Ancient Law Chapter 7

no longer cohering， men universally flung themselves back on a social organisation older than the beginnings of civil communities. The lord with his vassals， during the ninth and tenth centuries， may be considered as a patriarchal household， recruited， not as in the primitive times by Adoption， but by Infeudation； and to such a confederacy， succession by Primogeniture was a source of strength and durability. 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 aggression in an era of universal violence. We may be perfectly 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 consolidation. 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 crucible of feudalism， the Primogeniture which seems to have prevailed never transformed itself into the Primogeniture of the later feudal Europe. When the group of kinsmen 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 genealogy 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 interpretation which they applied 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 proprietor. He has correlative duties not involved in the conception of proprietorship， but quite undefined and quite incapable 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 anterior to regular law. The contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. The clerical and secular 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 enjoyments of his kinsman， sank into the priest， the soldier of fortune， or the hanger-on of the mansion. 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 domains which gave sustenance to the clan， Scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen， and it was inevitable therefore that it should convert the patrimony of many into the estate of one.

　　For the sake of simplicity 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 perpetuated 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 cohesion 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 immature to undertake the actual guidance of the community， and the administration of its affairs. In such an event， the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship 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 gover

ns 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 antiquity —— 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 obviating 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 maturity 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 assent of the clan was asked when an infant heir was passed over in favour of his uncle. There is a tolerably well authenticated 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 wholesale massacres 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 socie

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