The History and Topographical Survey of the County of Kent: Volume 1. Originally published by W Bristow, Canterbury, 1797.
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Socage and gavelkind tenures
THE SOCAGE TENURES of Antient Demesne and Gavelkind claim our next remembrance. The former of which consists of those lands and manors which were the antient inheritance of the crown, and actually in the hands of it in the time of king Edward the Confessor or William the Conqueror, and which appear to have been so by the great survey of Domesday, in the exchequer, in which they are entered under the title of Terra Regis. Most of these have been from time to time granted out to private subjects, but the tenants of them, under the crown, were not all of the same order and degree; some of them continued for a long time in absolute villenage, dependent on the will of the lord, and those that succeeded them in their tenures now differ from common copyholders in only a few points. Others were in a great measure enfranchised by the royal favour, holding their lands by the better sort of villein services, all which are now changed into pecuniary rents, in consideration of which they had many immunities and privileges granted to them, as to try the right of their property in a peculiar court of their own, called a court of antient demesne, not to pay toll or taxes, not to contribute to the expences of the knights of the shire, not to be put upon juries, and the like. The latter of these, the focage tenure of gavelkind, prevails in general over this county, to which, within the bounds of it, there are certain special customs inherent, called antiently Consuetudines Kantiæ, being the common law of Kent. Various are the opinions of our antiquaries concerning the etymology of the word gavelkind, but that which is most natural and best supported, both by reason and authority, is drawn from the nature of the services. According to this exposition of the term, it is derived from the Saxon word gafol or gavel, which signifies rent, or a customary performance of husbandry works, and therefore they called the lands, which yield this kind of service, gavelkind; that is, the kind of land that yields rent. In this opinion were Mr. Lambarde, Somner, and Philipott. There are four treatises printed concerning gavelkind—Mr. Somner's, which is confined to the etymology of the name, and the original and antiquity of the custom, with a few other speculative points; Mr. Taylor's treats of the history and etymology of gavelkind in general, without any particular regard to the Kentish customs, to which he was an entire stranger; Mr. Lambarde's is intended only as a summary account, mostly confined to the points of the custumal; and Mr. Robinson's, which is an excellent book, for it not only comprehends whatever is useful in the others, but contains a full account of both tenure and custumal; besides which, it is a complete law treatise on these heads, and is of such authority in the courts, that it is in general referred to by the judges, as a direction to them to proceed in the knotty and before unknown points of this tenure and custom.
If this is the true etymology, it is plain, that gavelkind, taken in the strictest sense of the word, denotes the tenure of the land only, and that the partibility, and other customary qualities, are rather extrinsic and accidental to gavelkind, from the customary laws of the place, than necessarily comprehended under that term. (fn. 1)
Gavelkind lands are not peculiar to the county of Kent; there are many instances of them in different parts of this realm, which are said to partake of the nature and custom of gavelkind, a stile they have assumed since the disgavelling statute of the 31st of king Henry VIII. before which they are never mentioned as gavelkind land, but only, that they were such as were partible, and had been parted; and so peculiar is this tenure esteemed to be to this county, that, whereas in all other places, the claimant is obliged to set forth particularly the custom whereon he founds his right to the lands, as being of the nature and tenure of gavelkind; in this county it is sufficient to shew the custom at large, and to say that the lands lie in Kent, and are of the nature of gavelkind, of which all lands lying within the county are presumed to be, till the con- trary be made to appear. And this is the reason why the books call gavelkind in this county by a higher appellation than is given to any other custom, viz. The common law of Kent. It is certain, that all lands in this county which were antiently and originally holden in socage tenure, are of the nature of gavelkind, of which sort were most of the terre tenants of the several seignories in it, who held by that tenure, notwithstanding their chief lords held by military service.
The custom of gavelkind cannot either be created or taken away, by any change of tenure nor by any other means, but by act of parliament; antiently, indeed, our kings exercised a prerogative of changing the customary descent, together with the tenure, which power was sometimes delegated to others; for king John, in his third year, by his charter, authorised Hubert, archbishop of Canterbury, to change the gavelkind tenures holden of the see of Canterbury into tenures by knights service.
The special customs incident to gavelkind, in Kent,
are—That the husband, after his wife's death, enjoys
a moiety of her inheritance in gavelkind by courtesy,
whether he has children by her or not, until he marries again. The wife, after the death of her husband, has for her dower a moiety of his lands in gavelkind, for so long time as she shall continue unmarried
and in chastity; after which, faith the custom,
He that does turn or wend her,
Let him also give unto her or lend her.
The tenant of gavelkind lands is kept in ward one
year longer than is permitted by the common law;
that is, till he is fifteen years of age, at which time
he is of sufficient age to alien his estate by feoffment.
Lands in gavelkind, if the tenant commits felony,
and submits to the judgment of he law, are not for-
feited, nor do they escheat to the king or other lord
of whom they are holden, which has given occasion
to the proverbial expression,
The father to the bough,
And the son to the plough.
Lands in gavelkind descend to all the sons alike in equal portions, and if there are no sons, then equally among the daughters; and as to the chattels, it was formerly part of the custom of this county to divide them, after the funeral and the debts of the deceased were discharged, into three parts, if he left any lawful issue behind him, of which three, one portion was to the dead, for the performance of legacies; another to his children, for education; and a third to the wife, for her support and maintenance.
Furthermore, if the tenant of gavelkind lands withdraws from his lord his due rents and services, the custom of this county gives the lord a special and solemn kind of cessavit, called gavelet, by which, unless the tenant redeems his lands by payment of the arrearages, and makes reasonable amends for withholding the same, they become forfeited to the lord, and he enters into them and occupies them as his own demesnes.
The tenants in gavelkind in this county claim the privilege, that where a writ of right is brought concerning gavelkind lands, that the grand assise shall not be chosen in the usual manner by four knights, but by four tenants in gavelkind, who shall not associate to themselves twelve knights, but that number of tenants in gavelkind; and further, that trial by battle shall not be allowed in such a writ for these lands; notwithstanding this claim, one of the last instances in our books, of battle joined in a writ of right, was between Lowe and Paramour, for lands in Harty, which were gavelkind. The pompous account of the ceremony, preparatory to the combat, is worth reading. (fn. 2)
There were some other privileges relating to gavelkind lands which are now obsolete, such as their exemption from serving on juries in attaints, which was taken away by statute, anno 18 Henry VI. that no man should have common in lands of that nature; the privilege of driving off cattle found damage fesant on gavelkind lands; and also a custom peculiar to the Weald, that the lords, of whom the drovedennes were holden in gavelkind, should have all the great oaks, ash, and beech growing there, together with the pannage thereof, and the tenants only the underwood, or at most the oak, ash, and beech, under forty years growth; and there remains no footing of this right at this day, this claim being given up by the lords by their agreement with their tenants in the time of Edward III. and Richard II. (fn. 3) The Kentish custumal likewife claims, as a custom common to all Kentishmen, that their bodies be free, as well as the other free bodies of England, which was formerly, whilst many of the subjects of this kingdom remained under a state of hereditary bondage, a most glorious and valuable birthright. Probably this privilege might have its commencement from some statute made for this purpose, for Somner has shewn, beyond contradiction, by several antient records, that there have been villeins in Kent since the conquest.
There remains yet another privilege, formerly claimed by the men of Kent, redounding much to the honour of their county, which is, that of being placed in the vanguard of the army, whenever they engaged in common with the rest of their neighbours; which right was granted to them on account of their gallant and noble behaviour in the encounters between the Saxons and Danes, long before the conquest, and I should suppose they would still have an equal title to this honour, and am sure they would as well deserve it, was the national force of this kingdom at any time called out into actual service against the common enemies of this kingdom.
There are several copies of the Custumal of Kent, some in French, and others in Latin, in which last it is entitled, Consuetudines and Constitutiones Kantiœ, all the copies of which differ exceedingly in many essential matters. There is one in manuscript in the king's remembrancer's office, several in the Cotton library and among the Harlean manuscripts in the British museum. These copies, with the difference between them, may be seen in Robinson's treatise on this subject. Mr. Lambarde has given a copy of the Custumal in French in both of his editions, which differ exceedingly; and he owns, in his last edition, that the copy there printed is what he had procured since the former, and that it was by far the most perfect. It has, in most of the Latin copies, the high appellation of statutum de consuetudinibus Kanciœ, which my lord Coke also gives it; but it has no other foundation for this title than its being met with in old collections of statutes, as many other matters are, which were never enacted by authority of parliament. However, thus much must be said for the present authority of this Custumal; of whatever original it may be, it has received such a sanction from its antiquity, (fn. 4) that it has been admitted in evidence to a jury, even from Lambarde's copy.
There were in former times repeated claims made of these liberties and customs before the Kentish justices in eyre, particularly in the reign of king Henry III. and Edward I. on account of the continual encroachments made on them, as well by the sheriffs as the rest of the crown officers, and the usage of them was continually allowed in these iters. In one of which, on a general claim of these liberties and customs, which the rest of the kingdom had not the usage of, as the record now in the Surrenden library sets forth, upon occasion of some burthens laid on the commonalty of this county, derogatory to them, after enumerating each particular custom; and pleading —that this county ought of right to be free from the grievances therein complained of, the record continues, because the said county was not conquered with the rest of the kingdom, but surrendered itself up to the Conqueror by a peace made with him, and a saving to itself of all liberties and free customs before that time had and used. This transaction is thus celebrated by the old poet, Michael Drayton, in his poem: (fn. 5)
.................O noble Kent, this praise doth thee belong,
Most hard to be controll'd, impatientest of wrong,
Who, when the Norman first, with pride and horror sway'd,
Threw'st off the servile yoke upon the English laid,
And with a high resolve most bravely did restore
That liberty so long enjoyed by thee before;
Not suff'ring foreign laws should thy free customs bind,
Then only shewd'st thyself of antient Saxon kind.
Of all the English shires be thou surnamed the free,
And foremost ever plac'd when they shall reckon'd be;
And let the town which chief of this rich country is
Of all the British fees be still metropolis.
The confirmation of these their antient privileges from the Conqueror was, no doubt, necessary for supposing gavelkind to have been the common law of the kingdom, we find this county kept and still enjoyed it by this composition, when almost all the rest of the kingdom lost it, and were forced to submit to the new laws of the Conqueror, but whether this was managed by means of the moving wood at Swanscombe, or by treaty there or elsewhere, I own, I have not yet met with any authority sufficient to determine.
It is laid down as a rule, that nothing but an act of parliament can change the nature of gavelkind lands, and this has occasioned the passing of several, for the purpose of disgavelling the possessions of divers gentlemen in this county.
THOMAS lord Cromwell,
Thomas lord Burghe,
George lord Cobham,
Andrew lord Windsore,
*Sir Thomas Cheyne,
Sir Christopher Hales,
Sir Thomas Willoughby,
*Sir Anthony St. Leger,
*Sir Edward Wotton,
Sir Edward Bowton,
*Sir Roger Chomley,
Sir John Champneys,
*John Baker, esq.
*Sir Thomas Cheyne,
*Sir Anthony Seintleger,
Sir Robert Southwell,
*Sir John Baker,
*Sir Edward Wootton,
*Sir Roger Cholmley,
*Sir Thomas Moyle,
Sir John Gate,
Sir Edmund Walsingham,
*Sir John Guldeford,
Sir Humphry Style,
*Sir Thomas Kempe,
Sir Martin Bowes,
*Sir James Hales,
Sir Walter Hendley,
Sir George Harper,
Sir Henry Istley,
Sir George Blage,
Thomas Colepeper, of Bedgbury,
John Colepeper, of Aylesford,
Thomas Colepeper, son of the said John,
Thomas Darrel, of Scotney,
The words made use of in these statutes are very general, such as, that all manors, lands, tenements, &c. whatsoever, lying and being within the county of Kent, of which the persons mentioned in the acts were at that time seised, which then were of the nature and tenure of gavelkind, should from thenceforth be clearly changed from the said custom, tenure, and nature, and be made to descend according to the common law, as if the same had never been of the said nature of gavelkind. Notwithstanding the generality of which words, the courts have determined, that the statutes of disgavelling only took away the partibility, and not the other qualities and customs appertaining to lands in Kent.
The great length of time since these acts were passed, the continual change of property since, the extinction of the court of wards, and the inquisitiones post mortem, the want of knowledge where records are deposited, and the great expence of searching for them, the difficulty of proving what estates the persons named in the disgavelling statutes were seised of at the time of making them, together with that of shewing what lands were formerly subject to military tenures, which increases every day since the abolition of them; these difficulties are become so great, that the possessors of lands entitled to the benefit of these acts choose, in general, to wave the privilege of them, and to let their lands pass in common with those of their neighbours, rather than enter into such a labyrinth of trouble and expence; so that it may be asserted, that there is at this time almost as much land in this county subject to the controul of the custom, as there was before the disgavelling statutes were made. (fn. 6)