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 . e "Th inferior tenantries, sayse "h , " were partible e malee amonth th f l o s gal sept, both bastards and legitimate, and after partition made, if any one of sepe th t died t divideportios no hi , s dnwa amon chiee th s sons t fghi bu , of the sept made a new division of all the lands belonging to that sept, d gavan s epart hi ever e , accordinon y s antiquity.hi o t g " Whether " antiquity " here means seniorit agen i yr neare o , r relationshia o t p common ancestor, doet appearno s . This custom t existei e s th a , t da date.o s abolitionit f , had procesy b , f timeso , very much altered fros mit for recordes ma Brehoe th n di n law, probably originally compilee th n di 6th century, but by frequent glosses and commentaries greatly altered before it assumed the form in which we now have it even in the earliest MSS. This earliest form of the custom, as described in these laws, is so comple d difficulxan understando t t , that some person e disposear s o dt believ havo t t ei e bee nfictioa r inventiono e e Brehonsth th t f no Bu . inventio f sucno elaboratn ha e system, whic quits i h e clearly staten i d words, however difficult their interpretatio e distancth t a es u ofo nt . SQ many centuries, woul mora e db e difficult hypothesis than ths e it fac f o t actual existence at a remote stage of tribal society. According to the e Brehotexth f o t n law partitioe th , lan e amongss th dwa f no t seventeen member e septwero th wh f e,o s divided into four classe r groupso s .

- . 1 The Senchus Mor, Ancient Laws of Ireland. 2 The Case of Oavelkind, Davis's Reports. . . . _ '. NOTE QUERIED E CUSTOTH AN S F N GAVELKINDMO O S 7 13 .

These were the Geilfine}- which had five members, and meant, according to Mr Whitley Stokes, the Hand group from the five fingers of the 'hand. The Deirbhfine (the true), the larfine (the after), and the Indfine (the end or final) groups, each consisting of four members. It would also appear certain e younges thae Geilfineth th s t r wa junioo t r group, and the Indfine the most remote from it. But, apart from these points, there is the greatest controversy between those who have studied e mod th e subjec f divisionth eo o t s a t . Eve e differenth n t editorf o s e Brehoth n laws differ from each othere vieTh w. take Dy b nr Joyce, one of the commissioners under whose auspices these laws have been published, and who is well known for his sound Celtic scholarship, may be given not as certainly correct, but as the most easily understood. " If any one of the groups," he says, " fell short of its full number, through death or otherwise, those of the group that remained had still e whole propertth th f eo f thayo y propertt an group f s lefI o t y.wa t the organisation it went to 'the Geilfine solely. If any group became extinct, its property was divided amongst the other groups, according to rules very distinctly laid down in the law. Thus, if the Geilfine, became extinct itf o s, -}s propertfth yDeirWifine,e wenth o t t ^-thlarfine,e th o st an DeirWifinee d Indfine. th e jigt th f I o ht became extinct, ^-wens fth o t the Geilfine, y%thlarfine,e Indfine;e th ^t d th o therd t s an h o e t an ear similar rule meeo t s e extinctioth t e othe f eacth no f rho groups. severae "Th l groups might contain less t coul t contaibu , dno n more, tha numbere nth s given above. Suppose, then e group, th tha l tal s were full, and that a new member was born into the Geilfine. In this case the oldest of the Geilfine passed into the Deirbhfine; the oldest of the Deirlhfine int e larfineoth e e larfineoldes th th ; f o t int e Indfineoth ; ane oldese Indfinedth th e f organisatioo tth f passeo t ou d n altogether, and becam ordinarn ea y unattached membe e tribe.th f o "r Both this form of Gavelkind, which may be taken to be the oldest known, and chiee Th f passage Irise th hn s i lawstheso t s a e, divisiondivisionse th f o e f so ar , 1 e tribeth . Ancient Laws, t seq.e . 1 284-29 pp 33 . 1879260; iii p . . . p .. n ,iv i , 5 ; The Book of Aicill. e latr Richey'Th eM s Introduction, iv..p. xlixn , giveow s hi s view and that of other modern writers as to the Irish custom of succession ; and also references to other passages in the Ancient Laws where these divisions are allude. dto 8 13 PROCEEDING E SOCIETYTH F O S , MARC , 189814 H .

tha t d assumewhicha t i hd s abolitio it prioe beginnin th o t r n i n g e 17toth f h century describes a , r JohSi ny d b doub Daviso n e tar , very different from the equal division amongst sons which we are accustomed to associate with the Gavelkind of Kent. Still they resemble it in bein gcommoa r custoo w f successiomnla o n which necessarily implied partition amongst males d exclude an e ,las th e wilt f th dpossessoro l . abolitioe Th f thino s e custoEnglisth y mb h judges proceeded upona well-known principle of English law, that a custom will not be sustained e courtsbyth , however general f i deeme, d unreasonabl e judgesth y eb . Irish Gavelkind was held unreasonable by the judges of James I. in Ireland upon four grounds : (1) the mode of partition which made rights of property uncertain and hindered improvement, (2) the constant shift- ing of the possessors and the exclusion of women from any right of inheritance e admissioth ) (3 , f bastardno sharo st e along with legitimate non-existence th children ) (4 d e widow'th an , f eo s dower. e WelshTh Gavelkin s mucdwa h simpler s earliesIt . t known form e Anciene founth b o n t i d t s i Law f Wales,o s d als n an 1i somo e Extents or Surveys of Welsh, land2 of the time of Edward II. Land subjec o thit t s custo s dividemwa d equally amongs e south t s legitimate or bastard, and their male descendants, taking their parents' share t femalebu , s were excluded e widowdowero th e n d d Th an s.ha , right to a share descended to the fourth degree8 of the kin, and the shares were equalise n eaci d h degree t wher bu ;y membe an ea neare f o r r degree existe e mordth e remote were excluded r somFo e. purposess a , for paying fine r slaughtefo s d othean r r injuries e nintth , h degref eo kin was recognised, and probably at an earlier date had also a right to shar e lan eth correlativs da o theit e r finee obligatioth .y pa Thre o nt e and its multiple nine were favourite numerals with the ancient Cymry, which four was not, and the reduction to four may probably have been

due to some extraneous influence hostile to the custom, and desiring to Ancient1 Laws and Institutes of Wales, revised edition, 1841, i. pp. 167-178,

Venedotian Code. 542-548pp . i ; , Dimetia . 760-762n pp C'od . i e; , Gwentian Code. Seebohm2 , Frederic, The Tribal System in Wales, 1895, ]>p. 31, 33, 73-78, and Documents in Appendices B and C. 3 But at an earlier date, probably to the ninth degree, Seebohm, p. 78 et seq. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 139

limit, thoug t stronhno g enoug e sharo abolisht Th f sons o e . swa hit called wele or giuele, from a word signifying a bed. The smaller shares of remote descendants was called gafael or gavel, which came to mean a distinct measure or share of land.1 This without doubt is the origin e Welsoth f h gavelkind, whic d nothin o witha e d hAnglo th ho t g - Saxon gafol (tribut r payment),o e r witpaymeny o 2 an h r rendeo t r fo r e lanth d held unde e customth r t referre bu ,s beinit o dt a systeg f mo partition. Edwar e Statututh d y I.b , m Wallia 2 Edware(1 d I.), pre- served partition as the rule of succession, but altered its mode by excluding bastards, admitting females failing males, and introducing dower. The points so altered were the very points which the judges of James I. held unreasonable in Ireland three centuries later. The custom when modified became practicall partitioya n amongst sonsd an , failing sons daughters, differing little from the gavelkind of Kent. Henry VIII. abolishe custoe dth m altogethe statute th y eb r Henry VIII. d 128 sees, an d declare c6 26 ,.an 9 . d that successio lano nt Walen di s was to follow the common law of England, which was the rule of primogeniture. It appears, therefore, that gavelkind was modified in Wale 1284n si , and abolishe abolishes wa 1544n d i d Irelann an di , n di 1606. It does not seem probable that the name for either the Welsh or Irish custom should have been borrowed from Kent, especially as there are Irish and Welsh words, as we shall see presently, from which gavelkind ma derivede yb whicd an , h represent much more exactl s reayit l charac-

r tha te e Anglo-Saxoth n n gafol, whics supposei t i h o representt d . Lambarde, in his Perambulation of Kent, 3 first published in 1576, shortly after the statute of Henry VIII., expressly says not that the Welsh ters borrowemwa d froe Kentishmth t thae "bu ,th WeMtmen, t o wh latelybutnow lost this custom, theirin do language call this discunt Gicele,theirin and Latin lectus progenies gavellaet theirof word own Gefeille, which signified twins or such as be born together, because, they

inheritdoall together." Glossary1 Anciento t Laws, voceb su "Gavael, Seebohmd "an . 31-33pp , . • Glossary in Dr Reinhold Schmidt, Die Gesetze die Angel-Sachsen, Leipzig, 2 1858, in which it may be noted the word gafolkinde does not occur amongst his long lis citationf o t s fro Anglo-Saxoe mth n laws. Perambulation of Kent, reprint of 1826, p. 475. 3 0 14 PKOCEEDING E SOCIETFTH F O S , MARCH 14, 1898.

The Kentish Gavelkind was, at the earliest period to which wo can recordtracn o t ei , shortly befor e Normaeth n Conquest stild ,an l remains, a divisio e lanth df o nhel d undee e e custoth deatth th rf o n hmo possessor, equally amongst the sons or their representatives, and failing sons amongs e daughterth t r theio s r representatives e casth e n i o s d an , of males and females in other degrees. It also recognised a right of dower of the widow in one-half of the land instead of one-third, which became the common law rule. In these points it did not much differ from common Socage tenure, although it will be seen presently it did in others, 'and it avoided the points which the English Judges in Ireland declared unreasonable t possiblno t i es I tha. t havy thiema s been because the Anglo-Saxons while retaining the name, had modified a custom already prevailing amongs e Celtsth t , when they occupied the Kentish Kingdom ? From the above statement of the three varieties of Gavelkind, it appears that 'th ee most Iristh s i he ancientWelsh th d an , , even i n its oldest form known, a less ancient, but still ancient, species of the sam r similao e r Celtic custom, derived fro ma tim e when both races live triban di l societies admissioe Th . f bastardno s proves both customs were pre-Christian. This is not inconsistent with, .indeed probably means, that they were children of a union, sanctioned by Celtic usage though not by the Church. It has been remarked by Mr Willis Bund1 that many of the earliest Welsh Saints were illegitimate. e KentisTh h custo f Gavelkinmo havy ma de been onl n yfora a f mo equal division of land amongst the nearest kin which seems to have obtained amongst man yn mani race d y an s places before Feudalism introduced Primogeniture particulan i d tenure ,an th n ri e called Socagn ei England in its oldest form as well as in the allodial tenures of the Teutons, of which the Udal tenure the Scandinavians brought to Orkney and Shet- alsy o ma example n havlant a i s t di e beeBu . brokena n dow r morno e recen d modifiean t de Celtith for f mo c Gavelkind derived froe th m Briton f Kento s t modifiee bu successiv, th y b d e conqueste th f o s Romans Normanse e Jutesth th , d t deserveI an , . s not thin ei s connec- tion, that amongs Bretone th t f Brittanyo s wero t conquerewh no e, d

Willis Bund, The Church oj Wales, 1897. 1 NOTE QUERIECUSTOE D TH AN S F N GAVELKINDMO O S 1 14 . e Teutonsth y t b onl bu ,thy yb e Norsemen n equaa , l divisio f lanno d amongst sons prevailed until abolishe n Ordinanca y b d f Geoffreyo e , Ear f Kichmono l Dukd dan f Brittanyeo e yea wifs th righn ,i rhi n i ef o t 1180, and was abolished then only in the fees of nobles.1 e questio e e worTh origith th f df n o o GaveUcind must next engage our attention. n CelticI , Irishe d o part"Welsth an tw f e ,meanino sth e h th f o g word, singly or in combination, presents little difficulty. Gavel is the Irish e WelsGablialth d han Gafael, which mean shara s r divisioeo f no land. Kind Iriss i h Cine, Scotch Gaelic Cinneadh r Cinne,o Welsd an h Genedl derived from a root Cinn, to grow or increase, and meaning the increas r growteo famila f hsuccessivo y b y e generations unti t becami l e a clan. The Anglo-Saxon Cynn, from which English Kin, is of course the same t thougbu , hcongenera Celtie , cannoth e roo f th co t e Cine.e b t Th Celtic Cine denoted, apparently, a smaller group than fine meaning a tribe, as that word in its turn denoted a smaller group than tuath,,& countr e peoplr districth yo d e an tinhabitin migho wh dividee , b t git d into several tribe mand san y e combinatiosept th r clans o o s S . n Gavel- kind would mea sharine nth divisior g o lane th df no amongs sepe r th t o t clan. We know it did mean this in Ireland, though in Wales and e combineth f o Scotlan e dus e roowore rares f Gabhal,dth o Th twa d . a verb s i , meanin o takegt t s derivativesomit bu , f eo s early acquired meanine th f thinggo s which divide r brancheo d t froou d m commoa n source or root as Gabhal, or G-oWial,^ the Scotch Celtic form meaning a fork. This word was specially applied amongst the ancient Celts to the post or forked tree which supported the roofs of their wooden huts;3 Gavelock, prongea d spea piker ro , which passed int medisevae oth l military vocabulary ; Gobhloc is still used in Irish for the fork of wood with which 1 Favin, Theatre d'Honneur, . 906p . i . Barrington, Observations Statutes,e th n o p. 123. 2 Gabhal d OobJialan answe o different r t dialect r stageso f Celtico s . This con- nectio s beenha n doubted t goobu , d Irish scholars derive both froe vermth b gabJi (to take). Joyce, Irish Place Names, 1st Ser., p 510. 3 The Rooftree was a common toast in the Highlands of Scotland, Burt's Letters, ii. 40 ; Carr's Caledonian Sketches, p. 405 ; and in Wales the first toast '' after dinner in a Welsh mansion is ' the Chief Beam of the House.' " Clark's Travels, ii., sect, ii., p. 501, Note. 142 PROCEEDINGS OF THE SOCIETY, MAECH 14, 1898.

boys snare birds ; Gaveleger, also used in that military vocabulary, though more rarely, for the quartermaster who laid out the divisions of a camp ;J Gable, the division wall between two houses ; and Gaff, the hook or cleek use takinr dfo e water e gth most salmof Th o . t ordinarnou y meaning of Gabhal modern i n Gaeli taca r leass pieca ci o k f f o elaneo d taken fo r e instrumenrentth r o , whicy s takenb ti t i hequivalenn a , e th o tt Anglo-Saxon word Holding. A cognate word Gabhalta means spoil or things take warn ni . onls i t yI whe come nw Kentisho et Gavelkind that ther serious i e s doubt or dispute as to the meaning of the word. Three etymologies were suggeste e oldeth ry db Englis h Lawyers. Cok d otheran e s took the view that it meant " give to all children (kynd)," which was said to be taken " from the Dutch," meaning German. This was a fanciful deriva- before ag n etioa etymologf no becomd yha inapplicabls scienceea wa t I . e t ocustoa m t giv whiclane no e th allt o onld t h di bu mal, o y t e children. Others derive t di fro e Anglo-Saxomth n Gafol, tribut e sensth f n eo i ren r rendero t a wor, d apparently cognate wite mediaevath h l Latin Gabellum, d Frencan h Gabelle, e sensth f reneo n i r tax o t . This was, e commoth an s i d n English opinion fewA t til. ,bu l latel yvera y few, lawyers, chiefly thos kneo e Welsewh w th h custom, accepte e Celtidth c derivation from Gavel, a share or portion of land. Lambarde in his Perambulation of Kent, written in' 1576, who ought to have been the best authority as a Kentish man, and the earliest writer on the custom, states all three derivations without expressing a decided preference for any. The controversy was brought to an issue by two writers in the end of the 17th century. Mr Somner in his Treatise on Gavelkind? publishe n 1660di , argued with much learning derived from old Kentish documents in favour of the derivation from Gafol in the sense of rent or render, and as a consequence for the Teutonic origin. Mr Silas Taylo n 166ri 3 state e cas dth favouderivation e ei th f o r n from Gavel, a share or holding of land divided amongst the kin, and conse- quently for the Celtic origin.3 He continued until recently an almost

1 Monro's History of Mackay's Expedition. TreatiseA 2 Gavelkind,n a Williay b m Somner, London, 1660. 3 The History of Gavelkind, by Silas Taylor, London, 1663. NOTE D QUERIECUSTOE SAN TH GAVELKINDF N MSO O 3 14 .

solitary dissenter from Somner's orthodox view. That vie s wacceptei d by Mr Charles Elton, the Editor of the 5th Edition of Robinson on Gavelkind, published in 1897, as it had been by Robinson himself. It s alsi o apparently accepte y Messrb d s Polloc d Maitlanan k n theii d r recent learned History of English Law1 though they do not profess to have re-exaraine e questionth d d rathean , r shrink from touchiny an g legal custom or institution which may possibly be Celtic. It has been adopted by the Editors of the New English Dictionary, to one of the sub-editors of which, Mr Craigie, I am indebted for an acute criticism of this paper. On the other hand, Sir Henry Maine2 and Mr Herbert Lewis3 favour the Celtic origin, and so to a certain extent does Mr e settlee authoritb th o t y db e Seebohm.questioe yon th t t no s Bu ni 4 t i musy name e d admitteoan b f tan , d that ther e difficultiear e n o s both e upholdersides Th e Teutoni. th f so r Anglo-Saxoco n origin have neve re Kentis explaineth f i hw Gavellcindho d s merelwa ya tenur f o e lan r ren dr fo rende o t f agriculturao r l services instea f feudado l services mera d ean variet f commoyo n Socage t retainei , e distincth d t namf eo Gavelkind, and special incidents to be presently noticed, in Kent and a few othe s tha i suc o t n i tr foune hplacesw b namo ho t d r s o ei amongs, t the Teuton e Continentth f o s satisfactory . an Nos ha r y meaning been found for the second half of the word according to this view. For why should the custom be called a kind or species of gafol. The chief difficulty upon the other side appears to be what Darwin, whe geologicae nth l evidenc s silen wa r e adverso s tTheor hi o f t eo y Evolution, called, in The Origin of Species, the defect of the record over a long e perioknowon f timeo o ds N e conditiomucth . e f o th h f o n Celtic tribes which occupied Kent prior to the Roman Conquest. Yet

name 1Th e " seem tel o tha ss t chie e u l th t f characteristic of thas t ha tenur r o s ei bee e paymennth r Gafolo tren f o distinguishes a t d froperformance mth e of military service on the one hand, and of agricultural labour on the other ;" Pollock and Mait- land, History of English Law, 1895, i. p. 164. But it will be shown presently that s distinguishinit t no this swa g characteristic. 2 Lectures on the Early History of Institutions, 1875, pp. 186-9. 3 The Ancient Laws of Wales, 1889, pp. 459-490. e TribalTh 4 System n Wales,i Englishe 1835Th d ,an Village Community, 1884, p. 352. 144 PBOCEEDINGS OP THE SOCIETY, MARCH 14, J898.

establishe w t seemi no e evidence t leas th sa b e Britisy o th t tb d f o eh coinage that the madd yha e some progres roae th dn towardso s civilisation, especially as regards the cultivation of land. It is difficult, therefore, to suppose that they had no rules with regard to the tenure of land, though what these rules wer unknowns ei onln inferree ca yb d an , d from those we find existing at a much later date amongst their kindred tribes who took refuge in Wales, and such an inference is by no means always safe. Another difficulty which affords indeed the strongest argument in favour of the Teutonic origin is that the word Gafol, which is at least similar in sound to Gavel, undoubtedly existed and was frequently used in con- nection with the Kentish land customs. Indeed, it may be granted that this word became early associated in the minds of English lawyers with Gavellcind tenure. But it does not appear that they were associated with Gavelkind tenure alone. Thus gafol-corn, gafol penny, gafol malt, gafol honey, gafol sivine, and other similar compounds, were cases in which the rent or return from the use of land was paid by the species of thin associateo gs d wit e worhth d Gafol, sucd an h compounds frequently occur in the tract called " Eectitudines singularum personarum," Schmidt, Gesetze die Angel-Sachsen, p. 371 et seq., which is not ill any way confine o Kentist d h customs. Gafol n shor i s equivalen wa te th o t t Lati e nFrenc th census d han gabelle. t I deserve s remark thae th t form Gafolkind awarem a I doe ,s Anglo-Saxo e a occu sth r notn fa i r o s , n Law f agains r Chartersof o s t se t e thib , sy thoug thama t i hGabhail Cine, though given in O'Reilly's .Dictionary,'has not yet been found in Irisd Ol h e Laws th o doub trus N i .t e i t that when lands were heln i d Gavelkind servicee Lore th , th do st wer t feuda eno t agriculturalbu l r o , fo certaia r n small payment t thibu ,s shows only that Gavelkind ha d existed before Norman feudalism t doet bu decid, no se questioth e n whethe s origi it rs Anglo-Saxo wa n r Celtico n s a coinagsoo A s a n. e was introduced it may be deemed certain that payments in money would be substituted in certain cases for payments in kind as the return for the use of land. And it is well established that the Celtic Kings or Chiefs of Kent had a coinage. So too the existence of superiors to whom such payments woul made db s certainl ewa t onlno y y pre-Normat bu n also pre-Saxon. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 145

As gavelkind was the general custom of Celtic Ireland down to James I. and of Wales down to Henry VIII. we should expect to find traces of Scotlandn i t i whosf o , e Celtic population part came from Ireland dan anothe e samth f ero Cymripars wa t e cWelsh th t racsuc s Bu a eh . d indirectan w ti-acefe . e ar partlThisy ma se accountee yb th y b r dfo fact f Scotlanthao e Celti th w t s neveLa c dwa r writte r codifieo n s a d the Laws of Ireland and Wales were, and that as a consequence its legal customs were less able to resist the dominating influence of Feudalism and its' custom of Primogeniture. This is not the only custom which has been submerged. The whole body of Celtic custom in Scotland was either overlaid or swept aside by Roman Canon or o thas Feuda tw onl e La scantiesl th y t fragments survived. Stille w should expec s septtit thar f clanse so custoo th t n ,whicy mme b e hth other thae chiefsth n , hel r succeededo e landth o st d they possessed would not be entirely lost. worde Th whicf so composehe b Gavelkiny ma bote r dar o h s di know n Scottisn i h compoune Gaelicth t bu , d seem o bet s ' unknow f vero r yo n rare use. Mr Alexander Carmichael, the best living authority on such a point, inform e tha s once m thinks h r ha ttwic o e e h se heare th d word Gavel e NortherCinneth n i n Islands s uncertaii t bu , n whas wa t e precisth e meaning attache. it o dt GabUail r Gavelo n Gaelici 1 means :— share Th f woreo ) k(1 performe yokinge oxey on db t na . ) Spoi(2 l take warn ni . farmA ) .(3 leasA tacr ) eo whicy (4 kb a hfar mhelds i , whic s ordinarit s hi y meanin modern gi n Gaelic. possible Th y allied word GoWial mean forks a Professod an , r Mackinnon writes to me, " Gobhal is with us restricted much to rafters forming an angle humae e th for f th , o kn bodya gulla landscape. d n yi an , e Th " Highland Society's Dictionary gives " a prop, post or pillar, a house sup- porter, a forked supporter," and is still used in this sense—GoWial in Argyle and Gabhal in Perthshire Gaelic.

1 Highland Society's Dictionary, _sub wee. K VOL. XXXII. 6 14 PROCEEDING E SOCIETYTH F O S , MARCH 14, 1898.

wore Th d Cavil "sftare th mean pol) a elot.a staff.r (3 ) ) eo 2 s(1 (2 1 of anythin d speciallan g y lan r whicfo d h commos i lotcast.e t sar I 3 n in Scottish dialects, but as it is found both in districts mainly Celtic, an n districti d s mainly Teutoni s Northumberlanda c r Scandinaviao , n as on the north-east .coast of Scotland, it is uncertain from which it is derived e morth , e that thera Scandinavia s i e n root " Gafle s wel"a l e Celtiath s c "Gavael," and good scholars prefe e Scandinaviath r n origin. Similar use f boto s h Gablialfoune b Golhald o Irelann t i dan e ar d and Wales, and there is little reason to doubt that the Irish Gavel as in Gavelkin e Scotcth d hdan Celtic Galhalsamee th e . ar Kind again may of course be, as argued by the advocates of the Teutonic origi f Kentiso n h Gavelkind, merel e a sorwor r th r yo tfo d kind of thing, but it is more probably "kind" in the sense of " kin" or family, from which the adjectives kind and kindly are derived. I have already pointed "out the difficulty of attributing the derivatives of a common Aryan root to any one branch of the Aryan family. But as in Ireland and Wales kind was undoubtedly of Celtic origin, so it probably was in Celtic Scotland. The word " Cinneadh"1 from the root Cinn, to gro r increasewo , meanin sepga e increas r clanth o t s a ,r descendant eo s of common ancestors, becam suppressioe th y eb e dh th Cinnef no r Kin,o The older use probably was to- sound the d as in the Welsh equivalent cenedl, survivy thid an sma sense kindth n ei f kin. eo n i And here a very ingenious conjecture of Mr Herbert Lewis in his e AncientworTh n ko Latvs f Waleso comeperhapy o ma handt s d san , be carried a step further than he- has done out of the region of the con- jectural int oe probable th tha f s attentioo t Hi . d beeha nn drawo t n e referenceth n Jameson'i s s Dictionary unde e hea th f r" o d Kindl y Tenants," afterwards called Eentallers when their names came to be entered in the Lord's Eental, which constituted their title without any Tac r Leaseko . These Eentallers were simila Engliso t r h Copyholders. The e ytim weron e t a eundoubtedl y numerous, though they havw no e

1 Christ's Green,e Kirkth n o stanz. a7 2 Bellenden's Chronicle. Douglas' Virgil, 112, 55. 8 Burgh Laws,. 59 . c 4 Highland Society Dictionary. NOTE QUERIEE D CUSTOTH AN S F GAVELKINDN MO O S ? 14 .

disappeare de King' excepth e eas f th o es n i tKindl y Tenant f Loclio s - maben1 and the Tenants by Booking of the Abbey of Paisley. They are almost the only, if not the only representatives of ancient customary tenure in Scotland which evaded the thorough-going adoption of Feudal tenures and were the survivals of a very ancient condition of society. Stair says "A Eental is," by which he means is equivalent to, " a Tack Kindlo t t se y Tenant se successorwhicth e anciene har th f so t possessors e receive e ar Heritor thosth o o y eb wh d r wit e likth he privilegf i s ea they wer anciene eth t possessors. Such Tacks understoode ar compre-o t hend more kindness friendship tenantmasterand his the to in than other tenants? thereford an Eentallee t assigth e no y n thema r r introducmno e a sub-tenant unless the rental expressly bear that power, but must him- self remain on the ground as a Colomis the same being in his own labourage, and albeit after the expiry of the rentals their successors have no righ maintaio t n the mpossessionn i t frequentl,bu favouf yo r thee yar continued, and pay grassum at the renovation of their Eentals."3 In this passage Stair e denieprobablyh e e s righth a th s f r o t fa , .io s n rentalle treatd an rs possessio shi mattes na f favouo r r renewee onlb o yt d by payin grassuga d liken man s renta hi s l rightacka o t t , fell inte oth same mistake as the old English Lawyers who considered Copyholders as little more than tenants at will, whose right proceeded from the Lord's grant and not from ancient possession. But we may be pretty certain that originally they were more than this, viz. anciene th , t possessoro swh had right f possessioo s ne existencprioth o t r f feudao e l r lawsSi . Thomas Graig,4 who wrote before Stair, expressly mentions that while the customs differed and the practice in his time was for the Lords to

followine Th e examplear g f entrieo s s with referenc Kindle th o t ey Tenantf o s 1 Loch-Maben:— 24th Nov. 1726, M. 15195 e Kindle righth Th f o .t y Tenant Loeh-Mabef so s nwa found to be such a right of property in the lands that they could not be removed and might dispose their rights to extraneous persons. Julh 4t y t 1781 Bu . 10310M , . Rentaller f e SeatoMortoo sth n no n estate were held incapable of granting an infeftment to a third party by way of heritable security. The case of Loch-Maben was treated as an exception, Irving and Jopp v. Collins. 4th Feb. 1795. M. 10316. 2 Observe, Maste e Tenant.e th th f Staio o ' t r y r' sa doe t sno s Institutes, 29, 15 and 16. 4 Dicgesis, 45, 19 and 93, 24. 148 , PROCEEDINGS OF THE SOCIETY, MARCH u, 1898.

limit'Rentals to liferents, yet in the Bishopric of Glasgow and Abbey of Paisley lands they were hereditary d onl an ,thosn yi e unde Lorde th r s in occidentalibus partibus Scotia for life. This seems to imply that they were hereditar generaa s ya l rule Wese inth f Scotland o t districa , n i t which the Celtic race lingered longer than in the East. The above view of the original character of the Kindly Tenant is confirmed by an Act of Queen Mary, 1563. 12 "Tha . c ,a kyndli n t e lauchful possessor, tenen e saidith tf so oceupye Kiry an k f o landir e removib s a thaifr t r Kyndlie roum, stedding, or possession he the allegit feuaris or takaris of the same in lang takkis," and Jameson observes, " A man is said to liave a liindlie to a farm or possession which his ancestors have held and which himsels heha f long possesse d! Sixt seventr yo tooe on kya f yeari o sag farm ove heae sais s th rf anothehave o do dt wa wa t Idndlieo i a , wh rit o t recognised, as unjust as if he had been the real proprietor." There are many example f thesso e kindly tenant formerls a s y existin e partth n sgi of Scotland which remained longes sufficey ma tw . Celticfe s "Hi A . kin friendd dan f Clao s n Chattan bega calo n t min o Jamest lw dho , Earl of Murray, had casten them out of their kindly possessions whilk past memorthein ma r f predecessoryo d thesmala d kep an r syha fo tl duty, their fo rt faithfubu l service " (Spalding's History Troubles,e oth f vol, .i. p. 3). So there is noted in the Book called Balfour's Practices the

case of the Kindly Tenants in- St Mungo's rental, the ancient renta1 l e Se of Glasgowth feo , which decided tha e liferenwidoe th th t d y wb ha t privilege of St Mungo's widow. This probably refers to a right intro- duced in favour of the widow by the Church which had not previously existed. In another case of the King's Eentallers it was held that " the bairns audit to be rentalit." This seems to imply a right of the. children succeed.o t ' Both cases undoubtedly refe Celtio t r c districts. e importanc th r Lewi M w sa s f o suce h passage s a suggestins g the Celtic origi f kindlo n y tenancye attributedh t bu , 2 the deriva- 1 Balfour's Practices, r bestou , indeed almost only, recor f decisiono d s prioo t r institutioe th e Courth f Sessionf no o t s probablwa , t writtenyno assumes a , s it y db editor, Goodall r JameSi y b s, Balfou Pittendriechf o r s ai n t i authenti t bu , d can valuable book. See article "Who wrote Balfour's Fidelities'1. " by M. J. G. Mackay, Scottish Antiquary, July 1898. Anciente Th 2 Laws f Wales,o . 476p . XOTE QUERIED E CUSTOAN TH S F X GAVELKINDMO O S . 149-

wore th tio df o "n kindl e Celtith y o c"t " cijnydd, meaning increase." t ratheno t i e samr s th I derive f eo clanwer o e m dk wh eth , fro e mth original possessor f sucso have h w tenancie Scotlan, n ei so f I thes n sdi ? e kindly tenancie a broken-dows n fragment stilo ltw survivinr o e on n gi placeoriginae th f so l possessio e memberth y nsepb a s i f r clan o so t t I . some confirmation of this view that in an assize of William the Lion1 a. nations is described as a kind born bondsman. Now a nativus is the Scotch equivalen a villei r r fo serf,to n d severa an 2 l passage Crain si g prove that these villein possessor f smalo s l holdings were favourably- considered e evicte b d coul t an , no d without cause. They wer- eun doubtedl n Celtii y c district e ancienth s t Celtic d possessorha o wh s fallen inte conditioth o f e serfsmodo n Th f successioo e. o theset n - kindly e holdingtenancie th e nativi th o t f unfortunatels o r i s o s t yno clearly recory statean dn I havi d e observed t wouli r fo ,d probable yb too much to infer from the single case of the King's Kentallers above cited from Balfour's Practiclts that the general rule was that the whole of the children inherited. This is indeed not likely to have been the vere casth yn ei smal ld littlholdingha serfse eo th mor wh f , so e thana cottager o t hu gardena , perhapd an , s t mighi grascowa t r sfo bu , t have e oldebee d case th large nth an n re i r possession membere th f o s f thso e clan before they lost their original freedom. Thete are some other fragments of Celtic custom which deserve notic s pointina e g indirectl possessioe th o t ydistribus it f lanno d dan - tion amongst member r clan o e sam th n .f eki so e finr compensatioo Th e e nth f payablo n r slaughteki fo e e th o t r person killed by the kin of the slayer within certain degrees, as in the old laws of Galloway and the law of Clan Macduff in Fife and also apparently in the West Highlands, is one example. Such a liability must have bee t leasa n t originally correlativ 'same a righth eo f t eo t degree of kin, and this probably was a right of possession of lands in the same neighbourhood which were distributed withibetween ki e nth n certain degrees. Another such fragment whic s endureha h d dow o quitt n e recent time s e custo e commoith sth f mo n holding f villago s e communitien i s l.Acts Parl. Scot., . I 2 Set Parl.,eAc 1578, revised ed. . 111p , . 150 PROCEEDINGS OF THE SOCIETY, MARCH 14, 1898.

e Westh t Highland d Islandan s welo s s l describe r AlexandeM y b d r Carmichael in Skene's Celtic Scotland.1 According to this custom, which undoubtedly prevailed ove a mucr h larger portio f Scotlanno d placey e wa alson s se lingert thawherth ow a wa f no nd o t t thei san eou time well know n Irelandi n e arablth , e land whic d noha ht become private propert redistributes ywa orde n i t equaliso t rlo y db e shares eth , t fixea d intervals, usually s saidi t i , , three years, amongs e memberth t f so the village community. Such shares were called runrig, where they lay side by side, or rundale where they were divided, according to the situ- ation and quality of the land, into more distant patches. The village community was undoubtedly originally and long continued of one kin and name. It must be noted, however, that runrig or rundale appears a Scandinavia e b o t Celtia s wela ns a lc custom. Possibl e veryth y names runri d rundalan g e evidenc ear e blendin kindreth o f tw eo f go d customs where there was a mixed Celtic and Norse population : Bun is e Celtith r Gaelico c roinn, meanin 'divisioa g r shareo n d , an whil g Bi e Dale e Scandinaviaar r Teutonio n ce ridge th word r larger o s fo s r divisions into which the land was divided. Run has no connection with the verb to move quickly, which is the source of the modern sheep-run repetitioe Th e sam.th ef no ide f divisioao Celtia y d nb can Teutonic wordn Run-dalei s a , s quiti , consonancn ei e with a common mode of forming place names. .. Still, whil l theseal e relic f customso s taken together afford evidence

) commoo(1 f n holding para f o r townshiprs o ) amongsn (2 ki d e an ,th t titio r sharinno g amongs e personth t s entitle shareo t d , they faigivo t l e the desiderated word or thing, Gavelkind, to express a rule of succession amongst male descendants e AuthorTh recena . f o s t able worth n o k Clan Donald2 have indeed asserted, as several earlier writers did, that Gavelkin s commowa d d welan n l e knowScottisth n i n h Highlands. But when the instances given are examined they turn out to be cases e divisiooth f f lanno d amongs te Chiefsth son d y generallsb an , y b y Will or Deed. This is quite different from Gavelkind, which was a division by Custom, not by Will or Deed, and applied to land not

e Chiefth hel y db . Suc hdivisioa n (rather) resemble smala n so l scale 1 Skene, Celtic Scotland, iii, . 2 History of the. Clan Donald, 18?8. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 151

partitioe th n mad Charlemagny eb d othean e r monarchs amongst their sons. doubo n s i t t possiblI e that such partition havy sma e been influenced custoa y b f mdivisioo n existin othen gi r classe f societyso t neitheBu . r monarchs nor chiefs were bound by the custom. Some of the incidents of the Kentish Gavelkind, apart from its main provisio f partitiono n amongst male heirs, deserve special attention i n this inquiry. ) Whe(1 tenane nth Gavelkinn i t d was attainte f felonydo e Kinth , g took all his goods in escheat, but the heir (which included heirs) was inheritable to all his lands and tenements which he held in Gavelkind heritaged an e held fe an ,dn i e samtheth ey m b service d customan s s a s ancestorss hi Kentise Th . h saying :—

tlio t e n ploughso e bougfathee e th th ,d Th o ht an r

orothers a , s read, " lowe, quotes "i supporn di this.f o t 1

Now such a limitation of forfeiture or escheat was contrary not only quits wa t Normao alse t t Saxon.i o bu consonanot t w la nBu 2 t wita h tribal Celtic custom such as the Celtic Gavelkind, by which the land belonged to the tribe, sept, or clan, and the individual was only a tempo- rary possessor whose righ f possessioo t partibls nwa n eo amongs n ki e th t his death or forfeiture which was deemed equivalent to death, but could t fairl no e takeb y n from them unless they were participan n hii ts felony. (2) When the Kentish Gavelkind lands were divided according to e oldesth te custo forth f mo m recorded e hearte th home, th r firf ho o e- stead called Tfie Coverte Astre,th f o 3 whic takes h wa representativs na f eo e homesteath d a portioitself d f an grouno ,n d roun , e wenit dth o t t

Lambarde, Perambulation of Kent, . 516p . 1 2 Kemble's Anglo-Saxon, i. p. 250. derivatioe Th 3 f Astreno s obscurei t whethe Bu s connectei . t i r d with Latin Atrium, Trencd Ol r o h Aistre, Higd ol hr o German Astrih, modern German Estricha ( farmstead) t meani , t practicall hearte yth d home an horiginae th , l homesteae th f do family. (Lewis's Ancientf Wales,o w . 480.p La ) 152 PKOCEEDING E SOCIETYTH F O S , MARCH 14, 1898.

younges t divisiblno s twa e child amongsan d e others.th t 1 Suca h prerogative right of the youngest born is analogous to the custom called Borough-English, wher whole eth e land youngestse wenth o t t . Grimm gives ha n many instance f thiso s custoe Continentth n mo whic• o t , r M h Elton has added others, showing that it existed not only in almost every European race, but beyond the bounds of Europe. A well-known pas- sage in Glanville copied in the Eegiam Majestatem appears to show that by the earliest Scottish as well as English customary tenure, where there wa prooo custoa sn f o f f partitionmo , sometime e eldes th st somebu t - times alsyoungese oth t chil preferreds dwa e origi Th f thio n. s custom so strang modero et n idea s givesha n ris o mant e y conjectures s thaa , t the youngest was deemed the least able to maintain himself or was the unemancipated child remaining in the family when the elders had been provided for, or that in some primitive heathen religion the youngest celebrato t boe famild th mcarrd ha n an eyo e yancestra th rite t a s l hearth. Whateve undoubtedls origins it r wa t i , y eve n Saxoni n times a custo f remotmo e antiquity s beeha n t I prove. d thae namth t e Borough-Englis accidentals hi doed t shoan 2 sno s Anglia wit n origind an , Saxoe th Southerr n indeeni o s e i Midlan t th di n i districtt d no d san and Norther r Angliano n portions s chieflthai t i t y found. Whaf o s i t most importanc e presenth r fo et purpos o nott s ei e thae nearesth t t paralle Kentisd thio t lol s Astre,e e righth th h o n t Gavelkini t d custom, is the Welsh rule by which the youngest took the " tyddin" or "-dwelling place " s as an exception t

Lambarde, Perambulation 519d an .o7 f Kent,50 . pp 1 2 Polloc Maitlandd kan , f HistoryEngland,o . w f 277p theo e loca . La ii Th . l circumstances of Nottingha lato m s s 1327 ea , whe nFrenca h Burgh stood sidey b side wit Englisn ha h Borough, led, accordin theso gt e authors speciaa o t , l case being made a general name. Certainly the custom of Burgh-English obtained when there wa propeo sn r Burgh Rubinsone Se . Gavelkind,n a Index wee.b su , 3 Herbert Lewis, p. 479, quotes the passages Leges Walliae, i. 544, Dimetian Code, i. 760, and Gwentian Code, ii. 688. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 153 '

Some remarks of Mr Seebohm in his scholarly work on " The Tribal System in Wales," though somewhat speculative, add an interest to this part of the subject. " The hearth (aelvvyd or aylwyt)," he says, " was the centre of the house, and it was sometimes metaphorically used for the household, hearthe "d Th "an , moreover symboe th s familf o lwa , y owner- ship and inheritance. The right of the son on succession was to un- cover the hearth of his father or ancestor. The legal term for the recovery by an ejected son of his patrimony was dadenhedd or the uncovering again of the parental hearth. The term was a graphic one. The fire back stone set up against the central pillar of the hut supporting the roof (jpent an uaenliead, fire stone) was a memorial 01 witness of land and homestead (fir a tlnjle), because it bore the mark of the kindred upon it." i ******* evidence "Th f folkloreo e might lea s furthedu o recognist r e impor- tant religious superstitions connected wite hearthsth ht eveBu n. withou r grandsoo n t so thir e greapractico ne th s th t f o grandsoe n returning perhaps from exil claio et paternae mth l homestea uncovery db - ing agai ancestrae nth l heart e importanc. emphasis th . h. s u r f efo o e e Cymrith c e right heartfore th th f f kindred.m o o s ha " 2 (3) It was an incident of Gavelkind that the heir could alienate whe e attainenh s fifteenthi d f majorito h e yearag s ya e , whicth s hwa distinguished froe Normath m f twenty-oneo ne ag custom e d th ,an , became the Common Law of England so definitely that by a fiction all persons under it are called infants. Fifteen, or the completed four- teenth year, was also the Welsh, Irish and Scottish age for the termina- tio f guardianshino e attainmenth d pan f independenceo t alss owa t i s a , e Eomaoth n n Law, which probably derive t froi d mCeltia c original. But as it was also the rule in some Teutonic customs, and amongst these in Anglo-Saxon Socage tenure, it is not possible to draw any safe inference whether this indicates a Celtic origin for Gavelkind. All e saib s thadthai n t indicatei ca tt earln sa y origi r thafo n t customs a , e postponemenf majorito th e ag twenty-on o yt e th f o t s undoubtedlewa y of later date. 1 Leges Walliae, ii. 561, ii. 667. 2 The Trllal System in Wales, p. 84. •154 PEOCEEDING E SOCIETYTH F O S , MARC , 1898H14 .

The early age of majority in Scottish Law has always been a puzzle. It has sometimes been thought to have been derived from the Roman t Lawperhapbu , a commos n Celtic origi r botfo ns mor i h e probable, though, no doubt, the Scottish rules, with reference to pupils and tutors, were borrowed at a later stage from the Roman Law. (4) The most important incident of Gavelkind was the form of distres r executioso n called Gavelet. closelo This s i s y associated with nomenclaturen i t i , tha t musi t t have bee originae parnth a f o t l custom The Kentise descriptioth n i t hi Custumaf no l is:— tenany an Gavelkinn i "f tI d services retaie hi th s rend nf hi o san t tenement which he holdeth of his Lord, let the Lord seek by the, award of his Court from three weeks to three weeks to find some distress upon that tenement, unti e fourtth l h Court, always with witnesses. And if, within that time, he can find no distress in that tenement, whereby he may have justice of his tenant, then, at the fourth Court, let.i awardee b t d that shalle h take that tenement e intos handth hi n i keem a hi t pi t le a coio, d r o an x distress; , namet o i a were n f f i a o s a s hanhi dn i withouy da a yeat d manurinan r , withigit n which timf ei the tenant come and pay his arrearages, and make reasonable amends for the withholding, then let him have and enjoy his tenement, as his ancestors and he before held it, and if he do not come before the year and the day past, then let the Lord go to the next County Court with the witnesses of his own Court and pronounce then this process to have further witness, and by the award of his Court after that County Court holden, he shall enter and manure in the lands and tenements as in his demesnes. And if the tenant come afterward and will relieve his tenement mak d m hold beforehi an di sd e t e thele agreemenh , s ma t wit Lorde hth , accordin ancientls i t i s ga y said— ninm hi e t timeLe ' s pay nind an , e times repa fivd yean poundr fo s 1 weie th r become (fineh e . er ) e holder.' " : The last paragraph is obscure and possibly corrupt. But the main poin s i thae abovt th t e description exactly tallies wit n anciena h t Celtic mode of attaching lands for non-payment of debt, which was modelled aftee Celtith r c for f distresmo s against cattle thiy B s . form 1 Lambarde, p. 499. NOTE D QUERIEE CUSTOSAN TH GAVELKINDF N O MSO 5 15 .

of distress the possession of the land could be attached, but only after many formalities n securityi d an r ,ther always fo , ewa - a righre s f o t demption e worTh .d e namGal/hailth s e wa give o t thin s forf mo distress bot Walen hi d Ireland t sbeean n Englanno I n d . conha t di - fine e privilegKento dt th r fo , f Gaveleeo s confirme wa te citizen th o dt s of Londo e statutn th 131i n e s y Gaveleto.copieb 6D e wa n t i dI Wrie th Normay t b calle w dnLa Cessavit.1 In Ireland the word for distress AtJi-Gabhail = the retaking of mose th f t o voluminou regardinw e la propertyon e s i th , gd it s, an part f o s tlie Senclius Mor e ancienth , t code attribute t s Patrick.S wa o t d t I 2 in Ireland, too, originally applied to cattle, but the possession of land might becom e subjeceth f suco t h distress.3 In Wales there was also a form of distress called Gafael, which was applicabl e recover th e due o th et r service o sf yo f Breyrso Land, which answered to Gavelkind, and the holder of such land was called Gavylaug-ur = gavel-man.4 No reasonable explanation of Gavelet as a Saxon word has ever been s analog givenit e abov th t o bu ,t ye form f distreso s n Celtii s c Ireland and Wales is striking. minof o s i r t I importance ) (5 t deserveye , s notice, that Dower when it did attach to the Gavelkind land of Kent was different from the Norman Dower. It gave the widow one-half instead of one-third of s forfeitewa t remarriage i y landincome e db d th th an ,f o e , whics hwa case th e t accordinno Normae th o gt n custom. Dowe s chieflwa e r du y to the initiative of the Church, always exercised in favour of marriage, and it is a possible conjecture, though no more than a conjecture, that when Christianity, derived fro e Romamth n Mission, took possessiof no Kent, in Saxon times it may have introduced Dower in a form some- what different from the later Norman Law. ) Ther(6 e remain e furtheon s r point, smal n i itself lt whicye , h

1 Statute of Gloucester, Edwar6 d. 4 Statute I.. ,o of Westminster, II. Edwar3 1 , d . 21 I.. c , 2 Ancient Laws of Ireland, i. pp. 48 and 65, &o. 3 Ancient Laws of Ireland, . 259p . i . 4 Herbert Lewis, Ancient Laws of Wales, p. 168. 156 . PROCEEDINGS OF THE SOCIETY, MARCH 14, 1898. '

presents at leas a curiout s coincidenc favourd ean e Celtith s c origin of Gavelkind. The Men of Kent, the holders of Gavelkind land, claimed a right to fight in the van of the feudal army of England.1 So did the- men of Urchinfield in Hereford on the Welsh border, whose Gavelkind custom was undoubtedly Celtic. So in Scotland' did the men of Fife, where this was one .of the privileges granted to Macduff, the Celtic Chief, as a compensation for submitting to Malcolm Canmore. May ther t havno e e been, though histor s silenti y similaa , r concession ni e CeltKenth f Fifs o sa t e alsod weran , e allowe maintaio dt d ol e nth f Clao ncustow e la BritonMacduff th r mo y f Keno sma t hav, no t e been allowe retaio dt e custonth f Gavelkinmo d? Suc a hconcessioeasiln a e Celt e prids th yth f swa granteo o et n d boo theiy nb r future masters e astutth , e Saxons. followine statee Th b y d gma tentativel heade e argumenth th f s yso a t standw no favouan e Celtit si si th f o cr origi f Kentisno h Gavelkind :— I. Kent is a part of England which, even after the Anglo-Saxon settlement, retaine e Celtith d c namee CantiTh . i were Celticth e " inhabitants in Eoman times, and Canterbury and Kent, as well as the adjoining London, prove to this day that the Teutonic conquerors did t succeeno n Sussex i s thea dd di y , Wessex d Esse an ,n imposin i x g their nomenclatur thin eo smost e par th f Englands o t civilisewa t I . d part of Celtic Britain, and it seems quite possible that some of its local customs, as well as its place names, survived its conquest by the Jutes. II. Very little is really known of Hengist and Horsa and the cir- cumstance f theio s r conques s admittei f t i Kento tt dbu , thae th t number of the Jutes were few. Kent seems to " have been won by a single battle " is all that one of the soundest English Historians, Bishop Stubbs,abouy sa . n it t ca 2 Romanisee Th III. d British Inhabitant f Kento s , when the Anglo- Saxons settled there, wer r frofa em Barbarians.. The d alreadyha ya form of monarchical constitution, an advanced agriculture, and a current, though debased, coinage t seemI . s certain that they must have had, whetherecoven r notca o e , t i e holdinw rcustomr th o d t gs an sa

• ' Rolinson on Gavelkind, p. 229. 2 Constitutional History of England, i. p 60. NOTES AND QUERIES ON THE CUSTOM OF GAVELKIND. 157

the succession to land.' Is it not possible that these customs may have been similar to the customs which survived so much longer amongst the Celt f Waleso d Irelansan d2 accordins i t I . Anglo-Saxoo gt IV n tradition thae Teutonith t c race was summone Vortigery db o protect n s subjecthi t s against thein ow r e barbarouNorthth f e Pictse o marriagth , n Th ski . f Vortigero e o t n Rowena, the daughter of Hengist, a part of the legend, may possibly represen r implo t e acceptancyth certaif eo n British customs. V. In the Domesday of Kent the class of villeins supposed to represent Gavelkine th d tenant vers i s y numerous, 6597, whil e clasth e s called Socmanni e privilegonle . th ar The44 yd f ha yalienatioo e f theio n r land at the age of fifteen, without consent of the Lord, which seems to identify them wit holdere hth Gavelkindn si t woulI . d seem singulaf i r Gavelkind was no more than a form of Socage that the villeins holding under it should be contrasted with the Socmanni. VI. The philological argument is clearer than the historical, which must be admitted to have gaps, and to be largely conjectural in the absence of historical records earlier than the Anglo-Saxon Charters and Laws. VIIe worTh . d Gavelkin s gooi d d Celti r partitio fo ce lan th df o n amongs kine th t , whicleadine th s hi ge custo th not f o me whethen i r Ireland, Wales or Kent. It is not good Anglo-Saxon for anything characteristic of a special custom. Though Cfafol was used frequently Kenn i renr fo tmonen i t r kin yo e wor dth d Gafolkind t user no fo ds i the custom of Gavelkind, nor is the word Gafol or the tenure, wllich it came to denote, in any way limited to Kent. VIII. The incidents of Kentish GaveUdnd in matters so important as youngese righe (ath th )f o t t e homesteachilth o e dt family th f o d , (6) f majorityo e powee th ag ) alienationf e r(c o , th , e for(d)th distresf mo r so execution e limitatio(e)d th an , f forfeiturno r felonyfo e , find striking analogies or illustrations in the Ancient Celtic Customs of Wales and Ireland. The hypothesis, for it does not pretend to be a conclusion, submitted, is that Kentish Gavelkincustoa e b my originalldma y Celtic modified possibly during the Roman occupation, but in any event by the Saxon 158 PROCEEDINGS OF THE SOCIETY, MARCH 14, 1898. '• and Norman conquests of Kent many centuries before the similar custom f tho s e Wels d Irisan h h wer t firsa e t modifie d afteran d - wards abolishe Englise th y db h conqueror e lasth tf o sremnant e th f o s original Celtic populatio e Britisth f no h Kentise Isles Th havy . ma he survived longest becaus e nativeseth Saxoa , n population with Norman overlords, were favourites of the English kings, while "Welsh and Irish Celts were treated as aliens.