In dealing with the whole subject it will be convenient to state in the first place the nature of the rules of primogeniture as they now exist in England, with some notice of the exceptional usages which illustrate the meaning and origin of the system, and in the second place to give an account of those archaic customs in which we may find the actual origin of primogeniture before it was altered and extended by the policy of the feudal sovereigns, and by traditional usages which governed their succession to the throne. The English law provides that in ordinary cases of inheritance to land the rule of primogeniture shall prevail among the male children of the person from whom descent is to be traced, but not among the females; and this principle is applied throughout all the degrees of relationship. There are exceptions to this rule in the gavelkind lands of Kent, where all the males take equally in each degree, in the burgage tenements of certain ancient boroughs, where the descent is to the youngest son under the custom called “borough-English,” and in the copy hold lands of a great number of manors, where customs analogous to those of gavelkind and borough-English have existed from time immemorial. In another class of exceptions the rule of primogeniture is applied to the inheritance of females, who usually take equal shares in each degree. The necessity for a sole succession has, for example, introduced succession by primogeniture among females in the case of the inheritance of the crown, and a similar necessity led to the maxim of the feudal law that certain dignities and offices, castles required for the defence of the realm, and other inheritances under “the law of the sword” should not be divided, but should go to the eldest of the co-heiresses (Bracton, De Legibus, ii. c. 76; Co. Litt., 165a). In the case of dignities the rule of sole succession is adopted without reference to the right of primogeniture, the dignity lying in abeyance until the line of a particular co-heiress is selected by the sovereign as “the fountain of honour.” Another exceptional usage gives a preference to the line of the eldest daughter in the inheritance of customary holdings in the Isle of Man, in various lordships in Cumberland, Westmoreland, and Durham, as well as in isolated manors in Surrey and Sussex, and in other parts of the southern and midland counties. At Tynemouth in Northumberland it was the custom that the eldest daughter surviving her parents should inherit her father’s estate for her life, artd in some of the southern manors already mentioned the rule of primogeniture among females is not confined to daughters but is extended to the eldest sister or aunt, or even to female relations in more remote degrees. There are many other special customs by which the ordinary rules of descent are varied according to manorial usage, as that the youngest son shall inherit if the father dies seised, but otherwise the eldest, or that fee-simple shall go to the youngest and entailed land to the eldest, or that the special custom shall only affect lands of a certain value (as is said to be the usage in several manors near London), or that male and female issue should share together (as formerly was the practice at Wareham and Exeter and in certain other ancient boroughs, as well as in some of the copy holds belonging to the see of Worcester), or that the eldest or the youngest should be preferred among the daughters in the claim to a renewal of a customary estate for lives, with other analogous variations.

It will be seen that the English law of inheritance creates a double preference, subject to the exceptions already mentioned, in favour of the male over the female and of the firstborn among the males. This necessitates the rule of representation by which the issue of children are regarded as standing in the places of their parents. This is called “representative primogeniture.” The rule appears to have been firmly established in England during the reign of Henry III., though its application was favoured as early as the 12th century throughout the numerous contests between brothers claiming by proximity of blood and their nephews claiming by representation, as in the case of King John and his nephew Prince Arthur (Gianville, vii. c. 3; Bracton, De Legibus, ii. c. 30). We must now describe some of those ancient usages in which the origin of primogeniture is to be sought.

In addition to the rule of eldership as applied to inheritances of land there are traces of a multitude of customs which applied a similar rule to certain classes of “principals” or heirlooms, such as the best bed or piece of furniture, or horse and cart, and the like, which descended to the eldest son; and by a similar rule of the common law the ancient jewels of the crown are heirlooms which descend to the successor according to the rule of primogeniture. In the district of Archenfield near the Welsh border the house and lands were divided between the sons on their father’s death, but certain “principals” passed to the eldest as heirlooms, such as the best table and bed, “all which the men of Archenfield retained as derived to them from great antiquity, even before the Norman Conquest” (Quo Warranto Roll, 20 Edw. I., “Irchinfield ”).

A similar usage existed in some of the lands in Sussex belonging to Battle Abbey; and by the custom of the hundred of Stretford in Herefordshire the eldest son was entitled to keep the best article of every kind of chattel, as the best of the chests and cups, or the best table and chair (Co. Litt., 18b). This right resembles in many respects the privilege of the youngest co-heir to take the hearthplace or covert del astre, which formerly prevailed in the gavelkind lands of Kent according to the Kentish custumal, and privileges of the same kind which were customary in the district round Amiens and in many parts of Flanders under the tenures called “maineté,” “quévaise,” and “madelstad” (Bouthors, “Coutûmes Locales du Bailliage d’Amiens,” Cout. Gén., i. 699, ii. 901). This exceptional law does not seem to have prevailed in Scotland or Ireland; but in the Shetland Islands it appears to have been the custom, as also in several of the Continental instances, that the youngest child of either sex should have the house when the property came to division. Similar benefits were reserved to the youngest son by the Welsh laws, which provided that when brothers divided a patrimony containing a habitation “the youngest should have the principal messuage and all the buildings and eight acres of land, and the hatchet, the boiler, and the ploughshare,” and a preference of the same kind prevailed in some parts of Devon and Cornwall and in very extensive lordships in Brittany. Traces of the same or analogous usages may be found in many parts of Germany, Switzerland, Russia, Hungary, and other countries.

The custom of giving a preferential birthright to the eldest son or child did not prevail so extensively in ancient times, though it was known in some parts of Germany as well as in France, where it is called “le préciput.” The eldest son or eldest child got the house and a piece of furniture and a plot of land “as far as a chicken could fly,” as being traditionally exempt from the general partition. In the Ordinances of St Louis we find a rule that a gentleman having daughters only should divide the rest of his property equally among them, “mais l’aînée outre sa portion aura la maison paternelle et le vol du chapon.”

Instances of this kind are found among the rural customs of Εngland and Normandy, which serve to indicate the source of one part at least of the English system of primogeniture. The rights of the eldest, however, have been collected from many quarters. Sir Henry Maine has traced the modern form of this system to the growth of the power of the chieftain and its development in feudal times. The mediaeval jurists are responsible for many exaggerations of the principle of sole succession to rights of dominion. But it is at any rate important to observe that there were Teutonic customs giving a benefit of eldership before the feudal system was invented, which appear to have much less connexion with the power of the patriarch or chieftain than with the sentiment that gave the father’s house to the eldest son under the Athenian law or secured to him a larger set of rights under the Laws of Manu (Demosth., Pro Phorm., 34; Coulanges, Cité Antique, c. 6). It should also be remembered that at least one tribe of Germans was accustomed in the days of Tacitus to allow the father’s war-horse to descend as an heirloom or “principal” to the eldest son (Germ., cc. 18, 20, 32), and that the strict rule of primogeniture appears to have existed in Scandinavia from the most ancient times. To the English instances already mentioned may be added a passage from Bede’s life of St Benedict which shows that some substantial birthright was reserved in his time for the eldest son, when a patrimony had to be divided according to the

Northumbrian laws, “Quomodo terreni parentes, quem primum fuderint, eum principium liberorum suorum cognoscere et caeteris praeferendum ducere solent” (Bede, Vit. Bened., s. 11). This may refer to some system of double portions, like the Jewish rule as to “birthright” (Deut. xxi. 15, 16), or it may denote a preference in partition which secured the dwelling-house or principal chattels to “the first-fruits of the family.” A passage from Glanville, which is applicable to England and Scotland in the 12th century, shows that in the case of a rustic holding the custom of the district determined whether it should be divided among all the sons or reserved for the eldest or youngest. “If he were a free sokeman, the inheritance in that case will be divided among all the sons according to their number in equal shares, if the holding was partible by ancient custom, the chief messuage being, however, reserved for the first-born son in honour of his seniority, but on the terms of his making compensation to his brothers from the rest of his property. But if it was not anciently partible, .then by the custom of some places the first-born son will take the whole inheritance, but by other customs the youngest son is the heir” (Glanville, vii. c. 3). In the time of Bracton, a century later, the presumption that primogeniture was an exceptional rule had been reversed, and special proof was required in freehold lands of a custom to exclude the eldest. He still speaks, however, of customs in favour of the eldest or youngest son in the case of the “villein-socage” holdings, which afterwards developed into copyholds. “When a free sokeman dies leaving several heirs to share, if the inheritance is partible from ancient times, they shall all have their equal shares; and if there is only one messuage that shall remain entire for the eldest, but so that the others shall have up to its value out of the common stock. But if the inheritance has not been divided from ancient times then it shall remain to the eldest. But if it be villein-socage then the custom of the place is to be observed, for it is the usage in some parts for the youngest to be preferred to the eldest, or the contrary” (De Leg., ii. c. 76). The ancient rule of inheritance among socage tenants in Scotland was the same as that described by Glanville.

These customs of “rural primogeniture” can be traced, as we have seen, in some parts of the Continent, but their existence is rarely to be distinguished where the influence of the Roman law prevailed in the barbarian kingdoms, as in Italy, Spain, and Provence. In Normandy and Picardy, however, these usages long remained in an exceptionally vigorous form,—a fact which may be due to the Scandinavian origin of the Normans, or perhaps, as Richebourg suggested in his note on the Coutûme de Caux, the custom may have lasted down as a tradition from Gaulish times. The laws of the Channel Islands still preserve a special benefit for the eldest son; but the Coutumier Général affords several examples of a more ample birthright which can hardly be attributed to any feudal influence. By the custom of Normandy “the eldest son in right of his eldership might take and choose as a préciput such fief or terre noble as he pleased; and if there were but one manoir roturier on the land the eldest before the division might declare that he retained it with court and garden, making recompense to his younger brothers” (Coutûme de Normandie, 337, 356). “L’aisné faisant partage . . . peut retenir par précipu le lieu chevels . . . anciennement appelé hébergement, soit en ville ou en champs, de quelque estendue qu’il soit” (“Usage de Bayeux,” Cout. Gén., iv. 77, 78, 94). The usage of the district of Caux, on the frontier of Picardy, was even more favourable to the eldest son: “Demeurant le manoir et pourpris en son intégrité au profit de l’aisné sans qu’il en puisse être disposé à son préjudice, ny qu’il soit tenu en faire récompense ausdits puisnés” (“Suce. Bailliage de Caux,” ibid., 74).

This last instance appears to give us a clue to the origin of the strict English primogeniture as applied to the rustic holdings, sometimes called fiefs de roturier or “ploughman’s fee,” which in most parts of the Continent, as in almost every district in England before the Norman Conquest, descended to all the sons in equal shares, with some customary privilege or birthright in favour of the eldest or youngest son. The strict rule of the custom of Caux was deliberately applied by the Norman kings of England not only to military fiefs but also (wherever it was possible) to agricultural tenancies. This was effected partly by reversing the presumption of partibility, as shown by the passage from Bracton cited above, and partly by direct enactments of the king or of his greater tenants, who assumed or received the prerogative of abolishing inconvenient modes of inheritance. The urban customs of the “French” portions of Hereford and Nottingham appear to have been altered in this way. (See Municipality.) Simon de Montfort, by his charter in 1255, granted to the burgesses of Leicester that the eldest son should be his father’s heir instead of the youngest; and an analogous right was exercised under the name of “disgavelling” by the archbishop of Canterbury in Kent. About the reign of Edward II. the idea first began to prevail that such alterations of descent could not be carried out without the consent of parliament, and it was eventually held that even the king had no such prerogative (Robinson, Gavelkind, i. c. 5). The earlier view is very clearly stated in a charter by which Edward I. disgavelled certain lands of John de Cobham (Charter Rolls, 4 Edw. I., No. 17). The most important clauses of this document were in effect as follows :—

“It pertains to our prerogative to abolish such laws and customs as diminish instead of increasing the strength of the kingdom, or at least to change them by our special favour in the case of our deserving and faithful followers; and since it has often happened by the Kentish custom that lands, which when undivided in certain hands are quite sufficient for the service of the state and the maintenance of many, are afterwards divided and broken up among co-heirs into so many parts and particles that no one portion suffices even for its owner’s maintenance, we therefore grant to J. de Cobham that all the gavelkind lands and tenements which he now holds in fee simple shall descend to his eldest son or other heir at common law in the same way as his estates held by serjeanty or knight-service.”

A similar change of tenure was effected by Acts of parliament for many estates in Kent in 11 Hen. VII., 15 Hen. VIII., 31 Hen. VIII., 2 and 3 Edw. VI., 1 Eliz., 8 Eliz., and 21 James I., and primogeniture was introduced in the same way into the soke of Oswaldbeck in Nottinghamshire in 32 Hen. VIII. and into the city of Exeter by the Act of 23 Eliz. c. 12. The customary descent of copyhold lands (where primogeniture had not been established in ancient times by the ordinances of the lords or by an application of the current presumption) has been changed in a great number of cases by other private Acts of parliament or has been destroyed by enfranchisement. The Welsh custom of partition was altered in some respects, especially by forbidding the inheritance of bastards, by the Statute of Wales passed in the 12 th year of Edward I.; the custom as modified was confirmed when the principality was united in 27 Hen. VIII. to the kingdom of England, but it was soon afterwards enacted by the Act 34 and 35 Hen. VIII. c. 26 that freehold lands in Wales should thenceforth be “holden as English tenure to all intents according to the common laws of this realm of England, and not be partible amongst heirs-male after the custom of gavelkind as heretofore in divers parts of Wales was used and accustomed.” The change in the Irish customs was carried out in a different way. There is evidence that before the adoption of the English law several systems of customary inheritance were known in Ireland.

Besides the law of tanistry, which will be described afterwards, there are indications in the Brehon tracts not only of arrangements in favour of the youngest branch, such as have been already mentioned, but also of a preference in some cases for the eldest son, “the cattle and land being equally divided, but the house and offices going in addition to his own share to the eldest son” (Hearn, Aryan Household, 80, 82; O’Curry, Lectures, clxxix.). Besides these cases we have the record of that system of “Irish gavelkind” which was described by Spenser and Davis, and which has been shown by Sir H. S. Maine to be closely connected with very early Aryan institutions still surviving in practice among the Hindus.

“The lands in that kingdom possessed by the mere Irish were divided into several territories or countries, and the inhabitants of every Irish t country ’ were divided into several septs or lineages, in every one of which there was a chief called Canfinny or ‘ caput cognationis,’ and all the inferior tenancies in these territories were partible among the males in gavelkind; but the estate which these inferior tenants had was not an estate of inheritance, but a temporary or transitory possession, for these lands were not partible among the next heirs of him that died, but among all the males of this sept or clan in this manner: the Canfinny (who was generally the oldest man in the sept) made all these partitions according to his discretion. This Canfinny, after the death of every one who had a competent portion of land, assembled all the sept and having put all their possessions into hotchpot made a new partition of the whole; in which partition . . . he allotted to every one of the sept according to his age a better or larger part” (Robinson, Gavelkind, i. c. 2; Davis’s Reports, 37, “Case of Tanistry ”).

This is obviously the description of a joint family similar to those which have been found in the Scottish Highlands, in France, in the Slavonic countries, and in India, and, as it would seem, the various modes and periods of redistributing...