518 Transactions. — Miscellaneous. 



Art. LVIII. — The Law of Gavelkind. By Coleman Phillips. 



(A Eeply to Messrs. Wallace and George.) 

 [Bead before the Wellington Philosophical Society, 14th November, 1883.] 

 The accompanying brief paper purposes to explain the Law of Gavelkind, 

 as opposed to the System of Nationalization of Land advocated by late writers, 

 such as Messrs. Wallace and George, and apparently adopted in New Zea- 

 land. The question, being a philosophical one, I have much pleasure in 

 presenting it for discussion to this Society. 



The law of gavelkind, before a.d. 1066, was the general custom of Eng- 

 land ; the feudal law of primogeniture succeeding it. The word is " derived 

 from the Saxon word ' gafol,' or, as it is otherwise written ' gavel,' which 

 signifies rent, or a customary performance of husbandry works', " and, there- 

 fore, the land which yielded this kind of service, in contra-distinction to 

 knight- service land, was called " gavelkind," that is " land of the kind that 

 yields rent."* 



Such is our best present authority for the word, but Lord Coke held a 

 different opinion. I am inclined to follow Lord Coke, although, perhaps, 

 in the opinion of feudal lawyers, the definition is a right one. It will be 

 necessary hereafter to enquire more fully into its origin. For present pur- 

 poses the explanation is sufficient. What I wish you to understand is, that 

 the custom of gavelkind means the compulsory subdivision of the land. 



As to descent. " Gavelkind land descends in the right line to all the 

 sons equally, being an exception to the law of primogeniture. In default of 

 sons, it descends to the daughters in the ordinary manner." 



" It is to be remarked, that though females, claiming in their own right, 

 are postponed to males, yet they may inherit, together with males, by repre- 

 sentation. If a man leave three sons, and purchase lands held in gavelkind, 

 and one of the sons dies in the lifetime of his father, leaving a daughter, she 

 will inherit the share of her father ; yet she is not within the words of the 

 custom, inter haredes masculos partibilis ; for she is no male, but the daughter 

 of a male, coming in his stead jure rep7-esentatio7ii$." 



" This custom extends also to the collateral line, for it has been resolved, 

 that where one brother dies without issue, all the other brothers shall in- 

 herit from him ; and, in default of brothers, their respective issue shall take 

 jure representationis. But, where the nephews succeed with an uncle, the 

 descent is per stirpes and not per capita ; and so from the nature of the thing 

 it must be, where the sons of several brothers succeed, no uncle surviving, 

 for though in equal degree, they stand in the place of their respective 

 fathers. "+ 



Wharton's Law Lexicon. t Ibid. 



