Gavelkind. The origin of this legal term is involved in some obscurity, and more than one derivation has been given. Lord Coke's opinion was that it was derived from gave all kinde (Tent. gif eal cyn), meaning the custom which gives right of succession in land to all children equally. The better opinion, however, seems to be that it is derived from the Saxon word gavel (or gafol), which signifies rent or customary services in lieu thereof, and kind—i.e. nature or quality. Thus gavelkind was used to express land which paid this kind of rent-service, as distinguished from the ordinary feudal tenure of knight-service. It is the opinion of Blackstone, endorsed by Skeat, that the true origin of this custom is Celtic (Irish, gabhaileine), while some recent investigators—as Elton in his Origins of English History (1881)—think that we must look for its source even farther back in pre-Aryan times.
Before 1066 gavelkind prevailed all over England and Wales (see Stephen's Com. i. 213), but with the Norman Conquest came feudal laws, and the right of primogeniture took its place. At the present day it survives only in the county of Kent and a few isolated places in England. It was specially abolished as regards Wales by 34 and 35 Henry VIII. chap. 26. In Kent, however, the custom is so universal that it is presumed by the courts of law to exist in any question affecting Kentish lands, and it is necessary in such case to plead that the lands have been disgavelled by special act of parliament. The reason why the county of Kent should have been permitted to retain this ancient tenure as one of its 'liberties,' in view of the almost universal introduction of feudal rules into the rest of England, is not clear. There is an explanation of a legendary character that William the Conqueror owed his life to some Kentish men, who immediately after the battle of Hastings surrounded him with boughs so as to form a sort of moving wood, and that he out of gratitude thereupon confirmed their ancient rights to them and their fellows.
The main characteristic of the tenure of gavelkind is that succession to the land passes in the right line to all the sons equally and not to the eldest son. Failing sons, it goes to all the daughters as heirs-portioners. Further, the right of representation takes place, so that, if one of several sons should die, his issue (daughters in this event equally with sons) take in his place. Succession in the collateral line is similar; for, if one brother die, the succession passes to all his brothers equally and their issue jure representationis. In addition to these peculiarities in the matter of succession, the following features of gavelkind tenure may be noticed: (1) A wife takes by way of dower one-half instead of one-third of the land, and a husband becomes tenant by courtesy of one-half of the land (whether issue have been born or not) so long as he remains unmarried; (2) the tenant is of age sufficient to make a contract or alienate his estate by feoffment at the age of fifteen; (3) the gavelkind lands did not formerly escheat in case of an attainder for felony, the maxim being 'the father to the bough, the son to the plough;' but all lands now stand in the same position in this respect (Williams, On Real Property, 130).