in French - the Cinque Ports received statements from the Crown regarding relations with Yarmouth and these dites, as they were called, are likewise in Norman-French. Nevertheless at key points in the custumal there appear rhymed couplets in a kind of bastard English. Certainly they are not in the language of Chaucer, nor of Langland, or their contemporaries, nor can they be said to be Anglo-Saxon, yet they are probably nearer to Old English than to any other language and may be regarded as very corrupt in form. In this sense once more these jingles are evidence of antiquity and of the popular nature of the custumal. This is no imposition from without but a firm tradition handed down by men who have a strong sense of their own heritage, even if the green boughs legend lacks authority, the concept it e􀂅bodies rests firmly in fact and in these strange couplets further evidence of unconquered Kent is apparent. They may be almost unin_ telligible and subject to faults in copying, but through the confusion once more the Kingdom of Kent appears. Perhaps the most 10 JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE surprising feature, however, is that two distinct forms for each couplet have survived and that once again the early statute books follow one form, the ecclesiastical registers another. Considering the couplets in reverse order, the last is by far the most corrupt and is also the least variable in wording so that the form in the Queenborough volume may be used as a base. This reads: 'nengthe sithe yelde, nengthe sithe gilde and yif pund for pe were, yan is he heldere'. The difficulty of interpretation hardly needs to be stressed! It seems, however, to concern the tenant who having defaulted and lost his land by escheat, nevertheless desires to reclaim it. It is reasonable that to avoid undue wrangling and, perhaps worse, between lord and tenant a 'law' or custom should be established. One attempt at translation has produced the following result: 'Nine times let him give, nine times pay, And five pounds for the penalty, Ere he becomes holder' Now this is possible: it derives 'nengthe' from the Saxon 'nigon', nine, but it seems to reflect a vicious penalty in which the unfortunate tenant is fleeced unmercifully and this hardly seems to accord with what we know of early Kentish society. The middle line of the jingle is at least clear - 'and yif pund for pe were'. Here are two easy words - 'yif or 'fif meaning five, and 'were' the legal money - equivalent of a man's life, found in words like 'wergeld', and the key to the whole seems to lie just here in the line 'and five pounds for the penalty'. Robinson, too, struggles with the word 'nengthe' but so far from relating it to the word for 'nine' he associated it with 'naenig' - none or not any, and then produced the following - for which I hold no brief, though it is closely related to Lambarde's attempt at translation too: 'Hath he not since anything given, hath he not since anything paid, then let him pay five pounds for his amerciament before he become tenant or holder again'. This curious attempt at a literal translation is certainly more satisfactory than the other - it states clearly the tenants default and his obligation before he can be rehabilitated. 14 The second couplet occurs in two very different forms. So different in fact that it is difficult to believe that they mean the same thing or come from the same set of customs. The ecclesiastical texts read: 'Se the heswende, se heslende'; but the common law form is: 14 This is essentially the interpretation found in Lambeth ED 2068, a contemporary (c. 1300) commentary. 11 F. HULL 'Si pat is wedewe, se is leudei'. The first of these has been translated: 'He that doth wend to her let him lend to her' and there is little need to argue, for the purpose is clear. The couplet refers to the widow and in particular the unchaste widow, for the widow under terms of gavelkind had a very definite status and degree of protection, so, too, if she remarried her position was clearly defined, but if she misbehaved then she lost her rights and her paramour became responsible for her. But what of the alternative form - 'she that is a widow, she is a lady'? It is just possible that the final word is a corruption of 'laewede' - lewd, but that generalisation would be as difficult as the word 'lady' and far less charitable. It seems most likely that the widow as a person in her own right, recipient of a moiety of her husband's lands until she married or was proved unchaste, is here defined as a lady. The Saxon word 'hlaefdige' implied someone with responsibility for servants so that in this setting not only is the status of the widow indicated but, by implication, the second form relates closely to the first, though from the opposite standpoint, that so long as she behaved, the widow was secure. It may be asked why the ecclesiastical form appears so much less charitable than that found in common law, but this surely is because morals were an ecclesiastical responsibility. One might say that to the common lawyer a widow was a 'lady' until proved otherwise; the cleric was more concerned to emphasise his interest in her moral welfare and the inevitability of the 'wages of sin'. Nevertheless this argument is based on the thesis that in fact we have here two quite distinct forms and certainly an examination of the Queenborough text and that in Canterbury Register B wholly endorses such a concept. It is very important to remember, however, that scribal error is a commonplace in manuscripts and that once a corruption creeps into a text it can easily be retained and expanded. So, too, if our copies are indeed spread over a period of years, even a century or more, something which began as a simple scribal error can become an established form. It so happens that a close examination of Harleian 667 makes one suspicious, for the actual form of words is ambiguous. It reads: 'Se pat his wende se his lende' and by the somewhat later date of Register B this has become: 'Se the heswende se heslende' It_ is notorious that 'n', 'u' and 'v' are very easily confused and difficult to determine and if in Harleian 667 the 'n' is changed to 'u' one gets - 12 JOHN DE BERWYKE AND 'THE CONSUETUDINES KANCIE 'Se pat his weude se his leude' which is very close indeed to the alternative version. As to which came first there is no certainty and one is faced with a chicken-andegg situation, but the 'widow' and 'lady' form would appear to be the better of the two. We are left, therefore, with the first of the couplets and again two versions are found though clearly with the same essential meaning. One form reads: 'Son the Fader to the Bonde, son the son to the Londe', and the other is usually translated: 'The father to the bough, the son to the plough'. We are now in the field of criminal law in which a felon lost his estates to the crown by escheat. Not so in Kent, the gavelkinder on being convicted of felony lost his estates to his son, though the King claimed his chattels. Like the clause regarding freedom this was a most treasured privilege, and there is no wonder that it was faithfully recorded, yet popular interest has obscured one interesting fact. Of all the texts which I have examined stemming from the fourteenth century or earlier, one, only, has the word 'plough' written in it. All the others contain a word 'lough' or 'logh' prefixed by the Thorn and the actual form of words is pe logh. In the process of copying, or in translation, the Thorn has become a 'p' and there has either been a telescoping or an elision each resulting in a word plainly to be interpreted 'plough'. There is little doubt that by 1300 a form of words 'the logh' meant nothing, but once more AngloSaxon comes to the rescue. There is in fact a Saxon word 'Joh' which means a place or a stead - in the sense of homestead. In another fifteenth-century document a form 'logus' is also found with similar meaning, though indeed that could be a corruption of the Latin locus quite as much as of the Saxon Loh, plural loges." In any event the full meaning of the couplet is now abundantly clear - on conviction of the father the son entered the homestead, and in the better copies of the custumal the original Saxon word is still retained. 16 I am well aware that there is little in this lecture which is new, that much of the argument can be found in my paper of 1958, yet I have chosen this subject quite deliberately. First, the Consuetudines Kancie is one of the central documents in Kentish economic and social history; it is well that we who love this county and its traditions so well should not lose sight of that fact and that, from time to time, we should renew acquaintance with so basic an element in Kentish experience. Second, is the value of this document in rela- ,, K.A.0., U398 MIA. 16 In Lambeth ED 2068 the form is perfectly clear and is referred to as 'an ancient law of Kent'. 13 F: HULL tion to our early history. Repeatedly today, I have found myself speaking of penetrating the mists surrounding pre-Conquest society: here, in my estimation is a probe which takes us back to the Kingdom of Hengest. Twice during my twenty-seven years' experience in Kent I have found manuscripts which provide this kind of enlightenment - on one occasion it was the so-called lathe roll of 1510, 17 which contained elements of a tradition far, far older than the item in question and clearly the same applies with the custumal. Those strange couplets have the very ring of early dooms belonging to an essentially illiterate society, and there is virtually nothing in this late codification which belongs to the reign of Edward I. As with his great charter to the Cinque Ports in 1278, an age-old tradition is accepted and formalised. And so, I return to the Eyre of 1313 and to the strange plea of Sir Esmond Passeley. We may never know for certain the fonn accepted by John de Berewyk nor the exact wording of the charter delivered to John de Northwode, but the confusion twenty years later strengthens the conclusion that traditions varied even then: either the form in our fourteenth-century Statute book had been accepted and was being challenged because it lacked the breadth of definition in the other form; or the ecclesiastical version had been used and was being challenged as insufficiently specific at law - my leanings are toward the former solution. In any event, the Knights were told to define their customs and leaving nothing to chance: could it be that 'the faire written roll' was the result and that in Lambarde's published text we have, not what was agreed at the Eyre of Kent - that is in the early Statute Books - but the draft produced by men trying to reconcile two traditions, adding later clauses and then offering this revised, but hardly acceptable, version to the justices in 1313? Finally, almost as an epilogue, there is one other matter. I have once or twice referred, in passing, to the Lambeth document. This is part of a rental of archiepiscopal estates and is dated at approximately 1285, i.e. it could be earlier than our codification. But it is a strange enigmatic document: unlike the custumal it is in Latin, not French, and is only about a quarter to a third the length of the full text. Moreover it is not a codification of accepted custom - each clause mentioned uses the formula comitatus clamant: 'the whole county claims', and among these claims is our familiar one of freedom for everyone - the suggested ecclesiastical form. So, too, the first and third of the couplets are given - not the one about the widow - the forms are less corrupt than many texts, for example the 'pe logh' pattern is clear and unequivocal, and some attempt is " Arch. Cant., lxviii (1954), 97. 14 JOHN DE BERWYKE AND THE CONSUETUDINES KANCIE made to interpret, interpretations which follow closely the line of argument given here, but there is a strange bonus. Right at the heart of this document is a sentence so unexpected as to cause surprise and excitement. We are used to the invicta legend and to the use of invicta as the motto of Kent and things Kentish. We know it is referred to by Lambarde and Michael Drayton in Polyolbion, but there is an understandable tendency to regard it as a medieval fiction, a tale told by chroniclers, added to the story of Kent - nostalgic longing for something lost initially in the ninth century with the overthrow of the Kingdom. IR Here in a text which can be as early as the twelve-eighties we find the sentence: 'That the county ought by right to be free of this oppression because ( .... .) this county has never been conquered as was the rest of England, but by an agreement surrendered itself to the goodwill (gift) of the conquerors, all its liberties and freemen of the county being preserved .... ' Thus a mere two centuries after Domesday and scarcely more from the Conquest itself we find 'the whole county': i.e. the knights and others who made up the shire court, claiming the very thing enshrined in the Green Boughs legend and recorded by Lambarde three hundred years later. This is not a Thomas Mallory romancing, but a plain statement before the King's Justice, for the Lambeth document makes it clear that the claim was heard by John Bacon, an itinerant justice, who is found between 1275 and his death in 1321 and who was one time keeper of Leeds Castle. In the great legal work of the first Edward, Kent evidently played a large part, its peculiarities and special features were examined and recognised and, just as we found that the custumal led us back into pre-Conquest society, so, now, linked with it, we find strong evidence for 'unconquered Kent'. These late medieval texts give substance to our peculiar customs and even to our myths - they could almost be said to be the Magna Carta of the Kingdom of Kent. '9 1 􀀂 For an account of the history of this tale, see Hasted, 1st edn., i, 264. •• This paper was prepared without any consideration of Mr Sinclair Williams' essay, published in Arch. Cant., xcv (1979), 65-79. He has used essentially the same material and reached somewhat different conclusions, an interesting comment on the difficulty of interpretation in the continuing saga of the Custumal of Kent. 15