Ancient Law Chapter 7

n law of the provincials on the one hand and the archaic customs of the barbarians on the other， the more are we perplexed at first sight by our knowledge t

hat neither Roman nor barbarian 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 provincial land to be holden by the beneficiary on condition of military service. The allodial proprietors 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 accomplished with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of their land. The benefices， however were not at first in any sense hereditary. 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 descend to the eldest son. The rules of succession which they followed were entirely 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 undoubtedly 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 phenomena recur 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 conditional alienations of portions of their land to dependants； 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 concurrently 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 tenants 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 diffusion being Family Settlements， the Pactes de Famille of France and Haus-Gesetze of Germany， which universally stipulated that lands held by knightly service should descend to the eldest son. Ultimately the law resigned itself to follow inveterate p

ractice， 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 tenant to pay money or bestow 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 holder. Without denying that this consideration may partially 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 Incumbent， 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 corporate unit of Hindoo society， are confided 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 Highland clan， 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 presumptuous conjecture， 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 Celt

ic clans in particular， was sufficiently 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 stringent than any with which we are made acquainted by Hindoo society or ancient Roman law. If the Roman Paterfamilias was visibly steward 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 administrator 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 recurred 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 supersede 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 miserably low degree which it had marked during the early barbarian monarchies. The great characteristic of the period was the feebleness， or rather the abeyance， of kingly and therefore of civil authority，。 and hence it seems as if， civil society

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