A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner.

Argument.

In these five last wills mentioned (Sarlys, Byx, Hunt, Hubberd and Staces) what means that doubt and question in the Testators, whether their devises (of houses and lands) were good, or would hold and stand firm in Law, had there been such a Custome, and had not the Law been clear otherwise in this case, as well in Kent as elswhere?

I observe also, that in the interim of 27. and 32. H. 8. some few (and indeed but very few) wills there are in the Registers at Canterbury, wherein lands are devised: some with Feoffment, and some without, at least with∣out mention made of any. As for the former, those with Feoffment, I find the most of them dated, though in or after the year 27. yet before the sixth of May 28. year of that King, until when the Act was not to come in force. Besides, happily the Feoffment was made be∣fore the Statute, and so could not be revoked (as I con∣ceive) without the Feoffees consent. As for the rest (those without mention of Feoffees) some of them were of our City (Canterbury) or the like places, where by particular Custome they might devise. Others (happily) had Feoffments, although not mentioned. If not, they were no other (I conceive) than wills de facto, or de bene esse, made: nor did or could otherwise,

or further operate, inure, or take effect than the inter∣essed or concerned parties should give way: with whom in those elder times (times of more and greater regard and reverence to the will of the dead than the present) the dying parent, or kinsmans mind declared in his will, bare so great a sway, and did so much pre∣vail, as to perswade with them to renounce an advan∣tage to themselves, for the fulfilling of the deceaseds solemne and declared mind. Besides, it follows not, that because such wills and devises are found, therefore they passed and were allowed of as good and effectu∣all: the contrary whereof is more than probable by the ifs and conditions found in other wills of those times, arguing plainly the Testators distrust and doubt of the validity, and consequently of the successe and effect of his devise, whereof examples are laid down before.

Before I close and wind up all, I have onely this to add, by way of offer, from the party opponent to this Custome, and his Councel, (which, as a matter much considerable, I may not pretermit:) that, whereas that abundance of wills wherein lands are devised without mention of Feoffees, found and produced from the Registries both of Canterbury and Rochester, is much insisted on in behalf of the Custome: if from the Re∣gistries of any other Diocesse out of Kent, (where such devises never did, nor could obtein, until the Statute of Wills) of equal circuit and extent to either of these, the very same thing may not as truly be observed, and a proportionable number and quantity of such kind of wills, (wills of lands devised without mention of Feof∣fees)

cannot be produced, and consequently the argu∣ment and inference thence drawn (for the Custome) cluded and avoided, they will sit down convinced, and with their adversaries subscribe unto that argument. An offer (this) in my judgement so fair, ingenuous and plausible, as not to be rejected of any, but such as out of a cavilling spirit, are resolved to turn the deaf ear upon all fair and equal proposals: that I say not, such as, for maintenance sake, make it their study, quocunque modo, to maintain their spurious interest. But that I may not seem to be (what indeed I am far from being, any otherwise than in truths behalf) a partisan in this businesse, I shall forbear all further censure, and if I may but have the Readers leave to make my Epilogue, I shall, with thanks to him for that, and the favour of all his other patience, quit the stage of my discourse on this whole argument, and make my Exit.

Many other things offer themselves to his dis∣course, that would treat of Gavelkind to the full; but they are (I take it) mostly points of Common Law, which because they are not only out of my profession, but besides my intention too, which was to handle it chiefly in the historical part, and that no further than might conduce to the discovery of the Primordiae, or beginnings of it, I will not wade or engage any further in the argument, lest I be justly censured of a mind to thrust my sicle into another mans harvest: onely (so a close) craving leave to supply the common Kentish Custumal, at the end of Mr. Lambards Perambulation, with one clause, which, according to an ancient copy registred in a quondam book of St. Augustines Abbey

at Canterbury, now remaining with my very noble and learned friend Sir Roger Twysden, is to come in at pag. 574 lin. 2. after these words: Que de lay est ••e•••• sans men. viz. (as that old copy gods on there:) E••si home ou femme seit feloun de sei mesmes qeil s••y mesmes de gre se ocye, le Roy aura les charteuz tuts & ni••nt l'an nele wast, mes se heir seit tautost enherite sans contredit, kar tout seit il feloun de sey mesmes, il neyt my atteint de felonye. Et clayment auxi, &c. as it follows in that printed Custumal. Which clause, as I conceive, may be thus Englished: And if a man or woman shall be a Felon of him or her self, who shall kill him or her self of his or her own accord, the King shall have all the Chat∣tels, and not the year and the waste, but the Heir shall immediately inherit without contradiction: for albeit he or she be a Felon of him or her self, he or she is no•• attain∣ted of Felony.

Now craving pardon for what liberty I have taken to deliver my sence, and give my conjecture, on seve∣rall occasions here emergent, I shall here cut the thred of this Discourse, wishing that as I have not spared freely to speak my mind, so that every man that plea∣seth, should assume the like liberty, not sus••ecting me so opinionate of mine own vote, as to wish, much lesse to beg, least of all to importune any unwilling mans concurrence, though haply unprovided of a better of his own, disclaiming that magisterial boldnesse of him arrogated, that said once upon a like occasion:

—si quid novisti rectius istis Candidus imperti, si non, his utere mecum.

And (to wind up all) wish every man, in what he stands in doubt of, to be his own Oedipus.

Da veniam scriptis: quorum non gloria nobis Causa; sed utilitas, officiumque fuit.

Notes

• Perora••io.
• A clause want∣ing in the printed Ken∣tish Custumal supplied.
• Ovid. de pont. lib. 3. El. 9.