Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol II).djvu/97

 Ch. 6. he had a power of deviing lands by will, before the tatute for that purpoe was made. 4. The lands decend, not to the eldet, younget, or any one on only, but to all the ons together ; which was indeed antiently the mot uual coure of decent all over England, though in particular places particular cutoms prevailed. Thee, among other properties, ditinguihed this tenure in a mot remarkable manner: and yet it is held to be only a pecies of a ocage tenure, modified by the cutom of the country; being holden by uit of court and fealty, which is a ervice in it's nature certain. Wherefore, by a charter of king John, Hubert arch-bihop of Canterbury was authorized to exchange the gavelkind tenures holden of the fee of Canterbury into tenures by knight-ervice; and by tatute 31 Hen. VIII. c. 3. for digavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be decendible for the future like other lands, which were never holden by ervice of ocage. Now the immunities which the tenants in gavelkind enjoyed were uch, as we cannot conceive hould be conferred upon mere ploughmen, or peaants: from all which I think it ufficiently clear, that tenures in free ocage are in general of a nobler original than is aigned by Littleton, and after him by the bulk of our common lawyers.

thus ditributed and ditinguihed the everal pecies of tenure in free ocage, I proceed next to hew that this alo partakes very trongly of the feodal nature. Which may probably arie from it's antient Saxon original; ince (as was before oberved ) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into uch arbitrary conequences as among the Normans. It eems therefore reaonable to imagine, that ocage tenure exited in much the ame tate before the conquet as after; that in Kent it was preerved with a high hand, as our hitories inform us it was; Rh