Note 241 — Book VII.
John Beames translation
The text receives considerable confirmation from the customs of Gavelkynd, highly probable as it is, that those customs are the valuable relics of the old common Law. “Let the goods of gavelkynd Persons,” says the Custumal of Kent, “be parted into three parts, after the funerals and the debts paid, if there be lawful Issue in life. So that the dead have one part, and his lawful sons and daughters another part, and the wife the third part: and, if there be no lawful issue in life, let the dead have the one half, and the wife alive the other half.” (vide Robins. on Gavelkynd, 287.) Lord Hale recognises the doctrine in the text, which, he tells us, was conformable to the ancient Law of England and the custom of the North to this day. (Hist. Com. Law. 192. 225.) It is likewise confirmed by the Regiam Majestatem, (L. 2. c. 37) and in substance by Bracton, and Fleta.—Yet, notwithstanding all this, Lord Coke, in his Commentary on Magna Carta, roundly asserts, that the doctrine laid down in the text, never was the Common Law; (2 Inst. 32) and, in support of this position, he cites a passage from Bracton.
To that passage, I have turned. Bracton there confirms the text of Glanville, and tells us, that the Law is so, unless in some cities and boroughs.—This leads him to mention the custom of London, and some floating opinions about its extent. He is of opinion, that the will of a citizen of London ought to be free, and unrestrained by any such limitation, as was imposed upon wills by the common Law. But Lord Coke has hastily assumed, that what Bracton spoke of the custom of London only, related to the kingdom at large. As this assumption fails, the deduction that flowed from it fails also. Sir William Blackstone, I find, has mentioned and refuted Lord Coke’s mistake. (2 Comm. 492) as has Mr. Somner in his Treatise on Gavelkynd, p. 96. To these authors, the reader may refer, as also to Reeves’s Hist. Eng. Law. 2. 334. 335. and F.N.B. 270. In concluding this note, I shall mention, the course of distribution of an Intestate’s Effects under the Laws of Canute, and the conqueror. Under the former, the Lord took the Heriot, and the remainder was distributed between the wife, children, and relatives, cuilibet pro dignitate quæ ad cum pertinet. (LL. Canuti, 68.) Under the latter, the children divided the Inheritance equally between them. (LL. Gul. Conq. 36.)