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succeeds to the
burgage tenement on the
death of the fa
were to the Norman customs, and which is taken notice of youngest son by Glanvil (w), and by Littleton (a); viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton (y) gives this reason: because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors (2) have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her weddingnight; and that therefore the tenement descended not to the eldest, but the youngest son, who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name of mercheta or marcheta,) till abolished by Malcolm III. (a). And perhaps a more rational ac(y) S. 211. (2) 3 Mod. Pref.
(w) Ubi supra. (x) S. 165.
(a) Seld. tit. of hon. 2. 1. 47. Reg. Maj. 1. 4, c. 31.
243). The course of descent of lands held in gavelkind, or in borough English, cannot be altered by any limitation of the parties; for, customs which go with the land, and direct the course of inheritance, can be altered only by Parliament. (Co. Litt. 27 a. Jenkins Cent. page 220; S. P. Dyer, 179 b. Roe v. Aistrop, 2 W. Blacks. 1229. 2 Hale's Hist. of Com. L. 103). But, there is a great difference between the descent of such land and the purchase thereof: for if upon such purchase a remainder be limited to the right heir of the purchaser, or of any other person, the heir at common law will take it, and not the customary heir. For, the remainder being newly created, could not be considered within the old custom. (Counden v. Clerk, Hob. 31). On the other hand, if a man, seised in fee of lands in gavelkind, make a gift in tail, or a lease to a stranger for life,
with remainder to his own right heirs,
If the Court of Chancery is called
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Other special customs in burg
The principal distinguishing properties of tenure in gavelkind are
count than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the eldest sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle; and go to seek a new habitation. The youngest son, therefore, who continues latest with his father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became his heir (b). So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband's tenements (c), and not of the third part only, as at the common law: and that, in others, a man might dispose of his tenements by will (d), which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable (e). A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty (12).
The nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentish men made to preserve their antient liberties, and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom (ƒ),) we may fairly conclude
(b) Pater cunctos filios adultos a se pellebat, præter unum quem hæredem sui juris relinquebat. (Walfingh. Upodigm. Neustr. c. 1).
(c) Litt. s. 166.
(d) S. 167.
(e) Wright, 172.
(f) Stat. 32 Hen. VIII. c. 29. Kitch. of Courts, 200.
(12) See ante, notes (7) and (10), and post, note (14) to this chapter.
age at fifteen;
that this was a part of those liberties; agreeably to Mr. Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realm (g). The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to aliene 1. The tenant of his estate by feoffment at the age of fifteen (h). 2. The estate does not escheat in case of an attainder and execution for felony (13); their maxim being, "the father to the bough, felony; the son to the plough (i)." 3. In most places he had a pow- 3. Power of deer of devising lands by will (14), before the statute for that vising lands; purpose was made (k). 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together (l) (15); which was indeed antiently the most usual et inviolata remansit. (Analect. 1. 2, c. 7). (h) Lamb. Peramb. 614. (i) Lamb. 634.
(g) In toto regno, ante ducis adventum, frequens et usitata fuit: postea caeteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans: Cantianis solum integra
(k) F. N. B. 198. Cro. Car. 561.
4. Lands de
scend to all the
(13) As to the general relaxation of the law of escheat, by the statute of 54 Geo. III. see ante, note (16) to chap
(14) Lord Hale (in the 2nd Vol. of his Hist. of the Com. L. p. 97) intimates, that a power of testamentary disposition was recognized generally in this country, with respect to lands as well as goods, up to the time of Hen. II. But this is not very consistent with the statement in his 1st volume, (p. 221), where he says, at this day, a man may give his lands in fee simple, though he has them by descent, to any one of his children, and disinherit the
But by the antient laws used here it was not so." And he cites, as his authority, Glanvil, lib. 7, c. 2.
Mr. Roberts (in the 1st chapter of his Law of Wills) observes, "if the power of disposing of land was exer
cised by our Anglo-Saxon ancestors, it
(15) Up to the time of King John
course of descent all over England (m), though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in its nature certain (n). Wherefore, by a charter of King John (0), Hubert, archbishop of Canterbury, was authorized to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's-service; and by statute 31 Hen. VIII. c. 3, for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now the immunities which the tenants in gavelkind enjoyed (16) were such, as we cannot conceive should be conferred upon mere ploughmen and peasants; from all which I think it sufficiently clear that tenures in free socage are in general of a nobler
(m) Glanvil. 1. 7, c. 3.
(0) Spelm. Cod. Vet. Leg. 355.
(n) Wright, 211.
tient law used in England," (he had just before specifically referred to the days of Hen. II. and Rich. I.) “though it directed knight's services and serjeanties to descend to the eldest son, directed vassalages, and socage lands to descend to all the sons." (1 Hist. of Com. L. 219, 220. See 2 Hale's Hist. C. L. 103, 109; as also, post, the 14th chapter of this volume.
(16) Yet our author has just furnished us with instances, shewing how inferior the advantages of gavelkind te nure must have been held by the parties applying for charters and acts of parliament, to have their lands disgavelled. Besides the public act mentioned by our author in the text above,
a private act was made in the 2 & 3 Edw. VI. with respect to certain lands in Kent, enacting that "the lands be clearly changed, and be in no wise departible, but shall be to all intents and purposes as lands at the common law, and as if they had never been of the nature of gavelkind." Under this act a question arose, whether the other collateral qualities, as well as the partibi lity of the lands, were taken away? and the court of King's Bench unanimously held that they were not; considering that if the intent of parliament had been to take away all the customs, that of partibility would not have been the only one specified. (Wiseman v. Cotton, T. Raym. 59, 77).
original than is assigned by Littleton, and after him by the bulk of our common lawyers.
Having thus distributed and distinguished the several The nature of species of tenure in free socage, I proceed next to shew that socage tenures this also partakes very strongly of the feodal nature. Which may probably arise from its antient Saxon original; since (as was before observed (p)) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive *charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton (q), their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.
However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along.
1. In the first place, then, both were held of superior lords; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and the tenant.
[ *86 ]
Socage tenure and tenure in pared.
1. Both were
held of superior
2. Both were subject to the feodal return, render, rent, 2. And were or service of some sort or other, which arose from a suppo- feodal render or subject to the sition of an original grant from the lord to the tenant.
In services (those