Gavelkind
|
|
Gavelkind is a peculiar system of land tenure associated chiefly with the county of Kent, but found also in other parts of England.
In Kent all land is presumed to be held by this tenure until the contrary is proved, but some lands have been disgavelled by particular statutes. It is more correctly described as socage tenure, subject to the custom of gavelkind. The chief peculiarities of the custom are the following:
- A tenant can alienate his lands by feoffment at fifteen years of age.
- There is no escheat on attainder for felony, or as it is expressed in the old rhyme, "The father to the bough/The son to the plough."
- Generally the tenant could always dispose of his lands by will.
- In case of intestacy the estate descends not to the eldest son but to all the sons (or, in the case of deceased sons, their representatives) in equal shares. Every son is as great a gentleman as the eldest son is. It is to this remarkable peculiarity that gavelkind no doubt owes its local popularity. Though females claiming in their own right are postponed to males, yet by representation they may inherit together with them.
- A wife is dowable of one-half, instead of one-third of the land.
- A widower may be tenant by courtesy, without having had any issue, of one-half, but only so long as he remains unmarried. An act for commuting manorial rights in respect of lands of copyhold and customary tenure contained a clause specially exempting from the operation of the act the custom of gavelkind as the same now exists and prevails in the county of Kent.
Gavelkind is one of the most interesting examples of the customary law of England; it was, previous to the Conquest, the general custom of the realm, but was then superseded by the feudal law of primogeniture. Its survival in this instance in one part of the country is regarded as a concession extorted from the Conqueror by the superior bravery of the men of Kent.
Irish gavelkind was a species of tribal succession, by which the land, instead of being divided at the death of the holder amongst his sons, was thrown again into the common stock, and redivided among the surviving members of the sept. The equal division amongst children of an inheritance in land is of common occurrence outside the United Kingdom.
References
Robinson, On Gavelkind; Digby, History of the Law of Real Property; Pollock and Maitland, History of English Law; Challis, Real Property.