therefore, who continues lateſt with the 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[1]. So that poſſibly this cuſtom, wherever it prevails, may be the remnant of that paſtoral ſtate of our Britiſh and German anceſtors, which Caeſar and Tacitus deſcribe. Other ſpecial cuſtoms there are in burgage tenures; as that the wife ſhall be endowed of all her huſband's tenements[2], and not of the third part only, as at the common law: and that a man might diſpoſe of his tenements by will[3], which, in general, was not permitted after the conqueſt till the reign of Henry the eighth; though in the Saxon times it was allowable[4]. A pregnant proof that theſe liberties of ſocage tenure were fragments of Saxon liberty.
The nature of the tenure in gavelkind affords us a ſtill ſtronger argument. It is univerſally known what ſtruggles the Kentiſhmen 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[5]) we may fairly conclude 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[6]. The diſtinguiſhing properties of this tenure are various: ſome of the principal are theſe; 1. The tenant is of age ſufficient to aliene his eſtate by feoffment at the age of fifteen[7]. 2. The eſtate does not eſcheat in caſe of an attainder and execution for felony; their maxim being, "the father to the bough, the ſon to the plough[8]." 3. In moſt places
- ↑ Pater cunctos filios adultos a ſe pellebat, praeter umim quem heredem ſui juris relinquebat. (Walſingh. Upodigm. Neuſtr. c. 1.)
- ↑ Litt. §. 166.
- ↑ §. 167.
- ↑ Wright. 172.
- ↑ Stat. 32 Hen. VIII. c. 29. Kitch. of courts, 200.
- ↑ In toto regno, ante ducis adventum, frequens et uſitata fuit: poſtea caeteris adempta, ſed privatis quorundam locorum conſuetudinibus alibi poſtea regerminans: Cantianis ſolum integra et inviolata remanſit. (Analect. l. 2. c. 7.)
- ↑ Lamb. Peramb. 614.
- ↑ Lamb. 634.
