Note 225 — Book VII.

Socage Lands are asserted to have remained partible long after the Conquest, and, as we have no account of the precise period when the alteration was made in the descent of these Lands from all the Sons equally to the Eldest Son only, it is probable, as Mr. Robinson suggests, that the alteration was not effected at once nor by any written Law, but crept in insensibly and by degrees, in imitation of the Descents of Knight’s Service, and from the pride of the Socage Tenant, emulous that his Eldest Son should equal in state and splendor the military Tenant. “But this alteration began to appear more plainly in the time of Henry the 2nd. for, according to Glanville, who wrote in that Reign, in order to entitle the Sons to take equally, it was not only necessary that the Land should be holden in free socage, but further quod antiquitus divisum”—and, having cited the present and following passages of our author, Mr. Robinson proceeds “So that according to this account, it is difficult to say, what was then the common Law with regard to descents of socage Lands, or whether every person entitling himself to them by Inheritance, was not obliged to set out the special custom of the place. The same author, indeed, in other parts of his Book, speaks of the partibility of these Lands more generally, and in such manner as may induce a belief, that it remained the common Law at that time: Plurium item hæredum conjunctio mulierum scil. in feodo militari vel masculorum vel fœminarum in libero socagio. (L. 13. c. 11.) And, in another very remarkable passage, wherein he shews, that the Law so greatly respected this equal division among the Sons, as not to permit the Father even in his lifetime to prefer a favorite child to any of the rest, by advancing him beyond his proportionable part”—referring to the first chapter of the present Book. (Robinson on Gavelkynd 24. 25.) The two latter positions referred to by Mr. Robinson, as laid down by Glanville, may be accounted for by supposing, that our author speaks with reference to Land “antiquitus divisa.” “Although,” says Lord Hale, commenting upon a passage in our author’s text, “Custom directed the Descent variously, either to the Eldest or Youngest, or to all the Sons, yet, it seems, that at this time, Commune Jus, or Common right spoke for the Eldest Son to be Heir, no custom intervening to the contrary.” (Hist. Com. Law 226.) To conclude, the right of primogeniture every day making a greater progress had, as Mr. Robinson observes, in the Reign of King John fairly got the upper hand of the partible descent, the presumption then being that even Socage Lands (unless in Kent) were descendible to the Eldest Son only, unless the contrary were proved. (26.) Upon the doctrine of the text and the subject of this note, see the authors referred to; also Bracton 76. a. Fleta L. 5. c. 9. s. 15. Mirror c. 1. s. 3. and Co. Litt. 14. a.