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gavelkind Law.|ˈgævəlkaɪnd|
Forms: 3 gavelikind, -kende, gaulikend, gavelkend, 4–5 gavelkynde, 6–7 gavellkind, gavelkinde, 6– gavelkind.
[The 13th c. form gavel(i)kende (latinized -kenda) seems to point to an OE. *gafolᵹecynd, n. neut. (the e for y being a mark of Kentish dialect), f. gafol gavel n.1 + ᵹecynd nature, species, kind.
When the meaning of the word came to be misunderstood (see 2), attempts were made to assign to it an etymology expressive of the custom of equal division of a deceased person's land among his male children; favourite explanations in the 16th c. were ‘give al kinde’ (Rastell 1557), and ‘give all kyn’ (Lambarde 1576); sometimes the word was written in pseudo-etymological fashion as gavealkin, gaveall-kind. The application of the Kentish term to the Welsh and Irish system of succession led to the notion that the word was of Celtic origin: a Welsh derivation from gafael to take, and cenedl race, family, was proposed in the 16–17th c.; an alleged Irish gabháil-cine (from gabháil to take, taking, and cine tribe, sept) appears with the rendering ‘gavelkind’ in O'Reilly's Irish Dictionary.]
1. The name of a land-tenure existing chiefly in Kent.
The name implies that it was originally a tenure by ‘gavel’, i.e. by the payment of rent or fixed services other than military; this agrees with the indentification of it with socage (quot. 1253). After the Conquest, the Kentish form of socage was distinguished by certain customs elsewhere generally disused (cf. quot. 1702). Of these the most conspicuous was the custom by which a tenant's land at his death was divided equally among his sons; hence, even in early times, ‘gavelkind’ and ‘partible land’ are used as equivalent terms.
1205Rotuli Chartarum 160/1 In gavelikind. 1241in Somner Treat. Gavelkind (1660) 179 Burga dicit quod prædictum manerium est Gauelkinde et partibile, et prior dicit quod prædictum manerium non est Gaulikend, neque partibile. 1253Close Roll 37 Hen. III in C. J. Elton Tenures Kent (1867) 49 Terræ quæ tenentur in socagio vel gavelikende. 1324Prerogativa Regis in Stat. Realm (1810) I. 227 Et in Kancia in Gavelkynde..ibidem omnes hæredes masculi participant hæreditatem; similiter omnes femine; set femine non participant cum masculis. 1495Act 11 Hen. VII, c. 49 The Lordshippes..[shall] in no wise be of the nature of Gavelkynde ne departed ne departable amonges heires males. 1599Nashe Lent. Stuffe Wks. (Grosart) V. 221 When hee firmed and rubrickt the Kentishmens gauill kinde of the sonne to inherite at fifteene. 1702E. Chamberlayne St. Gt. Brit. i. i. iii. (1707) 19 The privileges of gavel-kind belonging to this Country [Kent] are threefold: 1. The Heirs Male share all the Lands alike. 2. The Heir is at 15 at full Age to sell or alienate. 3. Tho' the Father were convicted of Treason..yet the Son enjoys his Inheritance. 1703Stat. Ireland 2 Anne c. 6 §10 That all lands..whereof any papist now is or hereafter shall be seized in fee-simple or fee-tail shall be of the nature of gavelkind [i.e. shall descend to all his sons equally]. 1846McCulloch Acc. Brit. Empire (1854) I. 199 All lands in Kent, unless specially exempted by an act of the legislature, are held by the tenure of gavelkind; descending, in the event of the father dying intestate, not to the eldest son, but to all sons alike in equal portions; and, if there be no sons, then they divide equally among the daughters.
2. From the 16th c., often used to denote the custom of dividing a deceased man's property equally among his sons, whether as an incident of the Kentish tenure or otherwise.
1531Dial. on Laws Eng. i. x. (1638) 21 There is a custome in Kent that is called Gavelkind, that all the brethren shall inherit together, as sisters at the Common Law. 1577Harrison England ii. ix. (1877) i. 202 Gauellkind, which is all the male children equallie to inherit, and continued to this daie in Kent. 1754–61Hume Hist. Eng. I. App. i. 104 In the Saxon times, land was divided equally among all the male children of the deceased, according to the custom of Gavelkind. 1874Green Short Hist. v. §4. 240 The law of gavel-kind..divided the inheritance of the tenantry equally among their sons.
fig.1627Donne Serm. clvii. VI. 268 For God shall impart to us all a mysterious Gavel-kind, a mysterious Equality of fulness of Glory to us all. a1639T. Carew Poems Wks. (1824) 80 But if thou bind By citie custome, or by Gavell⁓kind, In equal shares thy love on all thy race. a1661Fuller Worthies i. (1662) 2 Every County hath a Child's portion, as if God in some sort observed Gavel-kind, in the distribution of his fauours. 1838–9Hallam Hist. Lit. III. iii. v. §7. 230 Their parental love forbids all preference, and an impartial law of gavelkind shares their page among all the offspring of their brain. 1869Lowell Cond. in Foreigners Pr. Wks. 1890 III. 223 All that is worth having in them is the common property of the soul,—an estate in gavelkind for all the sons of Adam. 1894N. & Q. 24 Feb. 146/2 It would be hard to find another family in whom a literary taste has descended in gavelkind to such a degree.
3. transf.
a. A Welsh custom of dividing property, similar to the Kentish practice.
The Statutum Walliæ, 12 Edw. I. c. 13 recounts that the Welsh custom of inheritance differs from the English, ‘eo quod hereditas partibilis est inter heredes masculos’; the statute sanctions this custom, but provides that bastard sons shall no longer be entitled to share with those born in wedlock.
1542–3Act 34 & 35 Hen. VIII, c. 36 That all manoures, landes..and other hereditamentes..in any of the said Shyres of Wales..be..holden as English Tenure..and not to be partable among heyres males after the custome of Gavel⁓kinde as heretofore in divers parties of Wales hath been used. 1584D. Powel Lloyd's Cambria 21 The diuision of the fathers inheritance amongst all the Sonnes, commonlie called Gauel kinde. Gauel is a Brytishe tearme, signifieng a hold. 1612Davies Why Ireland, etc. 130 King Henrie the eight..among other Welsh Customes, abolished that of Gauel-kinde: whereby the Heyres-Females were vtterlie excluded, and the Bastards did inherit, as well as the Legitimate, which is the very Irish Gauelkinde. 1638Sir T. Herbert Trav. 357 The Annalls of those times..tell us That so soone as Owen..was dead; the custome of Gavel⁓kind..became a Subject of implacable hate amongst his sonnes. 1863Cambrian Jrnl. 155 His family may have fallen by the usual custom of gavel-kind from its former respectability.
b. Irish gavelkind: a system of tribal succession, by which land, on the decease of its occupant, was thrown into the common stock, and the whole area redivided among the members of the sept.
1612Davies Why Ireland, etc. 166 By the Irish Custome of Gauellkinde the inferiour Tennanties were partible amongst all the Males of the Sept, both Bastards and Legittimate. 1827Hallam Const. Hist. (1876) III. xviii. 344 They held their estates by a very different and an extraordinary tenure, that of Irish gavel-kind. 1868Rogers Pol. Econ. xiii. (1876) 176 Tanistry and Irish gavelkind, as the system of electing the worthiest to the headship of the clan and re-dividing the estate among all the males of the sept on certain occasions were called, were..formerly recognised by the English law. 1875Maine Hist. Inst. vii. 185 The peculiar Irish custom called Gavelkind.
4. attrib.
1570–6Lambarde Peramb. Kent (1826) 491 In this Inquisition some lands are denoted to be of Gavelkinde nature, which neverthelesse doe yeelde none other but money alone. a1617Hieron Wks. II. 10 We shall find poperie..to admit..as it were a gauel-kind custome, and to allow sharers with God in the things wherein He will endure no partners. 1624in Rushw. Hist. Coll. (1659) I. 150 An Act for altering of Gavel-kind-Lands. a1626Bacon Max. & Uses Com. Law (1636) 40 The custome of Kent is, that Gavelkind land is not forfeitable nor escheatable for felony. 1701C. Wolley Jrnl. N. York (1860) 57 Henry..who abolished and repealed the Gavelkind custom whereby the Lands of the Father were equally divided among all the Sons. 1766Blackstone Comm. ii. vi. 85 The gavelkind tenures holden of the fee of Canterbury. 1817W. Selwyn Law Nisi Prius (ed. 4) II. 717 Declaration was for a moiety of land of gavelkind tenure, in Kent.
Hence gavelkinder, one who holds lands in gavelkind. rare—1.
1570–6Lambarde Peramb. Kent (1826) 491 The very Customall of Gavelkinde it selfe useth never a woord of Socage tenure, but of Gavelkynders. |