gavelkind

Gavelkind was a peculiar system of land tenure associated chiefly with the county of Kent, but found also in other parts of England. Its inheritance pattern bears resemblance to Salic patrimony and as such might testify in favour of a wider, probably ancient Germanic tradition.

Gavelkind in Kent

In Kent all land was 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 were the following:

1. A tenant could pass on part or all of his lands as a fiefdom from fifteen years of age.
2. On conviction for a felony, the lands were not confiscated by The Crown.
3. Generally the tenant could always dispose of his lands in his will.
4. In case of intestacy, the estate was passed on to all the sons, or their representatives, in equal shares, leaving all the sons equally a gentleman. Although females claiming in their own right were given second preference, they could still inherit through representation.
5. A dowager was entitled to one half of the land.
6. A widow may be tenant by courtesy, without having had any issue, of one-half, but only so long as she 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 was 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of the customary law of England; it was, previous to the Conquest, the general custom of the realm, but was then superseded by the feudal law of primogeniture.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.

Gavelkind in Wales

This 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. Under Welsh law on a landowner's death the land would be divided equally among all his sons, including illegitimate sons. The equal division amongst children of an inheritance in land is of common occurrence outside the United Kingdom.

The ultimately infinite division of ever smaller pieces of land by successive generations of sons has been blamed for the comparative weakness of the Welsh polity as opposed to the system of primogeniture in England where the entire patrimony was received intact by the eldest son. The Welsh historian Philip Yorke summarised the situation clearly;

"Our laws of gavelkind, had ill effect, applied to the succession as the freedom of the State; it balanced the power and raised the competition of the younger branches against the elder; a Theban war of Welsh brethren ending in family blood, and national destruction." The Royal Tribes of Wales by Philip Yorke (1799) p.46

Gavelkind in Ireland

Main article Gavelkind in Ireland

Under Brehon Law land was divided at the death of the holder amongst his sons. The Normans gave this Irish inheritance law the name Gavelkind due to its apparent similarity to Saxon Gavelkind inheritance in Kent.

References

• Robinson, On Gavelkind
• Digby, History of the Law of Real Property
• Pollock and F. W. Maitland, History of English Law
• Challis, Real Property.

See also

• History of English land law

This article incorporates text from the Encyclopædia Britannica, Eleventh Edition, a publication now in the public domain.

Further reading

• Elton, Charles I. (1867), The Tenures of Kent, London: James Parker and Co, http://books.google.com/books?id=tzc0AAAAIAAJ&pg=PR1 
• Robinson, Thomas (1822), The Common-Law of Kent, London: Henry Butterworth, http://books.google.com/books?id=ciM0AAAAIAAJ&printsec=titlepage