Lambard continues

"The selfsame order is at this day observed in the citie of London, and the same in effect was long since used throughout the whole realme; for it is euident, from the woordes of Magna Carta, that the wife and children had their reasonable partes of the goods by the common law of the realme....................... But as in deede at this day partition of chattels is not used throughout the whole realme, so is it (so far as I can learne) vanished quite out of all ure 130 within this countrie also." 131

"Though Mr. Somner mentions an inclination, in some persons of his time, to have revived this usage, yet their endeavours never took effect. On the contrary, the men of Kent have now, beyond controversy, the same power of disposing of their personal estates by will, as the other subjects of this realm; and as to the division of intestates' estates, are equally under the Statutes of Distribution." 132

SEC. XIII. "Et si le heir, ou lez heirs, seit, ou seyent dedeins le age de xv ans, seit la nouriture de eux baille per le seig. al plus procheyn del sank, a qui heritage ne peut descendre, issi que le seign. pur le bail rein ne prengne. Et quil ne seit marie per le seign. mes per sa volunte demeine, et per le conseil de ces amys sil veut. Et quant cel heir, ou ceux heirs sont de plener age de xv auns, seient a eux lour terres, e lour tenemenz liures, ensemblement oue lour chateaux, et oue les enprouemenz de celes terres outre renable sustinance: de quel enprouement, e chateux, seit tenu a respondre celui qui de luy auera la noriture, ou le seigneur ou ses heires que cel noriture auera baille."

"If tenant in Gavelkind die, leaving his heir or heirs within the age of xv years, the next of blood, to whom the inheritance cannot descend, shall by the appointment of the lord (if there be several in equal degree of kindred) have the custody of the body, lands, and goods of such infant heir, until he attain to that age; but the lord shall take nothing for the appointment, nor ought he to tender any marriage to the heir." 133

130 Ure,' i.e. use, or custom.

131 Peramb. Kent, p. 561.

132 Robinson on Gavelkind, p. 176.

133 Robinson on Gavelkind, p. 237.

The earliest provision for the infant heir, which I have met with, is in the laws of Hlothhare and Eadric, kings of Kent: 134

Мобæре у Єабріс. Ľаперара cýningar. ecton pa æ þe heopa aldonar æn gepoɲhton. þýjum domum þe hýɲefter sæzed:·

VI. In ceoɲl acpýle be libbendum pife beanne. piht

hit. bearn. medder Folgize. him man an hir fædering-mazum piljumne benizean zefelle. hr feoh to healdenne op þær he x pintɲa ɲie :·

(Anc. Laws and Instit. of England, p. 12.)

"Hlothhære and Eadric, kings of the Kentishmen, augmented the laws which their elders had before made, by these dooms which hereafter say

VI.

"If a husband die, wife and child yet living, it is right that the Ichild follow the mother; and let there be sufficient borh' given to him from among his paternal kinsmen to keep his property till he be x years of age."

And by the laws of Ina, King of Wessex-135

Be don de rýht gesamhipan beann hæbban. and donne re per gepite.

XXXVIII. LF ceonly hir pif beann hæbben gemæne. J Fere re ceoɲl fond. hæbbe rio modon hine beaɲn 7 fede. azife hine mon vi rcill. to fostre. cú on rumena, oxan on pintna. Dealden þa mægar þone Ƒrumstol oppæt hit gepintred sie :· (Ibid., p. 54.)

"In case lawfully married persons have a child, and then the husband die.

XXXVIII. "If a 'ceorl' and his wife have a child between them, and the 'ceorl' die, let the mother have her child and feed it. Let VI shillings be given her for its fostering, a cow in summer, an ox in winter. Let the kindred take care of the 'frum-stol' until it be of age."

134 Hlothhære ascended the throne of Kent A.D. 673, and died A.D. 685. He was succeeded by his nephew Eadric, who reigned one year and a half. (Anc. Laws and Instit. of England, p. 11, note a.)

135 Ina ascended the throne of Wessex A.D. 688, reigned XXXVII years, when he abdicated, and retired to Rome. (Ibid. p. 45, note a.)

And in like manner by the antient common law :

"Si quis pater mortuus fuerit et filium vel filiam hereditandam reliquerit, usque ad xv etatis annos nec causam prosequantur nec judicium subeant, set sub tutoribus et actoribus sint in parentum legitimâ custodiâ saisiti sicut pater eorum fuit in die mortis et vite sue." (Ibid. p. 250.)

66

'If any father shall die, and shall leave son or daughter to inherit, they shall not sue, nor suffer judgment in any cause until the age of XV years, but they shall remain under tutors and agents in the lawful custody of the relations, seised as their father was on the day of his death." (Laws of K. Hen. I, cap. 70, sec. 18.)

Again, in the laws of K. Henry I, cap. 59, sec. 9—

"Pueri autem ante xv. annos plenos nec causam prosequantur nec in judicio resideant. De rebus hereditatis sue interpellatus post XV. annos defensorem habeat vel idem respondeat, et calumpniam mittat in rebus suis, ut nullus eas teneat uno anno et uno die sine contradiccione dum sanus sit, et

patrie pax. De minoribus vero causis, respondeant interim tutores eorum si forisfaciant aliis vel alii forisfaciant ipsis."

(Anc. Laws and Instit. of England, Leges Hen. I, p. 242.)

"But children before the full age of xv years shall neither sue nor remain in judgment in any cause. If appealed of any matter concerning his inheritance after xv. years of age, he may have a defender [next friend?] or he may himself answer. And he may put in his claim to his own property, so that none may hold it for a year and a day without challenge, if he be of sound mind and within the [king's] peace. But of minor causes, in the meantime, let their guardians answer, if they make forfeiture to others, or if others forfeit to them."

And Bracton, speaking of wardships, says

"Si fuerit hæres socmanni, tunc demum cum xv. annos compleverit ætatem habere intelligitur." (Fol. 86; see also Glanvil. lib. 7, cap. 9.)

"If he be the heir of a soc-man (i. e. a tenant in socage), as soon as he shall have completed the age of xv years he is understood to be of full age."

"When the Gavelkind heir arrives at the age of fifteen years this customary guardianship ceases, and the guardian shall then deliver up to his ward his goods and lands, with the improvements, and in all things shall be charged,

and have allowance as guardian in socage at common law. If the lord assign the guardian, and the guardian make default, the lord is chargeable by the custom; therefore at this day the lord seldom intermeddles in the matter." (Robinson on Gavelkind, p. 238.)

"Rex Vic. Kanc'. salutem. Certum est, et nulli sapienti de regno nostro dubium, quòd terrarum quæ tenentur in socagio vel Gavelikende, nulla pertinet ad dominos earundem terrarum custodia, sed solummodò ad parentes propinquiores ex illâ parte qui ad successionem hæreditariam aspirare non possunt."

And again

"Hundredum de Middleton.

Juratores præsentant quòd cum consuetudo sit per totam Kanciam quòd quando aliquis obierit qui terram teneret in Gavelikende, et hæres suus sit infra ætatem, mater, vel parens propinquior ipsius hæredis ex parte matris, habere debeat custodiam ipsius hæredis et terræ suæ ad appruandum et respondendum de exitibus ejusdem terræ predicto hæredi cum ad ætatem pervenerit et hoc absq'. aliquo fine inde capiendo, &c."

(Itin. Kanc. 43 Hen III, rotul. 13.)

"The King to the Sheriff of Kent, greeting. It is clear, and without doubt to every wise man of our kingdom, that of lands which are holden in socage or in Gavelkind, no custody (or wardship) belongs to the lords of the same lands, but only to the nearest relations on that side who cannot aspire to the inheritance." (Rot. Claus. 37 Hen. III, memb. 19.)

"Hundred of Milton.

"The jurors present that whereas there is a custom throughout all Kent, that whensover any one shall die who held land in Gavelkind, and his heir should be within age, the mother, or next relation of the same heir on the part of the mother, shall have the custody (wardship) of the same heir, and of his land, to cultivate and to answer for the issues (profits) of the same land to the aforesaid heir when he shall come of age, and that without taking anything for the same."

It should, however, be observed, that the customary guardianship will not take place, if the father appoint a guardian by deed or will, according to the statute 12 Car. II, c. 24.

SEC. XIV. "Et ceo fet a sauoir que del houre que ceux heirs Gauglekende seient, ou ount passe le age de xv auns, list a eux lour terres ou tenemenz doner e vendre a lour volunte, sauues les services au chefz seignorages com il est deuant dit."

The power of alienation, by an infant, of his Gavelkind lands at his full age of fifteen years, is one of the most remarkable and, I will add, most valuable of our Kentish customs, and is in full operation at the present day.

In discussing this section of our Custumal, we will consider

I. Whether the custom be limited to the heir in Gavelkind, that is, to such lands only as have descended to the infant by inheritance. Or,

II. Whether the custom extends to all his lands of Gavelkind tenure, and that whether acquired by descent or by purchase.

III. Whether the alienation must be upon a sale only, and for a valuable consideration. And,

IV. Whether it can be effected otherwise than by feoffment, with livery of seisin by his own hand.

And, FIRSTLY-Whether the custom be limited to the heir in Gavelkind, that is, to such lands only as he shall have taken by descent.

According to the strict letter of our Custumal, none but heirs in Gavelkind are authorised to alienate their lands at the age of fifteen years.

Lambard says (Peramb. Kent, p. 565) it is necessary "that he be an heire, and not a purchasour of the lands that he departeth withall." For this he cites the Custumal, in which "the woordes ceux heires doe restraine the infant that commeth in by purchase."

But neither in practice at this day, nor according to a succession of antient records, has the custom received so limited and restricted a construction. We will on the other side adduce the following records, in support of our opinion, that the custom is not restricted to such lands only as have come to the infant by descent, but that it extends to all his lands of Gavelkind tenure.