against Abraham Thornton, for the murder of his said sister, of which offence the defendant had been tried and acquitted at Warwick summer assizes preceding, under circumstances of strong suspicion (though not absolutely conclusive) of his having ravished, and afterwards thrown her into a pit of water, where the body was very recently found. The Appellee, upon being called upon to plead, pleaded "Not guilty, and I am ready to defend the same by my body;" and thereupon taking his glove off, he threw it upon the floor of the court. The Appellant afterwards delivered in a counterplea, to which there was a replication, a general demurrer and joinder therein. After very long and elaborate arguments, the Court of King's Bench held that the appellee had a right to wage his battel, the appellant not having brought himself within any of the established cases, which entitled him to decline the wager of battle; namely, where the appellant is an infant, or a woman, or above sixty years of age, or where the appellee is taken with the mainour, or has broken prison, or where great and violent presumptions of guilt exist against the appellee, which admit of no denial or proof to the contrary. The appellee was afterwards discharged.194 It now only remains to add a few observations to those which we have already made in our commentary upon the eleventh section of the Custumal (ante, p. 156-160), in regard to suit and service by Gavelkind-men at various courts. And first, as to Section VI, which we have referred to this place. By that Section (VI) the Kentish men claimed that those who held only lands in Gavelkind were not bound personally to attend the eyre (the courts of the justices in itinere), except only by the borsholder and four men of the borough, but in the case of cities and towns by twelve men. 195 194 See the whole proceeding fully reported in Ashford v. Thornton, 1 Barn, and Ald. 405. 195 Another indication of the antiquity of a jury of twelve men. But this twenty-first Section shows, however, that tenants in Gavelkind in general were bound to attend to take the Great Assise, in lieu of twelve knights, as elsewhere; and that, ultimately those who held Gavelkind lands to the amount of twenty pounds 196 per annum were liable to be returned in attaints, in lieu twenty-four knights, as elsewhere. SEC. XXII." Ces sont les usages de Gauylekend e de Gauylekendeys en Kent, que furent deuaunt le Conquest, e en le Conquest, e totes houres ieskes en ça.' The Custumal concludes with asserting that these are the Customs of Gavelkind, and of Gavelkind men in Kent, which had existed before and at the Conquest, and ever since till that, the time of their allowance by the Justices in Eyre, in the 21st of K. Edw. I. And it tends in some measure to confirm the fact of such judicial allowance of our Gavelkind customs, when we find it averred in the preceding Section (XXI) that the charter of K. Hen. III was at that time, in that same year, in the custody of Sir John de Norwode (one of the king's justices), and by him probably then exhibited, that it might be included and combined with the more antient and primeval Gavelkind customs of Kent. 196 These were gentlemen of such estate as rendered them liable to take upon themselves the honour of knighthood. END OF THE COMMENTARY ON THE CUSTUMAL. OF THE CUSTOM OF KENT ΤΟ DEVISE GAVELKIND LANDS. IN N our commentary on Section V of the Custumal (ante, p. 92) we laid before the reader a general tabular view of the leading distinctions between the tenure of lands in Gavelkind, and at common law-viz. : By the Common Law of Kent. (Gavelkind.) V. WILL.-Gavelkind lands have always been deviseable. By the Common Law of V. WILL.-At common law, lands It may probably have excited the surprise of the reader, that, in the course of our commentary upon the Kentish Custumal, we have not noticed the testamentary disposition of Gavelkind lands. The fact is, that in the Custumal no mention is made of any such Custom, and its existence, therefore, has been formerly warmly contested by antiquaries. And it has even been asserted, that no mention is made of it in Lambard's Perambulation. But this latter assertion is inexact; for in p. 491 of his Perambulation, voce Mepham, that most learned antiquary writes thus: "Upon the auncient fourme of a Testament.-To the ende that it may appéere what the auncient forme and phrase of a testament was: howe the husbande and the wife ioyned in making their testaments: howe landes were deuisable by testament in olde time: by what wordes estates of inheritaunce were wont to be created: howe the lordes consent was thought requisite to the testament of the tenant and howe it was procured by a guift of heriot, which, as Bracton saieth, was done at the first magis de gratia, quam de iure. Furthermore, howe this town of Mepham, and sundrie others came at the first to Christes Church, S. Augustine, and Rochester: and finally, that you may know, as well what aduancement to gentrie was then in use, as also what weapons, iewels, and ornaments were at that time worne and occupied, I will set before your eye the last will and testament of one Byrhtric and his wife,197 which was a man of great wealth and possessions within this shyre, and had his abiding at Mepham more then sixe hundreth yéeres agoe." Robinson says "This testamentary power was a very valuable privilege before 32 Hen. VIII, when it was not in the power of the owner of any lands in this kingdom to alien them without a special custom of the place where they lay, by any act to be ambulatory till the time of his death; but he was put to depart with the legal estate, by making a feoffment to his own use, or to the use of his will, and that use he might devise; an invention too of later times, and attended with some inconveniences. Nor did this cease to be a matter of importance on the general liberty given by the statutes of wills to devise socage lands by will in writing; for these statutes, being in the affirmative, were holden not to take away a custom of devising (Co. Litt. 1116, 3 Rep.35), and consequently the assistance of the custom was still wanted to make a will of socage lands when joined with a devise of lands holden by knights' service in capite, good for the whole of the socage, which otherwise had been void for a third part (3 Sid. 153), and likewise to make effectual devises by parol; for I take it that the custom was claimed even for them. (2 Sid. 154, Somn. 161.) But this question is now rendered entirely useless by 12 Car. II, c. 24, which has reduced all lands to common socage; and the statute against frauds and perjuries (29 Car. II, c. 3, sec. 5), which enacts "That all 197 See this Will, post p. 287. devises or bequests of any lands or tenements deviseable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.' " 198 And now, by Stat. 1 Vict. cap. 26, "For the Amendment of the Laws with respect to Wills" (A.D. 1837) sec. 9, it is enacted "That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. Robinson continues (p. 299)— "But as many things grow matters of greater curiosity by ceasing to be of use, I shall briefly take notice of the most material arguments and authorities which occur in the books either for or against the custom.19 199 ARGUMENTS AGAINST THE CUSTOM. I. That it is a rule in law that an assise of mortdancestor lies not of lands devisable by will; though it be not alleged by the plea that they are actually devised. (Fleta, 296 b, 4 Ed. 2; Fitz. Mortdancestor, 39; 22 Ass. pl. 78, F.N.B. 196 I.) Yet it appears by Bract. f. 2766, and by several ancient records cited in Somner, that an assise of mortdancestor lies for Gavelkind lands in Kent. (Somner, 152.) II. That it is evident there was within the City of Canterbury a special custom to devise lands; but there needed no such custom if all Gavelkind lands in Kent had been devisable (Somner, 152), the city of Canterbury having, within time of memory only, been separated from the county of Kent. 198 Robinson on Gavelkind, p. 298. 199 See also Somner on Gavelkind, Proposition V, pp. 152-172. London, 4to, 1726. |