The Customs of Old England

by F. J. Snell

"Sutton: 'In many places in England a woman demands her dower by the writ "Unde nihil habet," which is a writ at common law, and yet, according to the custom of the country, she will recover for her dower a moiety of the tenements which belonged to her husband, where by common law she would have only the third part, and also in the case of tenements in some countries which are holden by knight-service the lord can avow the taking as good for cornage according to the law of the country; and yet the writ is at common law. And also in Gavelkind according to the custom [of Kent] the younger brother shall have as much as the elder; and yet one brother shall recover against the other brother by right "De rationabile parte," and by the "Nuper obiit," which are writs at common law. So in the present case.'

"Metingham [the judge]: 'Asseby, answer.'"

Now what was this custom? It is that known as "Borough English," and the reader will have already inferred from the report of the action that, wherever it prevailed, the youngest son claimed to succeed to his father's estate. It is therefore the antithesis of the right of primogeniture, whereby real estate falls to the eldest son. An old record given to print by the late Mr. Robert Dymond, F.S.A., exhibits in great detail the customs of the Manor of Braunton, in Devonshire, and among them is that of Borough English, or, as it is termed in local parlance, "cradle-land." This testimony is of peculiar interest, since the document comprises a provision for the assignment of the property in the not wholly improbable event of the family consisting entirely of daughters. The section touching upon Borough English is thus formulated:

"Heirs of the Youngest Holding

"Item, the Custome ys in every of the sayd manors that if eny manner of person or persons be seased of eny manner of land or tenements, rents or premises of the yonger holdyng liying withyn eny of the seid manors or liberties in fee symple or in fe tayle, in demeane or in usu, and have divers sonnys by dyvers venters, viz. by dyvers wyvys, or women by divers men, and dye, that then the yonger son of them shall inherite the seid lands and tenements with other the premyses in fe symple as in fe tayle that so descendith in the seid yonger holdyng in demeane or in use, except ther be any other estate made & proved to the contrary by wryting & if the[y] have no yssue butt all doughters that then the seid inheritance [is] to be parted betwene theym except any lawful wryting or state made to the contrary after the custom."

Neither of these rules of succession was in any way confined to the West of England. Indeed, the late Mr. T. W. Shore, who appears to have been quite an authority on the subject, affirms that "in a general way it may be said that the further we go from Kent the less numerous become the instances in any county of England." This statement is confirmed by a yet greater authority. "Borough English," says Elton, "was most prevalent in the S.E. districts, in Kent, Sussex, and Surrey, in a ring of manors encircling ancient London, and, to a less extent, in Essex and the East Anglian kingdom." Mr. E. A. Peacock, however, points out that there are in Lincolnshire seven places where the custom is still abiding—viz., Hibaldstow, Keadby, Kirton-in-Lindsey, Long Bennington, Norton (Bishops), Thoresby and Wathall; and he further calls attention to the fact, which is certainly most important, that the custom may be traced over nearly all Europe with the exception of Spain and Italy, and up to the boundaries of China and Arracan. The German name is jungsten-recht; and the practice for which it stands existed, amongst other places, at Rettenburg in Westphalia. How then did it become known as Borough English? The reason is suggested by the two sorts of tenure—Burgh Engloyes and Burgh Francoyes—which are found in different parts of the town of Nottingham in the reign of Edward III. Borough English was the native custom which had succeeded in holding its ground against the effects of the Norman Conquest.

As has been said, Borough English was in vogue all around London—at Lambeth, Vauxhall, Croydon, Streatham, Leigham Court, Shene or Richmond, Isleworth, Sion, Ealing, Acton, and Earl's Court. In some of these places—Fulham, Wimbledon, Battersea, Wandsworth, Barnes and Richmond—the "yonger holding" descended not only to males but to females; and at Lambeth (and at Kirton-in-Lindsey, in Lincolnshire) there existed the identical arrangement which has been found at Braunton, in Devon. This equal division between daughters Mr. Shore regards as an "intermediate stage between Borough English and Gavelkind." The latter is distinctively the "custom of Kent," and signifies that the land was "partible," and inherited by the sons in equal shares, the youngest son retaining the homestead, and making compensation to his brethren for this addition to his share. Borough English and gavelkind, therefore, though not the same, are near akin; and it is an interesting question which of the two was prior to the other. It may be that gavelkind is the older, and that Borough English is a remnant or distortion of what appears, on the face of it, a more equitable condition of things. On the other hand, gavelkind may have been, so to speak, grafted on a more simple usage which the community, through change of circumstances, had outgrown, and had ceased to possess the same justification as at first.

Why should the youngest son take the inheritance? One explanation is that he was presumed to be least able to provide for himself. This, however, expresses only half the truth. The other half has, we think, been furnished by Mr. Peacock:

"The most popular explanation in the last [eighteenth] century was the calumny known as mercheta mulierum, now known as a malignant fable popularized by novelists and playwrights. Another suggestion is that it is a custom that has survived from some prehistoric race; a third that it has grown up at different points...." Mr. Peacock regards the last as the most likely. "It is only when the population becomes relatively dense that land, apart from what it produces, is of any value. A time, however, would soon be reached when land would have a value of its own. The good soil would soon be taken up, and in the days of a primitive mode of culture third-rate land would be valueless. Then the house-father would be forced by circumstances to make provision, ere his death, for the sons sharing the ancestral domain between them.

"Here we have the origin of gavelkind—a form of devolution more widely spread than even ultimo-geniture or Borough English. Gavelkind, however, could be but a temporary provision. As the population grew, so it would be absolutely necessary that the young men of the household should make new settlements for themselves. This fact accounts in its measure for the vast shifting of the population that took place when the Roman Empire was in its protracted death-agony. The torrents of human beings which poured in on the decaying Empire were considered by the older historians as evidence of nomadic barbarism. We, with our present lights, say rather that they indicate a population too dense for their own homes to support.