THE

LAW AND CUSTOM OF PRIMOGENITURE.

BY THE HONOURABLE GEORGE C. BRODRICK.

THE right of Primogeniture, the most distinctive feature of the English family system, is partly the creation of law, and partly the growth of custom. It is the growth of custom, so far as it has its origin in the voluntary action of feudal lords in making grants of land to be held by knight-service, and so far as it now depends on the preference given by parents to eldest sons in wills and settlements of property. It is the creation of law, so far as it is the fixed rule of succession to landed estates in case of intestacy; and so far, moreover, as the custom which prevails in wills and settlements has been determined or favoured by the law. The practice of entailing, which is often associated or confounded with the right of Primogeniture, is theoretically quite independent of that right, since it would. be as easy and as consistent with legal principles to entail an estate upon the youngest son as to entail it upon the eldest son. Again, the power of settling is theoretically altogether distinct from the power of entailing, since it extends to personalty as well as to land, and might be employed to keep land tied up, though entails should be abolished by law. Practically, however, settlements are the medium through which the entailing power is exercised, and form a powerful bulwark of Primogeniture, inasmuch as they enable successive heads of families, owing to it their own position, to secure its maintenance far into the lifetime of an unborn generation.

I. The so-called law of Primogeniture, applicable to inheritance of land ab intestato, is thus stated in "Blackstone's Commentaries ":" That the male issue shall be admitted before the female, and that, when there are two or more males in equal degree, the eldest only shall inherit, but the females all together." The right of Primogeniture, then, in the descent of land, exclusively belongs to eldest sons, and has no place among place among daughters. This fact, in itself, has a material bearing on its historical origin. The luminous researches of Sir H. Maine into ancient law tend strongly to support the opinion of Blackstone and other authorities, that we owe this institution to feudal society, not in the earlier, but in the later stage of its development. "Primogeniture did not belong to the customs which the barbarians practised on their first establishment within the Roman Empire." It was, indeed, directly at variance with the principles of equality which appear to have regulated all the primitive communities whose organisation, but lately revealed to historical students, furnishes the key to so many social problems otherwise insoluble. Even the patriarch, though lord of the family possessions, "held them as trustee for his children and kindred." The male children were recognised both in German and Hindoo jurisprudence as "co-proprietors with their father, and the endowment of the family could not be parted with, except by the consent of all its members.' Still less had the eldest son any advantage over the rest, either in those primeval family groups which held their domains in joint ownership, or under that more advanced system of land tenure, where partitions took place on the death of a parent, according to rules indicated by Tacitus with his usual pregnant brevity: "Hæredes successoresque sui cuique liberi, et nullum testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi." Sir H. Maine, after summing up the evidence on this part of the subject, concludes that "an absolutely equal division of assets among the male children at death is the practice most usual with society at the period

when family dependency is in the first stages of disintegration.

This conclusion, mainly founded on the legal history of Germany and India, is further confirmed by the great customary of Ireland, known as the Brehon Code, which not only adopts the rule of equal division, but extends the right of inheritance to bastard children. It is hardly necessary to state that a like rule, but applying only to legitimate sons, was established by the Anglo-Saxon custom of gavelkind, which still prevails, as of common right, over the greater part of Kent, and in a qualified form, governs the descent of copyhold lands in some other parts of the kingdom. The Athenian law of succession, under the Solonian constitution, was the same in all essential respects with the Anglo-Saxon. All the sons inherited equally, upon the death of their father, and the only privilege reserved to the eldest was that of exercising the first choice in the division. The right of Primogeniture, as Blackstone observes, seems to have been maintained by the Jews alone, among the oldest races whose laws are known to us; and even the Mosaic law assigned no more than a double portion to the eldest son, while the birthright" of pre-Mosaic times, as appears from the case of Reuben, might be set aside by the father.

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It is equally certain that Primogeniture is not derived from Roman law-the real fountain head of so many institutions and ideas once supposed to be indigenous. According to Roman law, "when the succession was ab intestato, and the group (of co-heirs) consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the slightest trace of Primogeniture." Intestacy, it is true, was rare among the Romans; but Sir H. Maine has given cogent reasons for believing that Roman wills, so far from being made for the purpose of accumulating property upon one representative of the family, were usually made for the contrary purpose of dividing the inheritance more equitably among all the children, and

defeating the rule which excluded sons already emancípated from succession ab intestato.

We may assume, then, with as much confidence as is possible in inquiries of this nature, that Primogeniture is essentially a feudal institution. It cannot be traced back to an age preceding feudalism; it was fully established in those countries, and those only, which are known to have adopted the feudal system, and it has been abandoned, for the most part, by those countries which have undergone a complete de-feudalising process. Moreover, though we are unable to specify the exact mode whereby this innovation was accomplished in the Dark Ages, we are able to account for it completely by the peculiar circumstances of that warlike and chaotic period. "While land," says Adam Smith, "is considered as the means only of subsistence and enjoyment, the natural law of succession divides it, like them, among all the children of the family; but when land was considered as the means, not of subsistence merely, but of power and protection, it was thought better that it should descend undivided to one." Such is the true historical explanation, as it is also the sound economical explanation, of the rise of Primogeniture. In ancient Rome, no less than in ancient Athens, the State was everything and the individual nothing; public rights dwarfed and overshadowed private rights; and family pride, intense as it was, could not indulge the passion of territorial aggrandisement, lest it should encounter the fierce jealousy of the republican spirit. In communities of the Oriental and old German type, different causes produced the same effect; land was regarded as a means of subsistence" for all the members of a primitive family or village, and the idea of vassals or tenants holding under a lord could scarcely have been conceived. Even when the German tribes first conquered the Roman Empire there is reason to believe that equality was the general principle of division. Each great chief, however, naturally received a larger share, and, being unable to cultivate the whole of it for himself, granted a part to retainers on conditions of