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In a nuper obiit, 55 Hen. III, Itin. Kanc. Rot. 61, in dorso,

the jury find as follows :

"Postea totus comitatus recordatur quòd Rex Johannes, pater domini R. nunc concessit Huberto Waltero, quondam archiepiscopo Cantuariensi, et successoribus suis, quòd ipsi convertere possent terras de eis tentas in Gavelykynde in liberum feodum; et quòd ipse archiepiscopus et successores sui semper irrequisito assensu et voluntate capituli ecclesiæ Christo Cantuariensis, pro voluntate suâ quandocunq'. voluerunt hucusq'. hoc facere consueverunt."

"Afterwards the whole county find that King John, father of our lord the now king, granted to Hubert Walter, formerly archbishop of Canterbury, and his successors, that they might convert the lands holden of them in Gavelkind into frank-fee; and that the same archbishop and his successors have always hitherto been accustomed to do this at their own pleasure whensoever they willed, without the assent and will of the chapter of Christ Church, Canterbury."

And this power of the king and the archbishop to change the descent is farther recorded, as follows:

21 Edw. I, Itin. Kanc. Rot. 53.

"Totus comitatus quæsitus quibus modis tenementa tenta in Gavelykynde mutari possunt in liberum feodum, dicunt quòd tantùm ex facto et concessione regis Angliæ et archiepiscoporum Cantuariensium."

"The whole county being asked by what means tenements held in Gavelkind may be changed into frank-fee say, only by the act and grant of the king of England and of the archbishops of Canterbury."

But the more modern resolutions do not acknowledge any prerogative subsisting in the crown to change the law and manner of Gavelkind descents, by altering the tenure, even as to such lands as are immediately holden of the king. And, according to Lambard

"If landes of auncient socage seruice come to the crowne, and be deliuered out againe, to be holden either of the prince in capite, or by knights' seruice of any manor, I thinke it ought to descend according to the custome, notwithstanding that the tenure be altered." 166

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And this opinion is warranted by the opinion of the judges in Dalis, 23, where it is agreed:

"As lands in Gavelkind are of socage tenure, yet, if they are changed to knights' service, the custom is not altered, but all the heirs shall inherit."

And by Hale, chief justice :

"Even in Kent, if Gavelkind lands escheat, or come to the crown by attainder, or dissolution of monasteries, and be granted to be holden by knight's service, or per baroniam, the customary descent is not changed, neither can it be but by act of parliament, for it is a custom fixed to the land." 167

And this brings us to―

THIRD-The Disgavelling Statutes in the reigns of Hen. VII and VIII, Edw. VI, Q. Eliz., and Jac. I.

The several statutes made for this purpose are 31 Hen. VIII, cap. 3, and six private acts (not printed in the statute books), one in 11 Hen. VII, for disgavelling the lands of Sir Richard Guldeford, another 15 Hen. VIII, for the lands of Sir Henry Wyat only, another 2 and 3 Edw. VI, another 1 Eliz., another in the eighth year of the same reign, and the last in the 21st Jac. I.

THE NAMES OF THOSE PERSONS WHOSE LANDS IN KENT ARE DISGAVELLED

BY THE ABOVE-MENTIONED ACTS OF PARLIAMENT.

A.D. 1494, 11 Hen. VII, cap. 23.

Sir Richard Guldeford.

A.D. 1522-3, 15 Hen. VIII, c. 19.
Sir Henrie Wiat, knight.

A.D. 1539, 31 Hen. VIII, c. 3.
Thomas Lord Cromwell.
Thomas Lord Burghe.

George Lord Cobham.
Andrew Lord Windsore.
Sir Thomas Cheyne.
Sir Christopher Hales.
Sir Thomas Willoughby.
Sir Anthonie Seintleger.
Sir Edward Wootton.
Sir Edward Boveton.

Sir Roger Cholmeley.

167 Hist. of the Common Law, 6th edit. p. 312.

Sir John Champneys.
John Baker, esquier.
Reignold Scotte.
John Guldeford.
Thomas Kempe.
Edward Thwaitis.
William Roper.
Anthonie Sandes.

Edward Isaac.
Perciuall Harte.
Edward Monyns.
William Whetnall.
John Fogge.
Edmund Fetyplace.
Thomas Hardres.
William Waller.

Thomas Wylford.
Thomas Moyle.

Thomas Harlakinden.

Geffrey Lee.

James Hales.

Henrie Hussey.

Thomas Roydon.

A.D. 1548, 2 and 3 Edw. VI, c. 1.

Sir Thomas Cheyney.

Sir Anthonie Seintleger.
Sir Robert Southwell.
Sir John Baker.

Sir Edward Wootton.

Sir Roger Cholmley.

Sir Thomas Moyle.
Sir John Gate.

Sir Edmund Walsingham.

Sir John Guldforde.

Sir Humfrey Style.

Sir Thomas Kempe.
Sir Martyn Bowes.
Sir James Hale.
Sir Walter Hendley.
Sir George Harpar.
Sir Henry Isley.

Sir George Blage.
William Roper.

Thomas Wylforde.

Thomas Harlakenden.

Thomas Colepeper of Bedgebury.
John Colepeper of Ailesforde.
Thomas Colepeper, son of the
said John.

William Twisenden.
Thomas Darrell of Scotney.
Robert Rudstone.
Thomas Robertes.
Stephen Darrell.
Richard Couarte.
Christopher Blower.
Thomas Hendley.
Thomas Harman.

Thomas Louelace.
Reignald Peckam.
Herbert Fynche.
William Colepeper.
John Mayne.
Walter Mayne.

Thomas Watton.

John Tufton.
Thomas White.
Peter Hayman.

Thomas Argal.

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The words made use of by the above statute of 31 Hen. VIII, cap. 3, which is intituled "An Act changing the Custom of Gavelkind," are

"That as well all the lordships, manors, lands, tenements, woods, pastures, rents, services, reversions, remainders, advowsons, and all other whatsoever hereditaments set, lying, and being within the county of Kent, of the which Thomas Crumwel, knight of the honourable Order of the Garter, Lord Crumwel of Wimbledon, lord privy seal, [and the others] or any of them, is or be seised to his or their own use or uses in feesimple or in feetail, the which now been of the tenure and nature of Gavelkind, and heretofore have been departed or be departible between heirs males by the custom of Gavelkind, shall from henceforth be clearly changed from the said custom, tenure, and nature of Gavelkind, and in no wise hereafter be departed or departible by the said custom of Gavelkind between heirs males, but shall remain, revert, abide, descend, come, and be after and according as lordships, manors, lands, tenements, and other hereditaments, do or may descend, remain, revert, abide, come, or be according to the common law of this realm, and as other manors, lands, and tenements being in the said county of Kent, which never were holden by service of soccage, but be and always have been holden by knight service, do descend, remain, revert, abide, come, and be; and in like manner to descend and be descendible, remain, revert, come, and be inheritable to the heir or heirs, after and according to the said common laws of this realm of England. And that all and singular the said lordships, manors, lands, tenements, and other hereditaments, with the appurtenances of the said Lord Crumwel [and others], or of any of them, and which before the making of this Act have been of the said nature and tenure of Gavelkind in the said county of Kent, shall from henceforth be accepted, taken, inherited, deemed, and adjudged to be like as lordships, manors, lands, tenements, and other hereditaments, at the common law of this realm, and in such manner and form as if the same manors, lordships, lands, tenements, and other hereditaments had never been of the said nature of Gavelkind. Any usage or custom in the said county of Kent heretofore had, accepted, or used to the contrary notwithstanding."

And in the statute of Edw. VI there is a clause that the lands should be disgavelled, and should from thenceforth be, to all intents, constructions, and purposes whatsoever, as lands at common law, as if they had never been of the nature of Gavelkind, and that they should descend as

lands at common law; any custom to the contrary notwithstanding.

It appears by the statute 18 Hen. VI, cap. 2, that at that time the number of military tenants in this shire was very inconsiderable, the Act taking notice that there were within the county of Kent but thirty or forty persons, at most, which had any lands or tenements out of the tenure of Gavelkind, because the greater part of the county, or well nigh all, was of the tenure of Gavelkind.168

The quantity, however, of lands exempt from this custom, as the quality of partition, was much increased by the disgavelling statutes. But the presumption of law, that all lands in this county are Gavelkind is a great friend to the custom. And if we consider the difficulty complained of even in the last age, and now grown much greater, of proving what estates the persons comprehended in the disgavelling statutes were seised of at the time of making those Acts, together with that of showing what lands were formerly knights' service, which is a difficulty increasing every day since the abolition of military tenures, and the expense attending the search of records for evidence of this kind, I believe I should not seem much mistaken were I to assert that there is now near as much land in this county subject to the control of the custom, as there was before the disgavelling statutes were made.169

SEC. XVIII. "E clament auxi, que si nul tenant en Gauylekende reteine sa rent, e son seruice del tenement quil tient de son seigneur, querge le seign. per agard de sa court de treys semeynes en treys semeynes truue destresse sur cel tenement tant que a la quart court, a totefet per tesmoynage: et si dedens cel temps ne trusse destresse en cel tenement per queux il puisse

168 See this statute, post p. 255.
169 Robinson on Gavelkind, p. 111.

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