Knowledge for the Time / A Manual of Reading, Reference, and Conversation on Subjects of Living Interest, Useful Curiosity, and Amusing Research

by John Timbs

Customs of Gavelkind.

The well-known treatise, entitled “The Common Law of Kent; or the Customs of Gavelkind, with the Decisions concerning Borough-English,” by Thomas Robinson, with additions by J. D. Norwood, comprehends everything relating to the subject, embracing all that is useful in Somner, Tayler, and Lambarde, as well as a full account of both tenure and custumal. The work contains chapters on the etymology and significations of the word Gavelkind; on the antiquity and universality of partible descents in England; on the places out of Kent where the custom of gavelkind may be alleged and maintained; on the manner of pleading the custom, and the difference between that and other counties, and between the general and special customs; on what lands and tenements in Kent are of the nature of gavelkind; of the effect of the alteration of the tenure and of the disgavelling statutes; on the nature of gavelkind in reference to descent and partition, and the remedy for and against parceners by the custom; on the special customs incident to gavelkind lands in Kent, tenancy by the courtesy; of dower, of customary wardship, and of alienation by any infant tenant in gavelkind; the father to the bough and the son to the plough, and the custumal of Kent with precedents. The principal peculiarities which distinguish socage lands subject to the custom of gavelkind from free or common socage are—1. That the lands descend to all males in equal degree, in equal shares. 2. That the husband is tenant by the courtesy of his deceased wife’s lands, whether there were issue born alive or not. 3. That the widow is dowable of one-half instead of the third. 4. That an infant may alien by feoffment at the age of fifteen. 5. That upon a conviction of felony, there is no escheat by reason of corruption of blood; corruption of blood only occurs now in cases of treason, petit treason, and murder—see 54 G. 3, c. 145. These peculiarities do not recommend themselves as possessing so great advantages as to induce us to continue a system of law in Kent different from the rest of England. One of its great disadvantages is the difficulty of deducing the title, on account of the complicated subdivisions of the estate.

Treasure Trove.

Treasure Trove (from the French trouver, to find, trouvé, found) is the law by which money, or other treasure, found hidden, is adjudicated to the legal claimant.

In 1863, Mr. F. Peel, (one of the Secretaries to the Treasury,) stated in Parliament:

It was by no means an unreasonable or absurd law that when an article of gold or silver, belonging to an unknown owner, was found, it should be held to be the property of the Crown. The rights of the Crown in that respect were not, however, rigidly enforced. The articles found were usually returned to the person who was declared to have the best claim to them; or, if they were of historical interest, they were deposited in the British Museum or some local collection, and their intrinsic value was paid to the finder. What the Treasury desired was to obtain speedy information of the discovery of any treasure trove. The Circular which was issued some time ago was intended to instruct the finders of any treasures how to communicate with the Crown on the subject.[11] That Circular was subsequently withdrawn because it laid claim to antiquities which were not exactly treasures and did not belong to the Crown, and because it directed a reference to the wrong tribunal in cases of dispute. The draught of another circular was prepared; but so many difficulties beset the subject that it was not deemed advisable to issue it. If occasion should arise for a new order it would of course be made, but there appeared to be no necessity for one at present.

Sometimes, the right to the property is confirmed by the special conditions of the holding of the property whereon it is found. Thus, at the above date, Lord Palmerston related in Parliament that about two years ago some workmen, when digging a drain on one of his farms, found a gold torque, which his Lordship purchased of the man who discovered it, the value being about 30l. Lord Palmerston, however, had an investigation made of the original grant of the farm several centuries ago, and ascertained that it conferred on the grantee all the treasure-trove on the property; wherefore his Lordship felt entitled to keep the relic in question.

In January, 1863, eleven pounds’ weight of ancient gold ornaments were ploughed up in the neighbourhood of Hastings, and were sold as old brass, to a man who had been a Californian gold-digger, and recognised the metal as solid gold. He was taken into custody, but discharged, the magistrates having no jurisdiction in the matter, the power of making such an investigation being vested, according to an old statute, (4th Edward I.) in the coroner; the jury returning a verdict that the gold, (value about 530l.) the owner or owners not being known, was the property of the Queen, and that the persons accused had concealed the finding from the Queen and the coroner. This discovery of gold ornaments, and their almost total destruction, render it desirable that the law of Treasure-trove should be made clear to popular comprehension: that if it is not just, as seems to be the common impression, it should be amended, and the practice of the Crown, in exercising its conventional rights, defined. At any rate, so long as finders do not know that they will receive full value for discoveries, and have not confidence in their appraisement, it is in vain to expect country-folk will yield Treasure-trove to an authority they contemn. In some parts a belief is held that such discoveries entail condign punishment upon the finders: it was formerly a capital offence; it is now a misdemeanour, punishable by fine and imprisonment.

It is difficult to make the peasantry comprehend manorial rights. A man who finds a treasure in his own ground, and that treasure one which can have no living owner, naturally looks on himself as its rightful possessor. He has probably never heard of King Edward’s law of Treasure-trove, and a natural sense of justice does not guide him rightly in the matter. If a liberal reward were given—nearly the metal value of the trouvaille—it is quite possible that we might have become possessed of many precious relics which now are broken up and consigned to the melting-pot.