GAVELKIND. “Ces sont les vsages de Gauylekend, e de Gauylekendeys en Kent, que furent deuaunt le Conquest, e en le Conquest, e totes houres ieskes en ca." CUSTUMAL OF KENT. HE venerable code of Saxon laws and customs which is THE now presented to the view of the reader, has peculiar claims upon the attention, not only of the Antiquary, but of the Historian and the Legislator, the Philosopher and the Patriot. When we reflect that whatever is really excellent and valuable in the English Constitution is derived, either mediately or immediately, from our Anglo-Saxon ancestors, I trust I shall stand excused from rashness or presumption in thus venturing to bring under the notice of the reader a system coeval with the earliest establishment of the Saxons in Britain; a system which has existed in Kent from the foundation of the monarchy; survived the rude shock of the Norman Conquest; successfully resisted the feudal system; and been transmitted unimpaired to the present generation. It will be observed that the code, whose history we propose to investigate, is not a merely local custom or usage, confined within the narrow limits of some obscure town, manor, or lordship, but that, under the name of "The Custom of Gavelkind," it obtained universally throughout the Jutish kingdom of Kent (the earliest of those composing the Saxon Octarchy), and still prevails in the more modern county of that name, and is emphatically styled "The Common Law of Kent." 1 1 The distinction between Custom and Common Law is not merely verbal. Customs which are the universal rule of the whole kingdom form the Common Law; but particular customs, which affect only the inhabitants of particular districts, must be specially pleaded and proved-whereas Gavelkind, which is the Common Law of Kent, is judicially noticed by the judges, and there is no occasion to prove that the Custom actually exists— Many eminent men2 have written both ably and learnedly upon the Kentish customs, but, whether from the general repugnance to wade through the uninviting pages of a professed law treatise, or from the quaint and unpolished style of those who have treated the subject historically, its history is scarcely heard of out of the county, and even in that county is but very imperfectly understood. Littleton, who wrote his celebrated treatise on tenures in the reign of K. Edward IV, thus notices this tenure : "Mes en le county de Kent, ou terres et tenements sont tenus en 3 "But in the county of Kent, where lands and tenements are holden in Gavelkinde, there, where, by the custome and use, out of minde of man, the issues male ought equally to inherite, this custome is allowable, because it standeth with some reason; for every sonne is as great a gentleman as the eldest sonne is, and perchance will grow to greater honour and valour if he hath anything by his ancestors, or otherwise peradventure he would not encrease so much, &c." (Co. Littl., 140 a.) Thus we learn from the Custumal, that the Kentish customs existed in the time of the Saxons, were allowed by the justices in eyre in the reign of K. Edward I, and were again recognised by Littleton in that of K. Edward IV. it is sufficient to plead that the lands lie in Kent, and are of the nature and tenure of Gavelkind. [1 Blackst. Comm. 67, 68, 76; Robinson on Gavelkind, 4, 5.] 2 The principal authors on Gavelkind are Lambard, Somner, Taylor, and Robinson. See also Lord Coke's 1st Inst., 140 a, 175 b, 111 a; and 2 Bl. Comm., 84. 3 Chescun fitz est auxy grand gentelhome come l'eigne fitz est." By this it appeareth that gentry and armes is of the nature of Gavelkinde; for they descend to all the sonnes, every sonne being a gentleman alike. Which gentry and armes do not descend to all the brethren alone, but to all their posterity. But yet jure primogenituræ, the eldest shall beare, as a badge of his birthright, his father's armes without any difference, for that, as Littleton saith (Sectione 5), he is more worthy of blood; but all the younger brethren shall give several differences, et additio probat minoritatem, and hæreditas inter masculos jure civile est dividenda." [Coke, 1 Inst., 140 b.] This essay is intended as a historical (not a merely legal) inquiry. We therefore proceed to trace these Kentish customs to their source, so far as the scanty remains of the history of our Saxon ancestors will permit. In the infancy of nations, tradition and the songs of the bards are the only means of preserving and transmitting to posterity a knowledge of their history, and of the glorious achievements of their warriors. In a more advanced state of society, when a people have acquired a knowledge of letters, they do not trust solely to the precarious and uncertain aid of tradition and the bardic songs, but record their more important. transactions in concise annals and chronicles, which are the real foundation of all genuine history. Tradition and the songs of the bards are but uncertain guides, and afford but a glimmering light to the historian. They must not, however, be wholly rejected. He must endeavour to separate truth from error, facts from fable, and avail himself of every ray of light, however feeble, which they may afford. But when we advance to the first dawn of genuine history, and are enabled to avail ourselves of the earliest annals and chronicles of our country, our progress becomes more easy, and we have only carefully to distinguish between the mythic and historical portions of those early records. We have said that the Kentish customs are coeval with the foundation of the monarchy; and this we shall endeavour to establish. We have, however, to encounter in limine a difficulty of no ordinary character, and one which we cannot evade. An objection has arisen of no common magnitude, inasmuch as it strikes at the very root and foundation of English history. The learned editor of Mr. Mallet's Northern Antiquities, (Bohn's edition), says: Modern historical criticism, which has dissipated some of our most cherished classical illusions, will no longer listen to the old story of Vortigern seeking assistance from Saxon chieftains bearing such very equivocal names as those of Hengist and Horsa." [Note, p. 180.] Except by a few of our own writers, who, if we may judge by an article in a recent number of one of our most esteemed periodicals, seem still to cling pertinaciously to the crude notions of a bygone age on such subjects, it is no longer disputed that the Saxon invaders of England [Britain ?] belonged to the Lower Germanic, and the Jutes to the Scandinavian branch of the great Teutonic family . . . It is certain that the Jutes formed but a mere fraction of the invaders It would therefore appear that the invaders of England [Britain ?] belonged to three Germanic tribes, speaking respectively Anglic, Old Saxon, and Frisic, and to a Scandinavian tribe, speaking Jutic." [Ibid, p. 182.] The learned antiquary mentioned in the note below, in his Visit to the Graves of the Followers of Hengist and Horsa, also treats these celebrated chieftains as mere mythic heroes: "The tradition, perhaps we may call it the fable, of after ages, said that they (the invaders) were led by two chiefs named Hengist and Horsa ; that they had been banished from their own country, and that they came hither at the invitation of the Britons, who sought their assistance against their domestic enemies. The commonly-received story of Hengist and Horsa will, however, hardly bear a critical examination. And those worthies appear to have belonged rather to the mythic poetry of the heroic ages of the North, than to the sober annals of Saxon warfare in our island." [Colburn's New Monthly Magazine, 80, p. 208.] Another learned antiquary, in his preface to Bohn's edition of Bede's Ecclesiastical History, p. 24, says: "The mention of Hengist and Horsa, and the allusion to the tomb of the latter at Horstead, render it probable that the account which Bede gives of the arrival of the Teutonic tribes, and their settlement in England, was communicated by Albinus and Nothelm. It is purely fabulous, being in fact not the history, but the tradition of the Jutish kingdom of Kent." With such reiterated denunciations before me, and emanating from such respectable writers, it may, I fear, be deemed presumptuous to insist upon their utter groundlessness, and upon the authenticity of those passages of A.-S. history which 4 In Colburn's New Monthly Magazine, vol. lxxx, p. 208, from the pen of my learned and excellent friend, Thomas Wright, Esq., whose admirable writings have thrown a flood of light upon our Anglo-Saxon, Anglo-Norman, and Early English literature. |