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Notes and Queries on the Custom of Gavelkind. 133 I. Notes and Queries on the Custom of Gavelkind in Kent, Ireland, Wales, and S

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Notes and Queries on the Custom of Gavelkind. 133 I. Notes and Queries on the Custom of Gavelkind in Kent, Ireland, Wales, and S NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 133 I. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND IN KENT, IRELAND, WALES, AND SCOTLAND. BY ^ENEAS J. G. MA OK AY, LL.D., Q.O., F.S.A. SCOT., SHERIF FIFF FO E AND KINKOSS. e presenTh t papeattempn a s ri treao t t problea t Anciene th mn i r o t Archaic Law of the British Isles. I have called it " Notes and Queries 011 the Custom of Gavelkind," and the queries will be more important than the notes. Gavelkind is admittedly an unsolved problem. The philological histore word e th lega s th welf a yo , s l a l e historth f o y custom, is either keenly contested or abandoned as insoluble. Even if insoluble, it will be found to present some interesting points of anti- quarian investigation beyond the main query involved. That query is whether Gavelkind is a Celtic or Teutonic custom, or one of those customs called r a wanbettefo ,f o t r word, Aryan, existing e th in wide famil f raceo y s which included both Celtd Teutonsan s , Greeks and Romans, and, indeed, the ancestors of almost all European and some Asiatic nations. t proposno o d enteo e t I r here, save incidentally widee th n r o ,ethno - logical inquiry o limi t e presen t th t bu , t Note Gavelkindo t ss ha t i s a , existed or still exists under that name within the British Isles. Although the same, or a similar, custom very probably existed in and beyon continene dth f Europeo t e namth , e Gavelkind, with certain special incident e customth f o s , appear o havst e been confine Greao t d t Britain and Ireland. problee Th f mGavelkino apparene on s dha t advantage over other prob- lems in Ancient Law, that we can study it in several survivals, one of which Gavelkine ,th Kentf do , still exists. t thiBu s1 perhaps increases rather than diminishe s natural i s difficulty t sit i usuall d r an ,Fo y. safer, arguo t e fro know e lese mth th s o knownnt , and, therefore assumo ,t e eth Kentish Gavelkind t stili e normas la th , existse b l o fort , m from which othee th r varieties, Irish, Welsh Scottishd an , , were derived whicy b r ho , 1 Robinson on Gavelkind, 5th edition, by Charles J. Elton, Q.C., and Herbert J. MackayH B.L L ,, Barrister-at-Law. London : Butterwort Co.h& , 1897. 4 13 . PROCEEDING E SOCIETYTH F O S , MARC , 189814 H . they mus interpretede b t e hert war eBu e .dealin g wit hquestioa f no prehistoric times, the origin of a custom which existed before history or writtens la t musi wwa remembered e b t an , d tha l so-calleal t d survivals are not merely survivals, but survivals with modifications and accretions which obscure the original form of the ancient custom. For this purpos e oldeeth r e custoformth f Irelandn o msi , WalesKentn i d ,an , e earliesth t a ts periodwa t e i mor - ar s exists, w a im e t no t bu ,i no s a t portant. Gavellcind may be described with sufficient exactness for the pre- sent purpose, yet with sufficient generality to cover all its known varieties in the British Isles, as a custom by which several persons suc- ceed to the possession of land on the death of one, although the suc- cession may have and probably did originally take place on other events that ultimateli s na deatht Bu y. assume concrete dth e for whicy mb t hi is now known, it necessarily implied the two ideas of partition and suc- cessio consequencn ni deatha o f understoodeo S . e oppositth s i t f i ,eo custoe th m called Primogeniture, fro s mosmit t usual case whicy ,b e hth first-born son, if there were sons, succeeded on his father's death to his righte othe e th exclusion landi th sl r al o childrent , f o n s lanA .d n almos ani s useit d e l stagear sal t f civilisatioo s e mosth n t coveted kind of property, the custom which regulates its succession is one of the most characteristic reflections of the condition of society, and one of the most important legal institutions. It does not easily change. If it changes eithes i t i ,n consequenc i r a revolution e graduaf th o e y b lr o , modification and transmutation of all things to which even customs yield A partitio. r distributioo n e righth o possest f t o n s e anus d certain lauds betwee largena r smalleo r r group t alwaybu , a pluralits y of persons, a tribe, a sept or clan, a family, a village or township, seems very generall havo yt e preceded bot righe h th f exclusiv o t e ownershid pan the custom of succession by primogeniture. Within the British Isles three varieties are known by the same name of Gavelkind, the Irish, the Welsh, and the Kentish. In Scotland the traces of this mode of suc- cession are slender and indirect, though it has been sometimes stated, and it is not improbable, that it at one time prevailed amongst the Scottish Gael. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 135 The periods during which there is authentic evidence of the three varieties of Gavelkind deserve special notice. The Irish can be observed from the date of some of the earliest Irish laws, the most ancient part f whicso centuriesh h 6t hav d t ean bee bu ,h n5t e dateth n di may be some centuries later, down to the reign of James I., when it e wadecisionth se Englis f th abolisheo f e o s on h y judgedb s reported by Sir John Davis. The Welsh can be also traced back to the earliest law f Walesso hav w e 10t,th no er which llt ho f e themo w h e s a ,ar , centuries. It was modified by a statute of Edward I., but existed down to the statute of Henry VIII., by which it was abrogated. e Kentis observee Th b n hca d from befor e Normath e n Conquest down to the present day, and still exists, though its extent has been re- stricted through disgavelliu s g fors it bee actsmha d n an , much modi- fied. The presumption in Kent is still in favour of it, and it has been thought worth while to reprint last year the standard legal work e subjecoth n Robinsony b t custoA . m whic s thuha h s existed from before the dawn of history to the present day has proved its tenacity, but is not unlikely to have undergone variations to preserve its life. In Ireland and Wales it was admittedly a very ancient Celtic custom prio writteo rt n laws Kenn I . t alon mattes i t ei f controverso r y whether it was of Celtic, Roman, or Anglo-Saxon, which would there mean Jutish, origin. difference Th e betwee e threnth e varietie thue b sy statedsma . The Irish Gavelkind was a very complicated, and not yet fully under- stood, method of succession to and partition of the land held under this ownern a a pos t t -no bu , s custoholdere deate wa th th o f n mho o wh , sesso r lifeprobabld fo ran , y originally a onlter r e f yearsmyo fo th n o , expiry of which, apart from death, a redistribution took place. It did not apply to the land of the kings and chiefs, which passed by the custom of Tanistry to the eldest and worthiest of the kin. But it applie e holding o mosth t de member f th o te tribf o th s r septef o so , l and probably e timelane on th moso n Irelant dt i , f a , o tt hel y no ddb Tauistryo t s A e Spenser'1 se , sStatee View th f Ireland, o f o Dublin, 1633r Si ; John Davis'a Reports of Cases of Law in the King's Courts in Ireland, Dublin, 1615, folio, in French ; translated into English, Dublin, 1762, 8vo. 136 . PROCEEDINGS OF THE SOCIEa'Y, MARCH 14, 1898. chief howeverkingsis, or s It . mistaka , e to'suppose that even verin y early times there was not separate and private ownership of land, in the case of members of the tribe, which was not subject to the custom of • Gavelkind clearls i s a , y show many nb y passage e Brehoth n i sn laws.1 "When the death occurred of a Gavelkind possessor, his land subject to the custom did not pass to his children or to his nearest of kin, but reverted to the sept to which he belonged, and a new partition or redis- tribution was made, not only of his land, but of the whole land of the sept held .by Gavelkind possessors. At the date of the abolition of the e custobeginninth e 17tn th mi hf o gcentury, 2 this redistribution was made by the chief, apparently at his pleasure, but with some regard to what Sir John Davis, who has preserved the most exact account we t thia havt si periodf eo , call "e antiquitsth claimantse th y f "o .
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