Chapter 7. Ancient and Modern Ideas Respecting Wills and Successions

　　Although there is much in the modern European Law of Wills which is intimately connected with the oldest rules of Testamentary disposition² practised among men， there are nevertheless some important differences between ancient and modern ideas on the subject of Wills and Successions. Some of the points of difference I shall endeavour to illustrate³ in this chapter.

　　At a period， removed several centuries from the era of the Twelve Tables， we find a variety of rules engrafted on the Roman Civil Law with the view of limiting the disinherison of children； we have the jurisdiction⁴ of the Praetor very actively⁵ exerted in the same interest； and we are also presented with a new remedy very anomalous⁶ in character and of uncertain origin， called the Querela Inofficiosi Testamenti， "the Plaint of an Unduteous Will，" directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's Testament¹. Comparing this condition of the law with the text of the Twelve Tables which concedes in terms the utmost liberty of Testation， several writers have been tempted⁷ to interweave a good deal of dramatic incident into their history of the Law Testamentary. They tell us of the boundless⁸ license⁹ of disinherison in which the heads of families instantly began to indulge， of the scandal and injury to public morals which the new practices engendered¹⁰， and of the applause of all good men which hailed the courage of the Praetor in arresting the progress of paternal¹¹ depravity. This story， which is not without some foundation for the principal fact it relates， is often so told as to disclose very serious misconceptions of the principles of legal history. The Law of the Twelve Tables is to be explained by the character of the age in which it was enacted¹². It does not license a tendency which a later era thought itself bound to counteract¹³， but it proceeds on the assumption that no such tendency exists， or， perhaps we should say， in ignorance of the possibility of its existence. There is no likelihood that Roman citizens began immediately to avail themselves freely of the power to disinherit. It is against all reason and sound appreciation¹⁴ of history to suppose that the yoke¹⁵ of family bondage¹⁶， still patiently submitted to， as we know， where its pressure galled¹⁷ most cruelly， would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of Testaments¹⁸ in the only case in which it was thought possible that they could be executed， viz. on failure of children and proximate kindred. It did not forbid the disinherison of direct descendants， inasmuch as it did not legislate²⁰ against a contingency²¹ which no Roman lawgiver of that era could have contemplated²². No doubt， as the offices of family affection progressively lost the aspect of primary personal duties， the disinherison of children was occasionally attempted. But the interference of the Praetor， so far from being called for by the universality of the abuse， was doubtless first prompted by the fact that such instances of unnatural²⁴ caprice were few and exceptional， and at conflict with the current morality.

　　The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is remarkable²⁵ that a Will never seems to have been regarded by the Romans as a means of disinheriting a Family， or of effecting the unequal distribution of a patrimony²⁶. The rules of law preventing its being turned to such a purpose， increase in number and stringency²⁷ as the jurisprudence unfolds itself； and these rules correspond doubtless with the abiding²⁸ sentiment of Roman society， as distinguished²⁹ from occasional variations of feeLing in individuals. It would rather seem as if the Testamentary Power were chiefly vaLued for the assistance it gave in making provision for a Family， and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it. If this be the true reading of the general sentiment on the point， it explains to some extent the singular horror of Intestacy which always characterised the Roman. No evil seems to have been considered a heavier visitation than the forfeiture³² of Testamentary privileges； no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will. The feeling has no counterpart， or none that is easily recognisable， in the forms of opinion which exist at the present day. All men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law； but the Roman passion for Testacy is distinguished from the mere³³ desire to indulge caprice by its intensity³⁴； and it has of course nothing whatever in common with that pride of family， exclusively the creation of feudalism， which accumulates one description of property in the hands of a single representative. It is probable， a priori， that it was something in the rules of Intestate Succession which caused this vehement³⁶ preference for the distribution of property under a Testament over its distribution by law. The difficulty， however， is， that on glancing at the Roman Law of Intestate Succession， in the form which it wore for many centuries before Justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers， it by no means strikes one as remarkably³⁷ unreasonable³⁸ or inequitable. On the contrary， the distribution it prescribes is so fair and rational， and differs so Little from that with which modern society has been generally contented³⁹， that no reason suggests itself why it should have been regarded with extraordinary distaste， especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. We should rather have expected that， as in France at this moment， the heads of families would generally save themselves the troubLe of executing a Will， and allow the Law to do as it pleased with their assets. I think， however， if we look a little closely at the pre-Justinianean scale of Intestate Succession， we shall discover the key to the mystery. The texture⁴⁰ of the law consists of two distinct parts. One department of rules comes from the Jus Civile， the Common-Law of Rome； the other from the Edict of the Praetor. The Civil Law， as I have already stated for another purpose， calLs to the inheritance only three orders of successors in their turn； the Unemancipated children， the nearest class of Agnatic kindred， and the Gentiles. Between these three orders， the Praetor interpolates various classes of relatives， of whom the Civil Law took no notice whatever. Ultimately， the combination of the Edict and of the Civil Law forms a table of succession not materially different from that which has descended⁴² to the generality of modern codes.

　　The point for recollection is that there must anciently have been a time at which the rules of the Civil Law determined⁴³ the scheme of Intestate Succession exclusively， and at which the arrangements of the Edict were non-existent， or not consistently carried out. We cannot doubt that， in its infancy⁴⁴， the Praetorian jurisprudence had to contend with formidable obstructions⁴⁵， and it is more than probable that， long after popular sentiment and legal opinion had acquiesced⁴⁷ in it， the modifications⁴⁸ which it periodically introduced were governed by no certain principles， and fluctuated with the varying bias⁴⁹ of successive magistrates⁵⁰. The rules of Intestate Succession， which the Romans must at this period have practised， account， I think —— and more than account —— for that vehement distaste for an Intestacy to which Roman society during so many ages remained constant. The order of succession was this ： on the death of a citizen， having no will or no valid⁵¹ will， his Unemancipated children became his Heirs. His emancipated⁴¹ sons had no share in the inheritance. If he left no direct descendants living at his death， the nearest grade of the Agnatic kindred succeeded， but no part of the inheritance was given to any relative united （however closely） with the dead man through female descents. All the other branches of the family were excluded， and the inheritance escheated to the Gentiles， or entire body of Roman citizens bearing the same name with the deceased. So that on failing to execute an operative Testament， a Roman of the era under examination left his emancipated children absolutely without provision， while， on the assumption that he died childless， there was imminent⁵² risk that his possessions would escape from the family altogether， and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same gens to be descended from a common ancestor. The prospect⁵³ of such an issue is in itself a nearly sufficient explanation of the popular sentiment； but， in point of fact， we shall only half understand it， if we forget that the state of things I have been describing is likely to have existed at the very moment when Roman society was in the first stage of its transition from its primitive⁵⁴ organisation⁵⁵ in detached families. The empire of the father had indeed received one of the earliest blows directed at it through the recognition of Emancipation⁵⁶ as a legitimate⁵⁷ usage， but the law， still considering the Patria Potestas to be the root of family connection， persevered⁵⁸ in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood. We cannot， however， for a moment suppose that the limitations of the family imposed by legal pedantry⁵⁹ had their counterpart in the natural affection of parents. Family attachments⁶⁰ must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the Patriarchal system； and， so little are they likely to have been extinguished by the act of emancipation， that the probabilities are altogether the other way. It may be unhesitatingly taken for granted that enfranchisement⁶¹ from the father's power was a demonstration⁶²， rather than a severance⁶³， of affection —— a mark of grace and favour accorded to the best-beloved and most esteemed⁶⁴ of the children. If sons thus honoured above the rest were absolutely deprived of their heritage by an Intestacy， the reluctance⁶⁵ to incur⁶⁶ it requires no farther explanation. We might have assumed a priori that the passion for Testacy was generated by some moral injustice⁶⁷ entailed⁶⁸ by the rules of Intestate succession； and here we find them at variance⁶⁹ with the very instinct by which early society was cemented together. It is possible to put all that has been urged in a very succinct⁷⁰ form. Every dominant⁷¹ sentiment of the primitive Romans was entwined with the relations of the family. But what was the Family？ The Law defined it one way —— natural affection another. In the conflict between the two，the feeling we would analyse grew up， taking the form of an enthusiasm for the institution by which the dictates⁷³ of affection were permitted to determine the fortunes of its objects.

　　I regard， therefore， the Roman horror of Intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the Family. Some passages in the Roman Statute⁷⁴-Law， and one statute in particular which limited the capacity for inheritance possessed⁷⁵ by women， must have contributed to keep alive the feeling； and it is the general belief that the system of creating Fidei-Commissa， or bequests⁷⁷ in trust， was devised to evade⁷⁸ the disabilities imposed by those statutes⁷⁹. But the feeling itself， in its remarkable intensity， seems to point back to some deeper antagonism⁸⁰ between law and opinion； nor is it at all wonderful that the improvements of jurisprudence by the Praetor should not have extinguished it. Everybody conversant⁸¹ with the philosophy of opinion is aware that a sentiment by no means dies out， of necessity， with the passing away of the circumstances which produced it. It may long survive them； nay⁸²， it may afterwards attain⁸³ to a pitch and climax⁸⁴ of intensity which it never attained⁸⁵ during their actual continuance.

　　The view of a Will which regards it as conferring the power of diverting property from the Family， or of distributing it in such uneven⁸⁶ proportions as the fancy or good sense of the Testator may dictate⁷²， is not older than that later portion of the Middle Ages in which Feudalism had completely consolidated⁸⁷ itself. When modern jurisprudence first shows itself in the rough， Wills are rarely allowed to dispose with absolute freedom of a dead man's assets. Wherever at this period the descent of property was regulated by Will —— and over the greater part of Europe moveable or personal property was the subject of Testamentary disposition —— the exercise of the Testamentary power was seldom allowed to interfere²³ with the right of the widow to a definite share， and of the children to certain fixed⁸⁸ proportions， of the devolving inheritance. The shares of the children， as their amount shows， were determined by the authority of Roman law. The provision for the widow was attributable to the exertions⁸⁹ of the Church， which never relaxed its solicitude⁹⁰ for the interest of wives surviving their husbands —— winning， perhaps， one of the most arduous⁹¹ of its triumphs when， after exacting⁹² for two or three centuries an express promise from the husband at marriage to endow his wife， it at length succeeded in engrafting the principle of Dower on the Customary Law of all Western Europe. Curiously⁹³ enough， the dower of lands proved a more stable institution than the analogous⁹⁴ and more ancient reservation of certain shares of the personal property to the widow and children. A few local customs in France maintained the right down to the Revolution， and there are traces of similar usages in England； but on the whole the doctrine⁹⁵ prevailed that moveables might be freely disposed of by Will， and， even when the claims of the widow continued to be respected， the privileges of the children were obliterated⁹⁶ from jurisprudence. We need not hesitate to attribute the change to the influence of Primogeniture. As the Feudal³⁵ law of land practically disinherited all the children in favour of one， the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. Testaments were the principal instruments employed in producing inequality， and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a Will. But， though the liberty of bequest⁷⁶， enjoyed through Testaments， was thus an accidental fruit of Feudalism， there is no broader distinction than that which exists between a system of free Testamentary disposition and a system， like that of the Feudal land-law， under which property descends⁹⁷ compulsorily⁹⁸ in prescribed lines of devolution. This truth appears to have been lost sight of by the authors of the French Codes. In the social fabric⁹⁹ which they determined to destroy， they saw Primogeniture resting chiefly on Family settlements， but they also perceived that Testaments were frequently employed to give the eldest¹⁰⁰ son precisely¹⁰¹ the same preference which was reserved to him under the strictest of entails¹⁰². In order， therefore， to make sure of their work， they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements， but they almost expelled Testamentary succession from the law， lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. The result is that they have established a system of small perpetual entails， which is infinitely¹⁰³ nearer akin³⁰ to the system of feudal Europe than would be a perfect liberty of bequest. The land-law of England， "the Herculaneum of Feudalism，" is certainly much more closely allied¹⁰⁴ to the land-law of the Middle Ages than that of any Continental¹⁰⁵ country， and Wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. But nevertheless feeling and opinion in this country have been profoundly affected¹⁰⁶ by the practice of free Testamentary disposition； and it appears to me that the state of sentiment in a great part of French society， on the subject of the conservation of property in families， is much liker that which prevailed through Europe two or three centuries ago than are the current opinions of Englishmen.

　　The mention of Primogeniture introduces one of the most difficult problems of historical jurisprudence. Though I have not paused to explain my expressions， it may have been noticed that I have frequently spoken of a number of "coheirs" as placed by the Roman Law of Succession on the same footing with a single Heir. In point of fact， we know of no period of Roman jurisprudence at which the place of the Heir， or Universal Successor， might not have been taken by a group of co-heirs. This group succeeded as a single unit， and the assets were afterwards divided among them in a separate legal proceeding¹⁰⁷. When the Succession was ab intestato， and the group 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 faintest trace of Primogeniture. The mode of distribution is the same throughout archaic¹⁰⁸ jurisprudence. It certainly seems that， when civil society begins and families cease to hold together through a series of generations， the idea which spontaneously suggests itself is to divide the domain¹⁰⁹ equally among the members of each successive generation， and to reserve no privilege to the eldest son or stock. Some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the Roman. Among the Hindoos， the instant a son is born， he acquires a vested right in his father's property， which cannot be sold without recognition of his joint¹¹⁰ ownership. On the son 's attaining¹¹¹ full age， he can sometimes compel a partition of the estate even against the consent of the parent； and， should the parent acquiesce⁴⁶， one son can always have a partition even against the will of the others. On such partition taking place， the father has no advantage over his children， except that he has two of the shares instead of one. The ancient law of the German tribes was exceedingly similar. The allod or domain of the family was the joint-property of the father and his sons. It does not， however， appear to have been habitually¹¹² divided even at the death of the parent， and in the same Way the possessions of a Hindoo， however divisible theoretically， are so rarely distributed in fact， that many generations constantly succeed each other without a partition taking place， and thus the Family in India has a perpetual tendency to expand into the Village Community， under conditions which I shall hereafter attempt to elucidate¹¹³. All this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration¹¹⁴. Here then emerges the historical difficulty of Primogeniture. The more clearly we perceive that， when the Feudal institutions were in process of formation， there was no source in the world whence they could derive¹¹⁵ their elements but the Roman law of the provincials¹¹⁷ on the one hand and the archaic customs of the barbarians¹¹⁹ on the other， the more are we perplexed¹²⁰ at first sight by our knowledge that neither Roman nor barbarian¹¹⁸ was accustomed to give any preference to the eldest son or his line in the succession to property.

　　Primogeniture did not belong to the Customs which the barbarians practised on their first establishment within the Roman Empire. It is known to have had its origin in the benefices or beneficiary gifts of the invading chieftains. These benefices， which were occasionally conferred by the earlier immigrant kings， but were distributed on a great scale by Charlemagne， were grants of Roman provincial¹¹⁶ land to be holden by the beneficiary on condition of military service. The allodial proprietors¹²² do not seem to have followed their sovereign on distant or difficult enterprises， and all the grander expeditions of the Frankish chiefs and of Charlemagne were accomplished¹²³ with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure¹²⁴ of their land. The benefices， however were not at first in any sense hereditary¹²⁵. They were held， at the pleasure of the grantor， or at most for the life of the grantee； but still， from the very outset， no effort seems to have been spared by the beneficiaries to enlarge the tenure， and to continue their lands in their family after death. Through the feebleness of Charlemagne's successors these attempts were universally successful， and the Benefice gradually transformed itself into the hereditary Fief. But， though the fiefs were hereditary， they did not necessarily descend¹⁹ to the eldest son. The rules of succession which they followed were entirely¹²⁶ determined by the terms agreed upon between the grantor and the beneficiary， or imposed by one of them on the weakness of the other. The original tenures were therefore extremely various； not indeed so capriciously variouS as is sometimes asserted， for all which have hitherto been described present some combination of the modes of succession familiar to Romans and to barbarians， but still exceedingly miscellaneous. In some of them， the eldest son and his stock undoubtedly¹²⁷ succeeded to the fief before the others， but such successions， so far from being universal， do not even appear to have been general. Precisely the same phenomena¹²⁸ recur¹²⁹ during that more recent transmutation of European society which entirely substituted the feudal form of property for the domainial （or Roman） and the allodial （or German）。 The allods were wholly absorbed by the fiefs. The greater allodial proprietors transformed themselves into feudal lords by conditional¹³⁰ alienations of portions of their land to dependants¹³¹； the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain， and receiving it back at his hands on condition of service in his wars. Meantime， that vast mass of the population of Western Europe whose condition was servile or semi-servile —— the Roman and German personal slaves， the Roman coloni and the German lidi —— were concurrently¹³² absorbed by the feudal organisation， a few of them assuming a menial relation to the lords， but the greater part receiving land on terms which in those centuries were considered degrading. The tenures created during this era of universal infeudation were as various as the conditions which the tenants¹³⁴ made with their new chiefs or were forced to accept from them. As in the case of the benefices， the succession to some， but by no means to all， of the estates followed the rule of Primogeniture. No sooner， however， has the feudal system prevailed throughout the West， than it becomes evident that Primogeniture has some great advantage over every other mode of succession. It spread over Europe with remarkable rapidity， the principal instrument of diffusion¹³⁵ being Family Settlements， the Pactes de Famille of France and Haus-Gesetze of Germany， which universally stipulated¹³⁶ that lands held by knightly¹³⁷ service should descend to the eldest son. Ultimately the law resigned itself to follow inveterate¹³⁸ practice， and we find that in all the bodies of Customary Law， which were gradually built up， the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. As to lands held by servile tenures （and originally all tenures were servile which bound the tenant¹³³ to pay money or bestow¹³⁹ manual labour）， the system of succession prescribed by custom differed greatly in different countries and different provinces. The more general rule was that such lands were divided equally at death among all the children， but still in some instances the eldest son was preferred， in some the youngest. But Primogeniture usually governed the inheritance of that class of estates， in some respects the most important of all， which were held by tenures that， like the English Socage， were of later origin than the rest， and were neither altogether free nor altogether servile.

　　The diffusion of Primogeniture is usually accounted for by assigning what are called Feudal reasons for it. It is asserted that the feudal superior had a better security for the military service he required when the fief descended to a single person， instead of being distributed among a number on the decease of the last holder¹⁴⁰. Without denying that this consideration may partially¹⁴¹ explain the favour gradually acquired by Primogeniture， I must point out that Primogeniture became a custom of Europe much more through its popularity with the tenants than through any advantage it conferred on the lords. For its origin， moreover， the reason given does not account at all. Nothing in law springs entirely from a sense of convenience. There are always certain ideas existing antecedently on which the sense of convenience works， and of which it can do no more than form some new combination； and to find these ideas in the present case is exactly the problem.

　　A valuable hint is furnished to us from a quarter fruitful of such indications. Although in India the possessions of a parent are divisible at his death， and may be divisible during his life， among all his male children in equal shares， and though this principle of the equal distribution of property extends to every part of the Hindoo institutions， yet wherever public office or political power devolves at the decease of the last Incumbent¹⁴²， the succession is nearly universally according to the rules of Primogeniture. Sovereignties descend therefore to the eldest son， and where the affairs of the Village Community， the corporate¹⁴³ unit of Hindoo society， are confided¹⁴⁴ to a single manager， it is generally the eldest son who takes up the administration at his parent's death. All offices， indeed， in India， tend to become hereditary， and， when their nature permits it， to vest in the eldest member of the oldest stock. Comparing these Indian successions with some of the ruder social organisations which have survived in Europe almost to our own day， the conclusion suggests itself that， when Patriarchal power is not only domestic but political， it is not distributed among all the issue at the parent's death， but is the birthright of the eldest son. The chieftainship of a Highland¹⁴⁵ clan¹⁴⁶， for example， followed the order of Primogeniture. There seems， in truth， to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. The Agnatic Union of the kindred in ancient Roman law， and a multitude of similar indications， point to a period at which all the ramifying branches of the family tree held together in one organic whole； and it is no presumptuous¹⁴⁷ conjecture¹⁴⁸， that， when the corporation thus formed by the kindred was in itself an independent society it was governed by the eldest male of the oldest line. It is true that we have no actual knowledge of any such society. Even in the most elementary communities， family-organisations， as we know them， are at most imperia in imperio. But the position of some of them， of the Celtic clans¹⁴⁹ in particular， was sufficiently¹⁵⁰ near independence within historical times to force on us the conviction that they were once separate imperia， and that Primogeniture regulated the succession to the chieftainship. It is， however， necessary to be on our guard against modern associations with the term of law. We are speaking of a family-connection still closer and more stringent¹⁵¹ than any with which we are made acquainted by Hindoo society or ancient Roman law. If the Roman Paterfamilias was visibly steward¹⁵² of the family possessions， if the Hindoo father is only joint-sharer with his sons， still more emphatically must the true patriarchal chieftain be merely the administrator¹⁵³ of a common fund.

　　The examples of succession by Primogeniture which were found among the Benefices may， therefore， have been imitated from a system of family-government known to the invading races， though not in general use. Some ruder tribes may have still practised it， or， what is still more probable， society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred¹⁵⁴ to it， when they were called upon to settle the rules of inheritance for a new form of property， But there is still the question， Why did Primogeniture gradually supersede¹⁵⁵ every other principle of succession？ The answer， I think， is， that European society decidedly retrograded during the dissolution of the Carlovingian empire. It sank a point or two back even from the miserably¹⁵⁶ low degree which it had marked during the early barbarian monarchies¹⁵⁷. The great characteristic of the period was the feebleness， or rather the abeyance¹⁵⁸， of kingly and therefore of civil authority，。 and hence it seems as if， civil society no longer cohering¹⁵⁹， men universally flung themselves back on a social organisation older than the beginnings of civil communities. The lord with his vassals¹⁶⁰， during the ninth and tenth centuries， may be considered as a patriarchal household， recruited， not as in the primitive times by Adoption¹⁶¹， but by Infeudation； and to such a confederacy， succession by Primogeniture was a source of strength and durability¹⁶². So long as the land was kept together on which the entire organisation rested， it was powerful for defence and attack； to divide the land was to divide the little society， and voluntarily to invite aggression¹⁶³ in an era of universal violence. We may be perfectly¹⁶⁴ certain that into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. Everybody would have suffered by the division of the fief. Everybody was a gainer by its consolidation¹⁶⁵. The Family grew stronger by the concentration of power in the same hands； nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations， interests， or indulgences. It would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief， by the situation in which the eldest son is placed under an English strict settlement.

　　I have said that I regard the early feudal confederacies as descended from an archaic form of the Family， and as wearing a strong resemblance to it. But then in the ancient world， and in the societies which have not passed through the crucible¹⁶⁶ of feudalism， the Primogeniture which seems to have prevailed never transformed itself into the Primogeniture of the later feudal Europe. When the group of kinsmen¹⁶⁷ ceased to be governed through a series of generations by a hereditary chief， the domain which had been managed for all appears to have been equally divided among all. Why did this not occur in the feudal world？ If during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family， why was it that when feudal Europe had consolidated itself， and regular communities were again established， the whole family did not resume that capacity for equal inheritance which had belonged to Roman and German alike？ The key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy¹⁶⁸ of Feudalism. They perceive the materials of the feudal institutions， but they miss the cement. The ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic， but， as soon as Courts and lawyers were called in to interpret and define it， the principles of interpretation¹⁶⁹ which they applied¹⁷⁰ to it were those of the latest Roman jurisprudence， and were therefore excessively refined and matured. In a patriarchally governed society， the eldest son may succeed to the government of the Agnatic group， and to the absolute disposal of its property. But he is not therefore a true proprietor¹²¹. He has correlative duties not involved in the conception of proprietorship¹⁷¹， but quite undefined and quite incapable¹⁷² of definition. The later Roman jurisprudence， however， like our own law， looked upon uncontrolled power over property as equivalent to ownership， and did not， and， in fact， could not， take notice of liabilities of such a kind， that the very conception of them belonged to a period anterior¹⁷³ to regular law. The contact of the refined and the barbarous notion had inevitably¹⁷⁴ for its effect the conversion¹⁷⁵ of the eldest son into legal proprietor of the inheritance. The clerical and secular¹⁷⁶ lawyers so defined his position from the first； but it was only by insensible degrees that the younger brother， from participating on equal terms in all the dangers and enjoyments¹⁷⁷ of his kinsman¹⁷⁸， sank into the priest， the soldier of fortune， or the hanger-on of the mansion¹⁷⁹. The legal revolution was identical with that which occurred on a smaller scale， and in quite recent times， through the greater part of the Highlands of Scotland. When called in to determine the legal powers of the chieftain over the domains¹⁸⁰ which gave sustenance¹⁸¹ to the clan， Scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion¹⁸² imposed by the claims of the clansmen， and it was inevitable¹⁸³ therefore that it should convert the patrimony of many into the estate of one.

　　For the sake of simplicity¹⁸⁴ I have called the mode of succession Primogeniture whenever a single son or descendant succeeds to the authority over a household or society. It is remarkable， however， that in the few very ancient examples which remain to us of this sort of succession， it is not always the eldest son， in the sense familiar to us， who takes up the representation， The form of Primogeniture which has spread over Western Europe has also been perpetuated¹⁸⁵ among the Hindoos， and there is every reason to believe that it is the normal form. Under it， not only the eldest Son， but the eldest line is always preferred. If the eldest son fails， his eldest son has precedence not only over brothers but over uncles； and， if he too fails， the same rule is followed in the next generation. But when the succession is not merely to civil but to political power， a difficulty may present itself which will appear of greater magnitude according as the cohesion¹⁸⁶ of society is less perfect. The chieftain who last exercised authority may have outlived his eldest son， and the grandson who is primarily entitled to succeed may be too young and immature¹⁸⁷ to undertake the actual guidance of the community， and the administration of its affairs. In such an event， the expedient¹⁸⁸ which suggests itself to the more settled societies is to place the infant heir under guardianship¹⁸⁹ till he reaches the age of fitness for government. The guardianship is generally that of the male Agnates； but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women， doubtless out of respect to the overshadowing claims of the mother. In India， the widow of a Hindoo sovereign governs in the name of her infant son， and we cannot but remember that the custom regulating succession to the throne of France —— which， whatever be its origin， is doubtless of the highest antiquity¹⁹⁰ —— preferred the queen-mother to all other claimants for the Regency， at the same time that it rigorously excluded all females from the throne. There is， however， another mode of obviating¹⁹¹ the inconvenience attending the devolution of sovereignty on an infant heir， and it is one which would doubtless occur spontaneously to rudely organised communities. This is to set aside the infant heir altogether， and confer the chieftainship on the eldest surviving male of the first generation. The Celtic clan-associations， among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated， have brought down this rule of succession to historical times. With them， it seems to have existed in the form of a positive canon， that， failing the eldest son， his next brother succeeds in priority to all grandsons， whatever be their age at the moment when the sovereignty devolves. Some writers have explained the principle by assuming that the Celtic customs took the last chieftain as a sort of root or stock， and then gave the succession to the descendant who should be least remote from him； the uncle thus being preferred to the grandson as being nearer to the common root. No objection can be taken to this statement if it be merely intended as a description of the system of succession； but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. The true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child， and that the younger son is more likely to have come to maturity¹⁹² than any of the eldest son's descendants. At the same time， we have some evidence that the form of Primogeniture with which we are best acquainted is the primary form， in the tradition that the assent¹⁹³ of the clan was asked when an infant heir was passed over in favour of his uncle. There is a tolerably well authenticated¹⁹⁴ instance of this ceremony in the annals of the Macdonalds.

　　Under Mahometan law which has probably preserved an ancient Arabian custom， inheritances of property are divided equally among sons， the daughter taking a half share； but if any of the children die before the division of the inheritance， leaving issue behind， these grandchildren are entirely excluded by their uncles and aunts. Consistently with this principle， the succession， when political authority devolves， is according to the form of Primogeniture which appears to have obtained among the Celtic societies. In the two great Mahometan families of the West， the rule is believed to be， that the uncle succeeds to the throne in preference to the nephew， though the latter be the son of an elder brother； but though this rule has been followed quite recently in Egypt， I am informed that there is some doubt as to its governing the devolution of the Turkish sovereignty The policy of the Sultans has in fact hitherto prevented cases for its application from occurring， and it is possible that their wholesale¹⁹⁵ massacres¹⁹⁶ of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. It is evident， however， that in polygamous societies the form of Primogeniture will always tend to vary. Many cons³¹

　　iderations may constitute a claim on the succession， the rank of the mother， for example， or her degree in the affections of the father. Accordingly， some of the India Mahometa sovereigns， without pretending to any distinct testamentary power， claim the right of nominating the son who is to succeed. The blessing¹⁹⁷ mentioned in the Scriptural history of Isaac and his sons has sometimes been spoken of as a will， but it seems rather to have been a mode of naming an eldest son.

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