he had a power of deviſing lands by will, before the ſtatute for that purpoſe was made[1]. 4. The lands deſcend, not to the eldeſt, youngeſt, or any one ſon only, but to all the ſons together[2]; which was indeed antiently the moſt uſual courſe of deſcent all over England[3], though in particular places particular cuſtoms prevailed. Theſe, among other properties, diſtinguiſhed this tenure in a moſt remarkable manner: and yet it is held to be only a ſpecies of a ſocage tenure, modified by the cuſtom of the country; being holden by ſuit of court and fealty, which is a ſervice in it's nature certain[4]. Wherefore, by a charter of king John[5], Hubert arch-biſhop of Canterbury was authorized to exchange the gavelkind tenures holden of the fee of Canterbury into tenures by knight-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 were ſuch, as we cannot conceive ſhould be conferred upon mere ploughmen, or peaſants: from all which I think it ſufficiently clear, that tenures in free ſocage are in general of a nobler original than is aſſigned by Littleton, and after him by the bulk of our common lawyers.
Having thus diſtributed and diſtinguiſhed the ſeveral ſpecies of tenure in free ſocage, I proceed next to ſhew that this alſo partakes very ſtrongly of the feodal nature. Which may probably ariſe from it's antient Saxon original; ſince (as was before obſerved[6]) 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;
