OF T H E
LA WOF PRIMOG ENITURE IN ENG LA ND
A ND
ITS EFFECT UPON LA ND ED PROPERTY
.
( BE IN G
A N ESSAY WHI CH J O IN TL Y WI T H A N O T H E R O BT A IN ED
P R I " E OF T H E U NI V E R S I T Y O F C A M BR I D G E )
TH E Y
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BY
COU RT NE Y
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C
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O N O N REE V ES
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SO N
T U R N E R ; A N D S I MP KIN MA R S H A LL
A MBRI D
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—
J H
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ALL
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18 7 8
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L
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BY
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E OR G E RE VE I RS
FE TT E R L A N E
,
,
G R A Y S T OKE
PL
A CE
,
TO
RI CH
ARD
IN
FOR
HIS
D
R
AV I S
E COR D
JU
CR
OF
R ID I CAL
L
AIG
,
ESQ
,
Q C
A DM I RA T ION
A ND
EARNING
.
H IS TORI CAL
.
.
,
A N A LY S I S
L— A
NIIAIN
C NQ
T O S
T C P
O
I
P R MOG
0F
NI
E
O F C ON T E N T S
E
IN
TU RE
N AN
G L
.
E
B F ORE
D
THE
N O R MA N
UES T .
The Britons unlik e the Roman s e xclude fem ales
The Wels h
Y ounges t s on s privilege
E ldes t s on s privi lege
The Sax ons
Females ad mi tted bu t pos tponed
Y ounges t s n preferred in towns
E ldes t s on preferred b y nobles
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II RIS E
—
.
LA W
OF T H E
'
‘
OF P R IM OG E NI I U R E I N
N AN
G L
D
.
impos ition b y Wm I upon hi s M ili tary Ten an ts
His motive s for t he ch ange
I t s gradu al pr ad amongs t t he M ilitary Tenan ts of M es ne Lords
I t s gradual s pread amongs t Socagers
(i ) U nder military pres s ure
Laws of Henry I
(ii ) U nder juri di cal pressure
G lanville
The Turning point A D 1200
Braeton
Fleta and Bri tton
E x cep t
(a) in Ken t
C au s es of this e x ception
1 I ndependence of the ceorls
2 P rominence of the Church
3 G eogr aphi cal po sition
(b) in Town s
I t s s ucces ive e x ten s ions among t Kentis h Socager s
—
i
B
y
P
rerog
tive
a
1
0
1313
2
2
( )
— 16 24
ii
B
y
St
tute
a
14
9
6
( )
The ub equent relap s e
It s e x ten s ion to Wales
15 43
1 It s
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E
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2
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3
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s
e
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4
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s
s
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s
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s
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vi
6
.
It s
.
ucces ive e xten sion s in I reland
For lands of E nglis hry (Hen
M ade u niversal (James
Lan d s of Papis ts e x cepted (A nne)
A gain made univers al (G eo
gradual pread among t Copy holders
gradu al p read among t Cu s tomary Freeholder
C au s e of the exaggerated form it here as s umed
A n alogy of the I le of Man and of H olland
non e x ten sion t o Leas eholder
Contras t w i th Scotti h law
C aus e of the di fferen c e
s
s
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7 It s
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8
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It s
s
s
s
s
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s.
s
9
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It s
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,
-
.
s.
s
.
.
III
.
AR D S OF PR IMOG E N IT U RE
'
The heir s ex pect ancy protected by Res triction on A l ien ation imp o s ed
(i ) By law s for direct benefit of heir 10
(ii ) B y laws for direct benefit of lo d 12 17
By entails 1285
(iv ) By contingent rem ai nders 1431
— T HB
S U CC ESS IVE S AFE G
U
.
s
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,
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r
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.
I n the pa t
s
OF THE
.
.
.
I V — T B B E rrs c rs
.
LA W
or
(a) Mili tary
(6 ) P olitical and
(0) E conomical
P R IM OG
.
EN I T U BE .
.
Social
.
.
In
V
.
—
TB B
the pres ent (d ) D omes tic
P R OBA BL E
FU T U R E
.
OF T HE
LA W
I
P R MO G
OF
E
NI
T U RE .
rguments for i t s rete ntion
(i ) The reform would be inop rative
(ii ) Y t would cau s e e x cess ive s ubdivis ion
(iii ) P rimogeniture s timulate s y ounger s ons
(iv ) Stimul ates capi talis ts
( ) A nd i s es s enti al to a P eerage
( i ) Change of Law would change the Cu s tom
M odern Parliamentary efforts to aboli h it
Their bas is the Success ion L aw of P ers on alty
Sugges ted modification s
(1) P eers to be e x c ep ted
(2) A n option of P urchas e
(3 ) Cotti ers to be e x cepted
Sugges tion of Q ualified P rimogeniture as a preferable bas is of reform
Conclu ion
A
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e
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e
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v
v
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s
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s
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TH E
o
n
f
i
s
i
fi
R g
fi
sh: of
A N TI C I PA T I ON S
—
.
BEF O
PRI M O G
EN
n
i
m
i
m
i
m
n
a
n
@
l
n
h
fig g
g
ri
I TS EFFE CT UP ON L A ND ED
A ND
I
g
RE
OF
THE
PRI M O G
EN
NO R M A N
P R OP E R T Y.
I TU R E
E NG
IN
C ON Q U E S
T
LA N D
.
I TU RE had no place among the earliest i nh ab i
’
tants O f our island At C aesar s landing agricultural arts
and consequently all ideas of private property in land were
unknown to the mass of Britons As civilisation spread
among them and land came t o be cultivated and appro
n
a
t
e d a law of property was developed ; but its usages as
p
t o succession took the form common t o all Keltic races and
gave the inheritance t o the m ale kinsfolk recognising among
them no priorities or preferences although rigidly excluding
females from any possibility Of inheriting land In earlier
times the succession doubtless went to all the males of the
clan
But when the conception of property grew more
definite and the rights O f the family became distinct from
those of the clan, the sons of the deceased propri etor becam e
his only heirs Y e t the more primitive form of succession
survived for many centuries in that more primitive state of
society which prevailed across the Channel ; and English
j uri sts t o whom the early history O f their ow n law was
unknown bestowed upon it the di stinctive name of I T iS h
”
G av e lkind
The rapid progress of Roman in fl uence create d a line of
colonies and municipali ties along the East and South ; and
the edict of Caracalla by raising all his free British subj ects
to citi z enship carried the Roman law into native households
But however great were the changes thus e ffected none o f
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2
them would tend to the introduction of Primogeniture Th e
tendency was indeed in the O pposite direction ; for Roman
law by establishing the equality of the sexes in intestate
succession and repudiati ng the idea of hereditary O ffic e
destroyed the only customs O f Britain from which Primo
geniture might in time have sprung
Before di scussing the further changes which Saxon
invasions intro d uced i t will be convenient t o conti nue the
present branch of our subj ect into a somewhat later period
that we may see h ow the Keltic custom developed itself
when not affected by violent interference from without
The Britons who had taken refuge in the W elsh moun
tains retained their custom of partition amongst males and
*
originally applied it not O nly to lands but to chi eftainship
Less than two centuri es before the N orman c onquest the
W elsh crown passed from Roderick the G reat t o his three
sons A naraw d Cadela and M ervi n as c o
But wi th
the Cymry as with all other nations a brief political
experience s ufficed to show the necessity of rendering the
crown impartible
Hence when we get our first detailed
picture of W elsh life in the Laws of Howel E da i more than
a century and a quarter before the Conquest all trace O f
the old custom is gone from constitutional law and the
king s successor is always a single male kinsman But
this carri e s us little way towards Pri mogeniture ; for the
successor s right springs entirely from the king s nomi
nation and the king may nominate as e d li ng whatever
His choice does how
s on or even nephew he may choose
ever seem to h ave most frequently fallen upon hi s eldest
son
I n W ales in fact unlike other countries the tendency t o
Primogeniture such as it was is more marked in the law of
property than in the law of office W elsh land in Howel s
time may be di vided into two kin ds There is some which
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His tory of Wal es p 21 gives an in s tance A D 8 11
—
n
s
2
1
m
h
a
C
mbr
p
C atalogue of
i
u
7
T
i
a
a
E nd e b i e s
quoting Mills
p
Honour p 2 09
d
a
a
n
s
s
A
s of Wales
s
s
the
ecord
Commi
ioner
ncient
L
w
I
n
titu
t
e
R
S
e
e
:
3
‘
4
A
9
D
8
a
ll
i
c
a
e
W
Lege
Howel
died
s
s
n
t
t
o
d
W
a
n
41
18
;
a
:
p
owell
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s
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3
has not y et be c ome absolute pro p erty but i s held only by
payment O f ge ld to the king ; and this is still under the
control of the older custom passing at the occupier s death
t o all the men Of his D i ll
But there is also heredita ry land
— inalienable
indeed for more than the owner s life and
undevisable but partible at his death among his sons and
when they in turn were dead re p art ib le among th e grand
sons and agai n among the great grandsons
After that
says the code there is no appropriate share of land
So
—
f
f
o
re c ent was the second orm
partibility s o lately had
”
W elsh gavelkind arisen out of I rish gavelki nd — that
the law will allow family descent only for three generations
and cognatt more remote than se c ond cousins look upon each
other as merely ge nti les But even in th i s early stage the
W elsh law of succession has developed two rules which
demand our attention
O ne relates to the mode of mak i ng the partition among
the heirs and the preference to which the younges t son is
except in two cases entitled I t appears thus in the
V enedotian the older form of Howel s laws (Book II
cap 12)
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/
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—
’
—
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.
th ere b e b u il d i ngs t h e y o unge s t b ro th er b ut one i s t o d i v i d e th e
’
f or i n th at cas e h e i s t h e me t er ; and th e y o un ge s t t o h av e hi s
t y d d y ns
c h o i ce o f th e t yd d yns and after th at h e i s t o d i v i d e all t h e p at ri mo ny
A nd b y s en i or i ty th e y are t o ch o os e unt o t h e y o un ge s t
and th at
”
d i v i s i on i s t o c on t i n u e d uri ng t h e l i ve s Of t h e b ro th ers
If
,
,
.
,
.
But it is laid down that
th ere b e n o b u i l d i n gs on t h e l an d t h e y ounge s t s on i s t o d i v i d e
all t h e p at r i mon y and t h e e l d e s t i s t o c h oos e
and e ach i n s e ni or i ty
”
c h oo s e un to th e younge s t
If
,
,
,
,
.
And (II 16
right is thi
.
.
8)
the se cond exception to the
’
u
n
o
e
s
t
s
y
g
h aml e t i s no t t o b e s h ar e d as t y d d yns b ut as gard e ns ;
t h e y o un ge s t son i s not more
and i f th ere b e bui l d i n gs th ereon
”
en t i tl ed t o th e m th an t h e e l d e s t, b ut t h e y are t o b e s h are d as ch amb e rs
“
L and
of a
,
,
.
The
D i me t i an
Code
—
’
the form that Howel s laws assumed
tran l ate d te nemen ts by the Record Commi sioner
editor and ac d i fi c i a by the old L atin code I learn from a Wel h philol gi t
that at any ate at the pres ent d ay the word (li ke m ss uagc in t h e t icter
s e ns e) deno te s a hou s e t h at h as a curtil age attached t o i t
T yd d yns
is
s
“
s
,
s
.
,
r
,
e
s
o
s r
.
s
’
4
South W ales betray s
vision (II 2 3 1)
in
its
—
.
later d ate by
m i n ute r p ro
i ts
,
W h en b ro th e rs s h are th e i r pat r imon y b e t w een th e m th e y ounger
i s t o h ave t h e p r i n c i p al t en e men t and all th e bui l d i ngs of h i s fath er
h i s h at c h e t and his c o ult er
and e i ght erw s o f l an d ; h i s b oi l er
b e c aus e a fath er canno t gi ve t h e s e th ree t o any one b ut t h e y o unge s t
s on and th o ugh th e y s h o ul d b e pl e d ge d th e y never b e c o me f or f e i t e d
Th en le t every b ro th er tak e an h om es te ad w i th e ight em s of lan d and
t h e y o un ge s t s on i s t o d i v i d e and th e y are t o c h oo s e i n s ucc e ss i o n f ro m
”
t h e e l d e s t t o t h e y o un ge s t
,
,
,
,
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,
,
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,
,
.
The fact that the family house whenever it was more
than a village cot fell to the youngest son is of great
importance for it shows the origin Of the other rule which
—
we have still to consider a rule wh i ch c arries us di re c tly
to Primogeniture
Hitherto we h ave always found land partible the parti
”
”
“
ti on being either I rish among the clan or W elsh
among the family Both modes agree in limiting the par
—
tition to males ; and they agree also both being of Keltic
and pres Christian origin i n ignori ng marriage and admit
ting illegitimate as readily as legitimate kinsmen The
time came for the Church to protest agains t th i s and we
find in the V enedotian Code (II 16 2)
,
,
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—
-
,
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,
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Th e e ccl e ia t i cal law
,
th at n o s on i s t o h ave t h e p at r i
mon y b ut th e e l d e s t b orn t o t h e fath er b y th e marr i e d w i f e Th e law
o f H ow e l h o w ever, ad j ud ge s i t t o th e y o unger s on as w e ll as t o t h e
o l d e s t and d e c i d e s th at t h e s i n of t h e fath er or h i s i ll egal ac t , is not
”
t o b e b ro ught agai n s t th e s on as t o hi s p at r i mon y
s
s
y
sa s
in
aga
.
,
,
,
.
The W elsh j urists saw their old law assailed in both its
essentials — its a d mission of younger sons and its admission
*
The Church assailed the latter ; but the Con
of bastards
lawyers in the h eat of defence were perhaps
s e rv at i v e
mistaken in also attributing to her in fl uence the simul
There a yet subtler
t ane ous attack upon the forme rs l
*
,
.
,
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‘
The oldes t M S of t his code omi ts the word E ccles ias tical al toge ther
from the passage bu t i t i s too often in accurate for i t s omis s ions to have any
authori ty ag ain t the con s en t of fo ur other M SS
1 I t i s certain ho w ever th at in the I sle of Man sh e did m ake an effort in
th at di rection A s tat u t e of 16 43 indicating the equ al righ t of all children t o
.
s
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‘
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,
,
adversary than she was at work The same so c ial ne c e s
sities which made P mmoge nit ure popular among feudal
vassals in the England of t h e twelf th century were now at
work to introduce it in W ales though not aided there by
the military advantages which in England recommended it
als o to those vassals lords The family finds its property
in danger and the safety of the property must be effected
by its concentration The danger arose in the later English
days from political changes ; but i n W ales m ere legal
changes su ffi ce to account for it The family had but
recently won from the clan the right to the more valuable
inheritances too recently for the change not to be resisted
whenever circumstances might seem to favour the clansmen
in an aggression upon the usurpers The children would
be ousted the home broken up the hearth extinguished
Then the ej e cted family must have recourse to law ; they
mus t sue for restitution of their patrimony for D ad e nhu d d
the R e zmc ov e ri ng of the fire on the father s hearth At
this j uncture the law recognises the temporary impo rtan c e
of conj oint action and for the purposes of the suit it com
bines the brothers under the headship of the eldest As
against their ej ectors they become a corporation Thus the
D i me t i an Code (II 2 1 4) provides
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l aw ful p re s en t h e i rs one i s p ro p r i e tar y h e i r t o d ad enhud d
o f th e w h o l e and ano th er i s non p ro p ri e t o r T h e one h o w e ver is
p ro p r i e t or t o d ad e nhud d o f t h e w h o l e as d ad e nlzud d o f t h e w h o l e i s no t
'
app ro p r iat e t o any one e x c e pt t h e e l d e s t o f all t h e b ro th ers
T he
p r i v il e ge o f age o f t h e e l d e s t b ro th er re nd ers hi m s o l e p ro p r i e t or for
d ad e nimd d o f all
A ll t h e y o un ger b ro th ers are non
p ro p r i e t ors as t o o b tai n i n g d ad e nhudd of t h e w h ol e , alth o ugh every one
”
s h all o b t ai n h i s sh are
Of t w o
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Another passage perhaps of still later date from another
portion of the same code (II 8 107 ) supplements the rule
by providing that if the eldest son die before a patrimony
is shared his e ld es t son shall take his place
W e might at first sight suppose this rule t o be merely
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the pers on alty compl ain s that con trary to this the Church s ometimes u s ed to
decree the whole te am of o xen and the crop of corn t o the elde t s on w hich
commonl y is more worth than all the rest of the goods — Jeffcott s “ S tatu t e
Laws of the I sle of Man
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B
2
6
the rete ntion O f an old yet unabandoned system of family
government But it is in the D i me t i an code that the rule
occurs M oreover we have already seen that the old W elsh
law regarded not the eldest but the youngest son as the
especial representative of the household and the perpetuator
O f the family hearth Both facts show that we have here
a new reform ; the be ginning O f what under more favour
”
able circumstances might have become a legal revolution
But the current of circumstan c e that had carried W ales
th us far was not strong enough to carry her further and
conf er upon the Pen c e ne d l not merely the defence but the
dominion of his brothers patrimony
I t was onl y by
forei gn violence that Primogeniture centuri es afterwards
was forced upon her
I t is perhaps t o clerical rather than to Saxon in fl uence
that we must attribu t e the temporary effort made in the
D i me t i an code (II 2 3 6 ) t o admit women to a place in
successions
Their brothers were to allow the sisters a
w
l
a
d
o
or
marriage
portion
to
consist
apparently
of
cattle
d
g
and furniture and not exceed in value half a brother s
share ;f and in default of brothers they were t o inherit the
patrimony Subsequent law allows a mother to be heir to
her daughter ; But these reforms had no support i n W elsh
traditio ns or W elsh sympathies ; the ancient laws and some
lawyers even at the time O f the V enedotian code had re
u
d
i
Hence
we
cannot
a
e d female succession (II 15
t
p
wonder that when next the veil is raised from W elsh juris
prudence at the time O f the S tatutum V alli ae all traces of
female rights have again vanished "
The admission of females and the use O f Testaments are
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V
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This principle of d ad wzhud d re appears in the partitive de cents of J er e y
in the rule which m akes the eldes t s n P rincipal Heir en titling him t o hold
for h is own benefit till the other children claim p art age
'“
1 A ncient Law s p 2 5 6 with p 47
I P 6 17
The Record Commiss ioner editor lay ju t s tress on the importance of
tudy ing the \Ve l h code i n their s eparate form s as printed for the firs t time
in 18 41 O ur pres ent s ubject illu s trate hi remark Not onl y the E nglis h
w ri ter (as Serjeant Runnington) b ut even G an in hi great work obtained
from h aving
an imperfect view of the his tory of inheri tance law in Wale
'
logical codification
access t o t h at law only in Wot t on s unchron o
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the only differences in the law Of succession which we fi nd
Both
on passing from W ales to England now Saxonised
doubtless were due to ecclesiastical i nfl u e nce
I n the
absence of testament equality of partition was still the
rule for it is impossible to cre di t the tradition of the
M i rror (I 1 3 ) that a military Primogeniture was esta
*
b li s h e d by Alfred along with other feudal rules
Thus
we shall find the Laws of Canute (7 1s t Law
directing t h e
di vision O f the intestate s l aen land after deduction O f the
lord s heriot— among the wi dow children and next O f kin
n
t
as
the
case
might
be
every
according
to
the
degree
o
o
e
(
)”
that belongs to him
Again the 7 5t h Law provides that
where a man di es fighting by his lord no heriot shall be
taken but the whole land and prope rty shall go t o the heirs
hi
i
and they shall shift it according to right
t
S
n
( f g
—
the old G erman L and s kifi an modern L and s c he utan long
remained the Kentish phrase for a gavelkind descen t ):
W e must not suppose that the female children were
admitte d (as is said to have been the case among the D anes )
upon an equality wi th the males but only on failure of
them the Saxons ever preferring the spear—side to the
But that the Keltic rule O f absolutely ex
S pindle sid e
cludi ng th e m was not followed is evident as well from t h e
law admitting the widow as a success or to her husband as
from the actual precedent of A e t h e lfl e d a s suit for her
patrimonial land "
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p
O d i ne fuit que Fee de Chi v ale r deviendrai t a1
eigne fi l per s ucce ion de heritage E t que s occage fee fuis t p artable p e re nt e r
i t aliener de
n heritage f rs que le
E t que nul n p ui
l m ales e nfans
E t que nul n p uis s oi t aliener s on
qu art p art san s le as s ent de on h e i
purcha e de s e s beire i ass ignes n fui s ent sp e c e si e s en l s dones
“
publi hed b y the Record
1 A ncient Law and I n titutes of E ngl and
“
A nglo S ax on Law s
Commiss ioners p 17 7 ; Wilkin
p 144
A nd gif
h w a c w y d e l a e of t hy um life ge w i t e s y hit thurb h i s gyme le as t e s y hit
h laford na m are on hi a h t a butan
t h u h fae li c n death thonne ne t e v
o a h t g c y ft
w ithe rih t e wife and
hi s ri h t e h e g at a A c beo be h i d ih t e
16 42,
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16 z—
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r e
ss
s
es
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ss o
so
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s
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re
m and
oild u
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r
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s
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se
s
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ne h magum, aelc um b e t hac re
e
es
e
,
s
mae tl w t he h i m t oyeb ymge
’
”
.
Lambard G lo ss ary v Terra e x Scripto
H is t Rames 2 4 His t E lie ns II 8 printed by G ale ; and
G es chich te d e s A nge lsac hs ic h e n Rechts p 145
”
It
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U nder
”
this law i t was that those holdings i n paragio
or coparceneries arose which had not been forgotten when
D omesday Book was written Herold and G od e v e rt and
A luri c divi de their father s demesne ae quali t e r e t p ari li t e r ;
and when in King Edward s reign G od e v e rt dies his sons
*
i nheri t j ointly
Again we find an estate that belonged t O
five brothe rs w h o held together and were e qual j Again i
in S urrey two brothers had held j ointly under Edward ; each
had a house of h is ow n e t ts men mans e runt i n e adem
”
c uri a
I n Towns i ndeed an e x c ep ti onal law of i nher i tan c e h ad
sprung up The craftsman unlike the farmer could not
find work for his sons at home As soon as the lads were
O ld enough to handle tools or t o make bargains they must
be O ff t o wherever an apprentice or a w ork man was needed
(G uernsey law gives sons no p re c ip ut if the land lie in town )
I t was not until 13 2 6 that the j udges s ucceeded in crushing
the obstinacy of the Towns and keeping the young burghers
under di sability t i ll they reached the age of fourteen The
sons who were thus early fori s familiated were no longer
assoc i ated with the work and fortunes of the homes t ead
and no longer looked t o it as their inheri t ance I ndeed the
allotment on which the little cottage had been built was
I t passed un
us ually t oo scanty t o be worth partition
divi ded to the youngest son the s uns b ce res whom no
emancipation had severed from the paternal succession "
A s i milar di sti nction is gro w i ng up i n Russia Sin c e the
E mancipati on Act O f 18 6 1 the enfran chised serfs whils t
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D ome day Book I 3 75
3
6
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1
4
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h
9
1b
4
D
ome
y
Book
See
a
l
o
I
The
7
1
6
8
b
1
a
d
i
reference I owe to E lli
I ntr duction to D ome day Book p 2 4l n O n
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the s omewhat different meaning of Paragi um i n the noble fees of Norm and y
—
14
5
147
a
pp
E ngland under the Norm n
s ee Morgan s
:2
: D ome s d 1 3 5b ci ted by Freem an
M r M aine points ou t the working of the same principle i n the G e ilfi ne
“
G roup of Brehon law
E arl y I n t p 2 21 ; and M Rober t s on in the
Scotl and II 2 53 26 6 A ccording to M r
T h e e lb oors of earl y Fries l and
at
f
a
s
w
a
s
a
p
t
he
principle
of
pre
erving
the
home
life
c
rried
s
Morgan (
Taunt on that there even now (under a cu s tom c alled Boro ugh
the w i dow i s the husb and s hei r
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9
r e taini ng their Old custom O f undivided family ow ne i s h i p
have very generally adopted the plan O f making a partition
among all t h e adult male labourers in the fami ly i rre
whenever the housefather
s p e c t i v e of degrees of kinship
dies The shares being equal there is only one subj ect for
contention Who shall get the house
Wh o shall ge t the
rooftree ? I t usually falls t o the eldest son But in the
western and southern provinces where greater wealth has
—
produced a more developed civilisation discarding for
instance the old Russian custom of employi ng women in
field labour i t has become common for sons to quit the
home during the father s life and establish them selves in
households of their ow n I n distric t s where such a custom
prevails it has been followed as in S axon towns by a rule
establishing the youngest son as the proper successor t o the
Agai n in Silesia where th e equal
family
partition which the law enj oins i s usually evaded by
private settlements it is upon the youngest son that the
settlement is usually made the elder sons having left home
before the parent becomes so O ld as t o desire to surrender
his
Saxon law then showed nowhere any tendency towards
Primogeniture though it had advanced beyond British
custom by establishing our present rule as to the daughters
righ t s and probably by admitting in favoured b arks that
u lt i mo geniture which our law still retains as an e x c e p
t i onal urban p ri vilege
But in the private dispositions O f
the great nobles the in fl uence of the Continental aristo cracy
became apparent before the Conquest a degree of prefer
ence for elder over younger sons being manifest in their
W ills i
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II — R 1ss
OF T H E
.
A
FT E R
LA W
THE
OF
PRI MO G
EN
ITU R E I N
N O RMA N CON Q U E S T
ENG
LA N D
.
land ing of W illiam was the beginning of the end
A new feature of national life was introduced which
silently and suddenly in the great estates silently and
Foreign O ffi ce Report f 18 70 II 6 8
fIb i d II 133
1 P ear on I 2 6 9
THE
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10
slowly i n the lesser ones would transform the c ustoms of
inhe ri tance William s charter t o L ond on s e e ms to show
that already some fear was ente rtained for the sole specific
promise it makes is upon this subj ect ; that every child
shall be his father s heir after his father s
The
history O f feudalism in N ormandy before the invasion and
even for a c entury later is lost in utter Ob s c uri t y j and it
remains mere matter for conj ecture t o what extent Primo
geniture had become established in W illiam s D uchy before
he crossed the channel But it may well have gone far
enough for a military statesman like W illiam t o have
de t e c t ed i t s i mportance and determ i ned upon its extension
The Salic law had excluded females from succession to
Terra Sal i ca or military land but with no hint of any pre
ference of age amongst males The F rench crown had
passed t o all the king s sons i ncluding the illegi timate
ones under the first two dynasties But according to
M ontesqui eu Primogeniture had firmly established itself
by the beg inning O f the eleventh century as the French
rule of succession t o noble titles and lands whilst the
I mpe ri al law still regarded them as p art ible ; and hence
rather it would seem from feudal analogy than from the
—
l
obvious reasons of pub ic policy i the crown des c ended by
Primogeniture from the commencement of the third race O f
kings A n Assi z e O f Jeru s alem framed under F rench
in fl uence at the end of the same century
makes all
—
noble fi e fs in di visible the king selecting the child who
—
should succeed even amongst daughters
though parti
b ili t y i n b ourge oi s descents alway s prevailed there till the fall
of the k i n d om ll But we c an form no trustworthy inference
g
as to the extent t o which F rank law was adopted within
the N orman duchy D own t o the time when the N ormans
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Stubb
Select Charters p 8 2 See P ears on I 2 70 London w as
equ all y s edulous to ob tain a confirm ation of her cu s tom of inheritance from
H en I See Stubbs p 108 and Freeman v 46 8
'
l Stubb s Con s t His t I 2 48
“
“
H is toire de France ed 17 7 5
I E sp ri t d e s Lois xxxi 3 2 ; H en aul t
Hau t e Cour clvi clvii
I 117— 120
il Le Plé d é ant ch 3 4 3 5 (13 25— 13 50
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W illiam c oncerned himself about fe udalism only so far as it
—
f
f
B
a ected the arones me t the tenants i n chie f W hat rules
he lai d upon them we can never fully know ; but about
two there can be no doubt Their estate s were not t o be
*
aliened wi thout his license
The i r estates were t o des c end
to the i r eldest sons alone
W e shall not fi nd in d eed nor sho uld we expect to fi nd
any change taking place in the lands of the smaller owners
— the lands that escaped even military tenure when it soon
afterwar ds crept in elsewhere
N ot only were most of
t h ese pacific lands still the property O f Saxons certain to
stickle t o the last for good Ki ng Edward s custom but there
—
was no motive O f pol i cy there cannot even have been
—
N orman prece d ent to lead W illiam to change that c ustom
i nto Pri mogeniture ; and he never c hanged a custom cause
lessly W e might rather conj ecture that the partibility of
these lands would re c ommend itself to him as a means by
which Sa x on estates would soon sa fely fritte r themselves
But so subtle a
d own — an euthanasia of Saxon power
policy hard ly belongs to the eleventh century
The comp ilation of laws to wh i ch W ill i am s name h as
been given represents the Saxon rule O f i nheritance as
still i n vogue (Law
Si quis paterfamilias casu
ali quo sine testamento Ob i e ri t p ue ri inter se h se re d i t at e m
a
t
e rnam e quali t e r d i v i d ant j
p
But a sharp contrast to this becomes app arent when we
turn t o the estates of the king s great tenants i n ch i ef By
the help O f D ugdale and O f our numerous co unty histori es
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Freeman v 7 8 3 7 9 4
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1 A ncient Law s and I n s ti t u te s p 2 07 O ur b e s t au thority the H olkh am
MS un h appil y ends too s oon for us to say with certaint y whether thi s law
give s the inheri tance to the s on or as H ale cl aims t o all the children The
reading given above is that of the nex t be t authority the H arleian M S and
The s uppo ed
i s corroborate d b y all the pre s umption s of legal his tory
I ngulph on the other h and h as le s e nfans but his vers ion of the l aw s
i s in French and i s too corrupt to carry much weight in a di s puted reading
U nfort u natel y Wilkin s followed the L i hfi e ld Chronicle which s imil arl y read s
“
liberi and hi torian s following hi m have as s umed as cer tain a version
w hi ch if genu i ne w o ul d con sti t ut e a gr ave hi s t ori c al problem
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the descent of many of these may be traced from the very time
of the Conquest ; and the priority given to age amongst
sons becomes apparent from the outset T e staments it must
be remembered had ceased to operate upon lands Hence
this preference of the eldest son i s due to law and not as in
Saxon times to the father s devi se
The only fact that
be ars even a semblance of the O lder system is the occa
s i onal separation of the N orman from the English inherit
ance ; but this is explicable by the evi dent policy of the
King D uke
Thus when the Earl of Arundel di ed i n 109 4 his eldest
son Robert took his N orman earldom and his second son
Hugh took the English one ; but that this did not arise
from any rule of equality of partition is evident from the
fac t that the three yo unger sons went without any inherit
“
ance at all
So sudden and so imp ortant a change calls imperatively
for explanation Primogeniture can scarcely have obtained
already such a hold in N ormandy as to be the custom which
a N orman colony would inev i tably adopt N or does the
aris t ocratic tendency which we have seen at work in the
Saxon mind go far to explain the revolution
W e may
solve the problem if we recollect how quick W illiam was to
discern the politi cal tendency of institutions and how ready
to change and shift them t o the form most favourable to his
He detected the disintegrating tendency
ow n supremacy
O f feudalism ; and by the oath at Salisbury he saved the
Englis h king from the weakness O f continental lords para
mount
He s aw the peril O f governing through the
hereditary counts of F rance or the vi ce regal ealdormen of
England ; and he remodelled the administration to bring the
sheriffs i nto dire ct dependence on the Crown
He di s
cerned the danger of continuing to identify the S t at e l
l
and the Church ; and he c reated the ecclesiastical c ourts
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B aronage p 27 A kn ightly inheritance i s said in Fosb rok e s
Glouce ter hire II 47 1 to have been divided a century after the Conque t
between Margaret de Bohun and her five brother But this i an error ;
M argaret onl y s ucce eded on the death of the las t bro ther See Rudder s
Gloucest ershire p 6 12
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established the Royal supremacy and defined the limits
of Papal interference
Such a statesman wo ul d not be
slow to di scern the advantages he would derive from
Primogeniture
The fewer the leaders by whom his
army was contributed and controlled the readier
and more united would be its action
The smaller the
dominant c aste O f nobility the more accessible it would
be t o regal in fl uence The wealthier the N orman families
the less wo ul d be the importance of the Saxon houses
William was not a man t o perceive these advantages wi thout
at once striking a blow t o secure them The danger which
might ensue t o monarchy from the concentration of aristo
cratic power in fewer han d s he guarded against by ge ogra
h
i
c al divisions
The
estates
given
to
great
vassal
were
o
n
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scattered over twenty counties ; those O f another over
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Lord Chief Baron G ilbert remin d s us that a further
i ncentive to mili t ary Primogeniture was fo un d in the
medi ae val physiology which taught that to the eldest s on
the best blood and spi ri ts of the father were transmitted
appare ntly on the principle by which D ryden a c counts for
M onmouth s superiority t o Ch arles s other sons
M odern
stati stics point in a di fferent di rection
The perils of
primipari ty are so great that amongst fi rstborn children the
proportion of idiots is half as large again as amongst their
younger brothers and sisters
There are physical as well
as moral dangers to warrant the Scornful Lady s con
gratulati on
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j
I
oy
In
to
h ear
an e ld e r
ie
re w s
o
u
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b rot he r.
'
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P r ay b e w
a rare
i er
j
ew e l
s
few of W i lli am s charte rs of gift t o secular vassals
have been preserved for us t o j udge whether the continental
precedents were ever followed and the new line O f inherit
ance specified in the grant The few that we possess show
no change in matter or form from those of the Saxon kings
’
T oo
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Tenures no te xiv Walki n s edition Con tras t D uncan
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2 89 — 2 9 1.
1 Beaumon t
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and
Fle t ch er,
Sc ornfu l Lady
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A ct
i v Sc
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1
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On Fec undity,
”
15
charte rs were not yet in use in N o rmandy there was
little like lihood of the feudal forms being introduced I t
is enough for us to know that all the changes Of owne rship
were followed by a change O f descent and that both altera
tions were effe c ted without any legislative act Equally
silently were the other pec uliarities O f English military
ten ure created by Flambard in the following reign
How soon the tenants i n chief began to p ursue a similar
policy with their ow n knights we can only conj ecture
Th ey may have adopted the plan with readiness the more
so as it set a new distinction between their lands and those
But more probably its military
o f the conquered race
advantages would be less apparent to them than to their
far seeing leader ; and some years or even reigns may have
elapsed be fore Primogeniture became — as within a century
of the Conquest it di d bec ome
the universal accompaniment
of even the humblest military tenancy The establishment
under Rufus of the claim to wardship and marriage would
indeed di spose lords rather to favour the custom of parti
b ili t y which m ultiplied the chances of an infant s succession
In this as in all other points the new system of land
tenure came in only by degrees There was no one moment
at which a feudal system was imposed upon the country
The seed which W illiam sowed and Ranulf F lambard
watered did not reach maturity until the time of Henry of
Anjou F rom his institutions and from Glanville s code
not from W illiam s conquest must the new era of Engli sh
law be dated
The age of petty wars and feudal exactions which fol
lowed upon W illiam s death produced in the lands O f
humbler men a change in the direction O f Primogeniture
England seemed a camp and every man was his own constable
Having little hope of protection from the central power of
the realm men secured themselves by consolidating the
local power to which they could look for shelter The
younger brothers of the yeoman as well as the younger
broth e rs of the knight preferred the shelter of a patri
The experi ence of
arc h at e to the perils of independence
A
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16
W ales is re p eated in England though it is against hars her
v i ole nce and by sterner weapons that the subj ects of Rufus
and of Stephen claim their d ad e nhu d d
Thus within a short time Of the Conqueror s death
Primogeniture began to extend itself into the lands of
socmen
Sir M atthew Hale discovers one step of the
“
transition a stage when the whole land did not descend
”
to the eldest son but begun to look a little that way in a
c lause in the text book which calls itself the Laws O f
”
Henry I
This clause seems to have been much mi s und e r
s t ood A law copied from the Ripuarian code provides for
the succession of parents and collaterals if lineal heirs were
wanting with priority for males over females but ap
“
no
priority
for
age
Then
follows
this
law
re nt l
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m
ogemt us f ili us hab e at ; e mp t i one s v ero v e l
f
S i h o olan d h ab e at
d e i nc e p s ac qui s i t i one s s uas d e t c ui magi s v e li t
”
e i p aren t e s d e d e ri nt , non mi t t at e um e x t r a c ognat rone m s uam
u
a
m
q
P rzmo p
’
mp
eud u
at ri s
’
ri
.
.
Taking the whole passage together the meaning of the
italicised clause is clear I t relate s not to descent like the
preceding law but to the restraints on alienation I nheri ted
land cannot be sold or d e v i s e d b e y ond the family Land newly
acquired may but with one exception ; if it had been
received on the terms of feudal service a strange tenant
cannot be forced upon the lord This is simply e qui v a
lent t o lxxxviii 14 z
N emo fori s fac i at feudum suum
le gi t i mi s h e re d i b us suis nisi propter fe loni am vel red
”
d i t i one m s p ont ane arn
Sir M atthew Hal e however whom
Reeves and Blackstone seem to have copied without further
inquiry punctuates the passage so as to make this clause
the conclusion of the preceding paragraph ; and instead O f
”
primo which would there be incongruous makes sense by
reading
He also omits to notice that (as M r
Fi nlas on points out) the whole chapter in which these para
graphs occur does not pu rport to re c ord the c ommon law
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ncien t Laws and I ns ti tut es p 2 49 Wilkin s p 26 6
P ri me i s the re ading both of Wilkin s and of the A nc i ent L aws and of
their M SS Ye t H ale s mis quo tation h as ob tained universal currency
“
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but only the p rovin c i al Cons uet udo We s t s e x e
The only
conne c tion of the clause with the history of descent wo uld
seem then to be that it shows that near the beginning of
Hen I I s re ignj a writer attached to the older elemen t s of
the law nevertheless re c ognised that Primogeniture (true
and exclusive ) prevailed wherever a strict feudal relation
had been established This is no more than we learn from
G lanville immediately afterwards Hale and Reeves must
have felt the di fficulty O f seeing how Primogeniture could
have been developed piecemeal by the stepping stone of a
“
Primum
P rce c ip uum; for Reeves ; refers the supposed
”
feodum clause to knight service lands whilst Hale seems
to treat it as a part of the law of socage The history of
law gives as little ground as does a p ri or i reasoning for
supposing that a limited privilege O f this kind would
develope in time into exclusive Primogeniture I n every
mature system of Partitive D escent we find some such
provision for securing the continuity of the father s house
hold assuring fi x i t y of tenure to that son eldest or
youngest whom the circumstances of the country identify
most closely with the family life I n Russia custo ms di ffer
as we have seen in the selection of the son who shall take
the roof tree but under both the customs the widow
“
still remains in its shelter
The supposed primum
”
feodum would only be the counterpart O f the youngest
brother s t yd d yn in Wales his c ov e rt ele l as tre in Kent the
”
capitale me ss uagi um of Glanville s eldest Socman the
”
and the praecipuum
of the N orman rotu ri er
c h e fmoi s
which Scottish law in our ow n da y concedes to the firs t of
the heirs portioners
W e have no authenti c materials for the history O f Engli sh
law between D omesday Book and the great treatise of
Glanville The latter is our first picture of feudal law ; a
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in fl uence of \Ve ss e x w as less under Hen I than under the t w o
Williams — Freeman v 16 0— 16 2
''
1 The w hole que s tion as to the d at e of t he L aws of Henry I is di s cu ss ed
“
by M r Freeman ( Norman Conque t V
He con ider them no t earlier
than 1151 Mr E W Roberts on refe rs them to John s reign
Th e
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picture of a wider fiel d than its own words claim for the
great Jus t i c i ar s rules reapp e ar in the R egi am M uj e s t at e m
beyond the Tweed and in the G ran d Coutu mi e r across the
Channel G lanville (118 7 118 9 ) writes after the lapse of
just a century from D omesday
Primogeniture is fully
established in knightly lands and is making its way
amongst socagers That its institution was due to military
considerations is made clear by the fact that in military lands
alone is it systematically established ; and that in them it
only holds good when the heir is of the military sex or (if
we may suppose Brac t on s rule t o have been already adopted)
the inheritance is of value for strategic purposes F rom
various motives of personal safety family pride or aristo
cratic example it was spreading among s t socage tenants but
to what exte nt it had yet gone G lanville s language scarcely
enables us to conj ecture
When the owner of a descendible
estate dies he writes if he had an only son to be his heir
it is universally true that this son succeeds to all the father s
property I f h e left more sons than one there arises the
question whether he was a knight or military tenant or a
free socman For if he were a knight or a tenant by knight
service then by the law of the realm of E ngland the firstborn
son succeeds to the whole Of his father s property so that
none of his brothers can by law claim any part of it But if
he were a free socman the inheritance in that case will
be divided amongst all the sons according to their number
in equal shares if t hi s s oc age t ene me nt w e re p arti ble b y
anc i e nt c us t om; the chief messuage being however reserved
for the firstborn son in honour Of his seniority but on the
terms of his making compensation to the rest of his
brothers from the rest of the property
But if it were
not anciently partible then by the cus t om of some places the
firstborn son will take the whole inheritance but by the
custom of others the youngest son is
F rom the
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Cum quis h se e d i t at e m haben s mo i at u s i unicum fi li um h ae e d e m h ab ue i t
indi tinct e verum t quod fi li us ille p atri s uo s uc c d i t in toto Si p lu e s
li qu it fi li
tunc d i t i ngui t ur u trum ille fuerit mile s e u per feodum
militare tenen s an liber s c k mannus Q uia s i mile fuerit vel per mili t iam
t enen s tunc s ecundum jus regni A ngliae p i moge ni t us fi li us patri s uc c e d i t in
r
s
re
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r,
r
e
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20
the c hange had y et got s o far as t o destroy
the natural presumption in favour of the ancient c us t omfi
The warlike times O f Richard I have left us little legal
literature and no dire c t eviden c e of the changes that were
going on in th e custom of descents But the crusade c alled
the great nobles abroad and left humbler men a quiet time
O f progress The j udicial institutions of Henry II were
maintained and developed and their in fl uence as we shall
shortly find was hostile to the ancient custom Hen c e by
the outset of the following reign Primogeniture had become
the prevalent c ustom of descent in socage lands U nder
John there is no longer even an equality O f presumption
between the three customs ; the brother who opposes the
right of Primogeniture now finds the burden of proof e ast
upon his shoulders
Be fore John had been two yea rs on the throne this change
in the law was fully established I n M ichaelmas Term of
the second year of his reign (12 00) a writ of ri gh t j was
brought to decide the succession to some socage lands at
G unthorpe in Rutlandshire
The plainti ff as we should
expect was a you nger brother ;for the elder brother having a
title under either custom would seldom fail to take posses
sion G i le b e rt de Be i v i ll then sues W illiam de Be i v i ll for
two virgat es out of their father s i nheri tan c e The defendant
i mp robable th at
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The Sco t tis h Regi am M aj est atem II 2 7 copi e s the fir t pass age cite d
Skene (A D 159 7) thu s tran late s it
G if on y man
above from G l anville
d e c as i and le avi s behind hi m maa s on nor ane either he i s s u c omannu
divided
e t age i
and h aldis not h i l and be ervice b f w ard and then hi s h
or he i s m ile i n the quh ilk ea e the eldes t s onne s uc
amang t all hi s s onns
t ab ly p
t e i n d to h i s father
But he
c e d i in the b ail l and s quh ilk h
Thi s di s tinction i s not ob erved be the p ac t i c que of this realm Be
add s
the quh i lk the elde t s on s uc c e e d is to hi father ex assc that is to all and
b aill hi father h e t age and l andes I f Scot ch feudali m ever did recogni e
the e cu stom s of p artibility and it i s a matter of controver y whether Regi am
Maj es t at em a a whole repres ents the actu al Scotti h law Of i t s t ime— the fin al
v ictor y of P rimogeni t ure w as more r apid and more comple te t han s ou th of
the Tweed Scotland h as no Ken t
P rin t ed in the A b b e v i at i o Plac i t orum p 28 col 2
1 R ot 7 i n d ors
H ale (Hi t C L p 18 7) cites this cas e but mi takes the p arty for whom
“
j udgment w as given ; perhaps from G s being the abbreviation of each
b rother s n ame
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21
“
pleads That that so c age was never p arted nor p artible
and in the absen c e of eviden c e to O ppose this plea j udgment
i
l
u
r
e
b
s
is given for the d efendant
uia
G
e
t
nullam
Q
l
G
u
i
rob am
c
onsideratum
est
quod
e lmus
eat
e rd ux i t
p
p
”
sine die e t quietus I n later pra ctice such a plainti ff would
have been requi red to aver as well as to prove the
partibility
The establishment of this new presum p tion thro ugh out
the rest O f England would bri ng into v i vi d contrast the
permanence of the O lder custom in Kent I t is at this period
when for the first time the partibility of Kentish lands has
su nk into a local peculiarity that their pe culiar name makes
its way into our j urisprudence The records of proceedings
before the jus tices in Eyre in Kent in the fo urth and in the
“
ninth years of John s reign contain pleas by the defendant
”
in assi z e which describe his land as gav e ly k i nd e
I t need hardly be said that this change of presumption
would have a powerful e ffect in destroying the partibility of
lands
When two three or four successive owners of the
same tenement had only left daughters or single sons as
their heirs it would be di fficult to produce evidence of
some earlier pa rted male descent to rebut the new p re s ump
tion Three des c ents is the point t o which we shall find
title traced i n such cases in Edward I s Y ear Book Y e t in
those days when the proportion of c hildren who reached
to adult life was from bad hygiene much smaller than
at present we may fairly calculate that one estate in
every eight would pass throug h at least three descents
without any owner being su rvi ved by a plurality of sons
I n other words the two generati ons that had elapsed before
Braeton wrote had given ti me for the rule in Be i v i ll s case
t o have disgavelled at least one fourth of the p artible land in
the country
Throughout that peri o d the custom of Primogeniture was
steadily on the increase fav ouYG d b y circumstances the very
opposite of those wh ich had favoured it a century before
F rom D omesday to G lanvi lle it h ad been resorted to by the
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Pas ch
oh rot 6 i n d so Kane
b y R obin s on in his G rv e lk i nd
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4J
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0
2
or
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Pas ch . 9 J oh
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rot
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7 K ane ; quot ed
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22
so cagers in consequen c e of the decay of legal organisation
F rom Glanville t o Brae t on it is forced upon the socagers in
Th e
consequence of the revi val of legal organisation
establishment by Henry II of a strong central trib unal
caused a rapid development of j urisprudence whilst the
frequent visi t s of the itinerant j ustices carried the new
"
principles into every part O f the c ount ry
The fascinat ing
ideal of Roman law had j ust sei z ed upon the minds of
Englishmen The e ffort to simplify and sys t ematise custom
was at its height The metropolitan j udge construed lo c al
custom strictly and moreover never carried it into other
neighbourhoods
Hence the u ni formi ty of descent in free
hold lands contrasts vivi dly with the eccentric customs of
copyhold inheritances which did not fall under the j uri s di c
tion of a central court until two centuries after this Still
stronger is the contras t with the endless complications of
the F rench provincial laws over whose peculiaritie s no
metropolitan tribunal ever exercised supervision
By a further paradox the mili tary change which set in
s i multaneously with this j udicial one was also and as
exp e ctedly favourable to Primogeniture The institution
of Scutage undermined the military sys t em
for the sake
of which alone Primogeniture had been introduced
But
by so doing it removed from view the motive for establishing
a double system of descent and by rendering this system t o
all appearance an obj ectless complication gave free scope
to the reformi ng spirit of the time
Two illustrations of the ease with which estates passed
from the old custom to the new are to be found in those
early year books which t h e M aster of the Rolls has lately
reprinted from the Cambridge M S
I n 12 9 2 two younger
brothers sue i the eldest for their purparties O f the inherit
ance and the history of the estate is carried back for three
s uccessions
Their great grandfather had six brothers T W O O f
them had di vided the inheritance with him ;b ut as this left four
unprovided for it is not unlikely that the two entered only as
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S t ubb Con s t His t I 3 8 7— 3 9 0 59 6 — 6 04 S tu bb s Select Charters
13 1 ; D igby 5 4— 57
'
1 D e Maut e ly 12 D e Maut e ly 2 0 Ed w I p 23 0
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23
purchasers from the i r brother and not as c o he i rs wi th h im
Still this succession must have been regarded as questionable
for when the eldest brother died all the six younger agreed
and granted for themselves and the i r heirs that the land was
”
not partible ;and thereupon they levied a fi ne
This solemn
declaration settled the question for the time and their eldest
brother s eldest son suc c eeded him to the exclusion of
A g ain in a similar action ten years
five younger sons
*
later the estate appears to have been parted in Richard s
reign and again in John s ; but the father of the present
litigants had su cc eeded by ex clusive Primogeniture This
case is also valuable as showing that the analogy of the
Statute of W estminster the F i rs t had already been adopted
and the accession of Richard taken as the limit of legal
memory ; that date is here stated as the point beyond whi ch
evi dence of an cient partition need not be carried
But the great turning point in j urisprudence was reached
on the day when the presumption of custom was reversed
After thi s the mere extension of geographical area involved
in the rules of law Braeton seventy or
no
eigh ty y ears after Glanville states the law of so c age descent
in t e r ms w h ich vary le ss than might be expected from the
r ule s of G lanville One change alone is prominent I f the
free s oc rnan s land is not partible no one but the eldest son
can be h e ir of it I t is only in mlle i n socage that Primo
“
gen i ture remain s a mere quorund am consuetudo contesting
the field with Borough Engli sh f l A little earlier he had
l aid down ; in the words which F leta copies as the general
“
p ri n c iple of i nh eri tan c e law that I f a man have more sons
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S e l man v Sedm an 3 0 E d w I p 56
1 Si liber s oc mannu mori at ur pluribu s re li t is h e red ib us t p a t i c i p ib us
eredit as p a t i b ilis si t e t ab ant i qu divi a haeredes quot quot e unt h ab ant
si h a
p art es s u as ze quale s e t s i unicum fuerit m uagi um illud integre re mane at
primogenito i t a t ame n quod alii hab ant ad v alentiam de communi Si autem
non fuerit hereditas divisa ab ant i qu t une tota e mane at primogenito Si
E t
aute m fue ri t s oc agi um v i llanurn t une con s uetudo loci crit ob ervand a
enim con uetudo i n qui b usd am partibu s quod pos tn atu s p raef rt u primo
genito e t 6 c ont rari b — Braeton fol 7 6
1 Si quis p lu e h aberet fi li s jus proprietatis s emper des cendi t ad primo
o quod ips e inven t u s e t p ri m in rerum n at ura — Bract on 6 4b
e ni t um
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24
than one the right of ownership always des c en d s t o the fi rs t
”
born since he w as the first to come into existence
He
once speaks as does F leta in the corresponding passage
i
the
partition
a
tenement
held
by
military
serv
ce in
f
o
of
terms which imply that even there a partition migh t
arise among male coparceners H ow this is to be reconcile d
wi th Glanville s absolute statement about knightly Primo
geniture it is vain to inquire at the present day Exceptional
local custom may in some rare instances have kept a
military fee partible ; or the writers may have had i n their
min ds only a partition between sisters sons ; but the cor
ru t ne s s of the present printed tex ts of both Braeton and
p
F leta renders it more probable that in p ri moge ni t us and
”
”
primogeni to we have copyists errors for pri mogen i ta
”
and p ri moge ni t ae and that the partition in view was not
among coheirs but c oheiresses
"
Brac t on lays down a furt h e r rule cop i ed by F leta and
by Bri t t ond which vivi dly illustrates the military ad v an
tage of Primogeniture Where a partition takes place the
manorhouse or castle which is the chief building of a county
I t must be given into the
or a barony must not be parted
sole charge of the eldest son or daughter for the ri gh t of
”
the sword which suffers no divi sion
But th a
t the reason
of this rule lay in the military policy of having a single
leader at the head of a b e s e ige d force and not in any belief
in a birthright of the eldest child is clear ; as well from t h e
fact that the child who so received the c as tle had to pay a
compensati on for the others share Of it as from the further
rule that where there were more such chief bui ldings than
one they should not all go to the eldest but be given to the
children in succession so far as their numbe r allowed Pri mo
geniture similarly obtains amongst daughters when an
hereditary o ffice like that O f Constable of England descends
t o them ; the husband of the eld e st alone can ex e c ute its
duties This p ri nciple of the indivisibility O f a public f unc
tion is most prominently illustrated by th e descent O f the
royal crown t o the eld e s t O f t h e King s da ughte rs In the
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III
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25
however of mere titles of honour the principle of indi
visibility is applied without adhering to the principle O f
Primogeni ture Braeton recognises unlike Continental F eu
d ists the right of female descendants t o a titl e of dignity and
gives it to the eldest daughter But Henry III seems t o
“
have rejected in practice the claim of female heirs ; and
when later law recognised their right it recognised also the
right O f the Crown to choose any one O f the daughters to
be the peeress (But the land s will of course descend t o
them all as coparceners ) This power of selection represents
a stage through which the inheritance law O f land has also
pass ed ; for after the Continental Feudi sts had recognis e d
the hereditary nature Of the v assal s tenancy they continued
for some time to gi ve the lord the right of selecting the s on
who shoul d succeed
Similarly the Canon Law after
establishing the absolute duty of paying tithe originally
permitted the payer to select the priest t o whom his c on
t ri b ut i on should be gi v e nxj
I n one point Brac t on s law Of descent shows a marked
advance upon G lanville I n Henry I I s time it was still
magna j uris d ub i t at i o i whether at a military tenant s
death his fi e f must go to his eldest living son ; or whether
a grandchild by a predeceas ed elder son would have a prior
right When Primogeniture comes to be regarded as the
fundamental principle of the law O f descent the right of
representation seems a necessary logical consequence But
i n earlier days when men still regarded Primogeniture as a
mere means t o an end they could not fail to see that it w as
the eldes t descendant not the descendant of the eldest line
that would best serve the military purpose of the rul e
The principle Of Representation established its elf in F ranc e
whilst the controversy was still waging in England Hence
whilst across the Channel Arthur was generally regarded as
Henry s lawful heir and Joh n as an usurper ; John though
already pe rs onally unpopular found his claim recognised in
N ormandy and England But in spite of this great pre c edent
case
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Selden Titles of Honour p 88 1 and p 6 44
e CO Litt 16 5a with Butler s no t es
On the whole of thi s s ubject
Braet on 6 4b
G l anvi ll e v ii 3
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English legal opin i on ultimately adopted the Continental rule
doubtless because the institution of scutage and the settled
s tate of the c ount ry h ad now destroyed the original motives for
Primogeniture Hence Brae ton gives it as settled law that the
de scendant always represents the ancestor in his rights of
inheritance
"
M r Barrington has published some old F rench verses
which assert that in 12 6 3 (about the time when Braeton was
”
wri ting) the law of Primogeniture then de tres long tenue
in England became the subj ect of a debate in Parliament
I t is contrasted un favourably with the custom O f F rance
which prescribed
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Q ue
le s
e nfans
d
’
un
p ere
ne z ,
S e nge nd re z f us s en t loyaue me nt ,
P art ss en t a l e ur ygaume nt
’
i
e l on l ord re qu i ls
C omme c i l d e Fr an c e
Et
’
s
’
d e v oi e nt ,
fai s oi e nt
”
.
F leta twenty years later gives a mere repetition of
Braeton and the language of an advocate of F leta s time
puts socage Primogeniture on but a qualified basis I n
D e Maut e ly u D e Maut e ly j the eldest son s counsel only
urges that The tenements are socage it does not thereby
follow they are partible ; for i n s ome p lac es as well the
tenements holden in socage as other tenements are governed
by the common law
But Bri t t e n though ve ry little later
than F leta expressly recogni s es Primogeniture as the general
law of land saying without qualification Age is materi al
because he who is the firstborn is admissible before the
younger son O f the same father and mot h e r i
I ndeed the Statutum Walli ae enacted in A D 12 8 4 a year
or two before the publication of F leta makes it clear that
by that ti me Primogeniture was familiarly recognised as
the common custom of English inheritances I t treats the
partibility of land among males as a W elsh peculiarity
sharply opposed t o English us age " This partibility it per
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Obs ervations
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bove
Bri t t e n vi
1 S ee
1:
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,
12 E d w
s uc c e s s i one
on the Statu tes no te on the S tatu tum Wallise
”
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I
.
(M r Ni c h ol s t rans l ation)
Q uia ali ter usi tat um e s t in
’
2, 3
m h e re d i t at i s
.
,
.
eo
qu od hereditas
Wallis qu am in A nglia quoad
p art i b ilis e s t in t er heredes mas
,
o
28
I reland sets a stumbli ng block before the Engl i sh reader at
the very outset of I rish his t ory
-
,
But G av e lk m
d lras long been a favouri te fiel d for theori sts
I ndeed the anomaly of its s urv i v al 'i n Kent is a problem
that arrests the attention of every student I t has been
said that the W elsh retaine d Partibili ty in order that noble
blood might never be lan dless since every son is as good a
”
gentleman as his elder brother
I t has been said that the
Kentishmen retained it because they were not gentlemen
but plain farmers indi fferent to family dignity I t has been
said that Bishop O d o and h i s Normans forced it upon the
men of Kent I t has be en said that it was preserved in the
teeth of the N ormans by the daring of the men of Kent at
Swanscombe I t has been said that W ales and Kent retained
i t for military reasons one being exposed to I reland and the
other to F rance that every man might have means to resist
”
the enemy
Wh ilst it has been O bserved as plai n matter
O f fact that in Kent as in the rest O f England partibility
never extended to mi litary land
But the history of Primogeniture remains gravely defe e
tive so long as the unique position O f Kent remains unac
counted for I t is an anomaly of the hi ghest value for th e
historian ; for it enables him to test his general theory by a
strict application of the M ethod O f D ifference The pop ular
“
explanation which re fers this pec uliari ty the Kentish s ur
v i v al of Saxon custo mto the special favo ur of the Conqueror
itself requires e xplanation I t is quite possible that be neath
the fable of the moving wood of Swanscombe some true
story i s concealed I t is quite possible that W illiam di d
covenant with the men O f Kent for the preservation of their
Saxon laws
I t was a c ovenant which he made w ith other
Englishmen I t was a covenant which he confirmed by
charter and by stat ute But the di fficulty comes back in
form
nother
W
h
y
was
the
covenant
kept
in
Kent
when
a
i t was forgott en eve ry where e lse 7
1
S tephen Bl ack tone I 222
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P algrave (His t Norm II I 36 4) accepts the s ub s tantive truth of t h e
s tory
Bu t M r Freeman (Norm an Conques t III 5 38B) ob s erves There i s
nothing to show that Ke nt w as b e tter treat ed than the res t of E ngl and A s
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The fa c t is that Wi lliam dealt with the land of Kent as
he dealt with the land O f every county W hat he gave to
mi litary tenants he gave to descend by Primogeniture— and
every manor mentioned in the D omesday survey O f Kent
was held by military servi ce except those that lay in
frank almoign W hat he left in the hands of the Old owners
he left t o descend by the old custom I t was o nly in later
days than W illiam s that any distinction arose between Kent
and the rest of England I n the c ountry at large as we
have seen Primogeniture was introduced into mili tary lands
from above and avowe dly by the ambition Of the superi or as
he granted each new tenement ; but into so c age lan ds from
below and silently by the timidity of the socagers as they
sought each other s protection I n Kent it was the socage
lands alone that es c aped Primoge ni ture W as there any
thing peculi ar in the position of the Kentish so cagers ?
There was They h ad less danger to fear and far more
strength t o resist danger than their brothers in any other
p art O f England Even at the date of D omesday the
cultivators of Kent held a far di fferent positi on from that of
their brethren in other counties I n name alone had the
ceorl who sat upon G afOl land sunk i nto a villein He
i s still alod i d ri us and so can sell h is land witho ut licence
from the lord ; th ough he may be outlawed if he quit it He
has not lost his place in the fre e me n s hun d re d moot The
s i llani
Kent w ere free socage tenants and the
of
b orchl ril free h usban dmen ; o nly th e c olon i a
l and s e rv i
were in th e same position O f serfdom as the v i llani
“
of
other co unties
I n oth er words three fi ft h s of
the pop ulation of Englan d were i n a state of d egra
dation in wh ich onl y one eleventh O f th e Kentis h folk lay
By Edward I s time it h ad become a proverb that there
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it w a
under O do it w as perhaps treated a little wors e A nd again
Nothing bette r up ets the legendary belief that Kent Ob tai ned
(v
s pe ci al privi lege s from Willi am th an a gl ance at the Kentis h D omes d ay
A t the time of the s urvey there w as not a s ingle priv ate E nglis h te n an t in
capite in all Kent
“
E lton
Tenures of Kent pp 12 1 13 4 147
E W Rob er ts on
S c o tland under her E arly Kings 11 16 6 26 4 6
s
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”
are no villeins in Kent , and the son of a villein if b orn
*
there became free
By far the larger portion of the soil
was cultivated by freeholde rs ; everywhere else the great
body of the cultivators were the mere playthings of the
lord s will Hence the paucity of copyhol d i n Kent at this
day I n D omesday Book these freeholders t h e 6 5 9 7 v i llcmi
and 3 118 b orclar ii hold land to the extent of 2 33 2 s uli ngs
All the rest of the inclosed land of the
or p lough land s f
cou nty all the demesnes of the military and th e sp iri tual
lords amount only to 6 8 0 s uli ngs i
The
But the free c ultivators had another advantage
lord s of Kent were less terrible than those of other counties
In the D omesday of 108 6 as in that of 18 7 6 Kent stands
Besides the Church s vast
out as the shi re of pious uses
possessions in frankalmoign she was the great military
tenant of the county Of the 2 7 8 knights fees holden i n
108 were hers "
W hatever were the vices of a
c ap i t e
spiritual rule it was not one from which the tenant need fear
violence or bloodshed ; it was not a rule of wanton wrong
F inally t h e geographical position of Kent was a safe gu ard
The oppressio n in which a feudal lord could
t o the soc ag e r
indulge in a re mote shire became too perilous within
s afe l}
a short march of t h e metropolis and on the highway of
armies to the Cinque Ports It is a significant fact that
nowhere in England is the hold of Primogeniture so limited
as i n the counties which lie between London and the
Chann e l seal oard
G avelkind is supreme in Kent ; Surrey
and Sussex are the strongholds of Borough E ngli s h “
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S o l ld i n 3 0 E d w
n
1 E lt
''
on,
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I
and s ee
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12 1, 18 4, 147, 143
pp
Lingard (I . 8 7 2) l as fallt n on
.
7 I I 6 , 3 3a
.
.
Mr
—
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.
this
Y
E lton p oints
b j e ct
su
.
out
t he
e
rrors i nto w hi ch
.
It w as e v e n s aid j udic iall y i n 18 E d w
th at all t h e l and i n Ke nt is
h olde n i n s ocag e b ut thi s (e v e n allow ing for t h e cre ation of p e tty s e rj e antie s
and t h e dimi nuti on of frank almoign i n t h e inte rv e ni ng c e nt uri e s) w as of
c ourse an e xagge ration
Haste " i n t h igh te e nth ce nt ury comp ute d that t h e e pis copal and othe r
c orp orations 1 old l ands i n Ke nt (ind e p e nd e ntl y of gl e b e s and tith es ) t o t he
a y e ar (H is t K e nt I
v al ue of
II N o le s s t h an 1 43 manc rs i n S us s e x are said t o pr e s e rv e thi s cus t om th us
”
making it almos t t h e common law of that county
Mr C orne r w h o re ck ons
13 6 such m ore i n S usse x only found 18 3 i n all t h e r e s t of England
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31
T hese three caus es coml i ne d t o I re s e rv e i n K e nt the
Saxon law of inheri tance The unu s u al p ro l l 11118 1103 c f
socagers among t l e freeholders w h o d e c lare l full r igh t in
the s hi re mot e su ffi ced to preserve al o other Saxon customs
whi ch stood in le s s peri l The lord co uld c lai 1 no li ne on
T he lord could not ej ect the sons of the
alienation
‘
"
c onvicted felon
In Brac t on s time socage tenants all
over England were regarded as minors until fifte en The
i nfluence of the Proculian rule reduced this before Little
ton s day to fourteen
But in Kent the socage maj ority
amo ng the suito rs of the s hi re mot e w as strong enough to
outvote the change
O n this point at any rate the di ffer
e nce of law could not be due t o any conduct of W illiam the
Conqueror
Where the infl uence of the soc gers and their shire
a
mo t e di d not extend gavelkind be came as obsolete in
Kent as elsewhere The mili tary tenants adopte d Primo
geniture
N ay when the socagers themselves accep t
demesne land in villein tenure they had at first to s ubmit t o
Primogeniture The men who held of the Priors of Cante r
bury i n villein socage who could sell neither their lands nor
their bullocks without licence from the monastery inherited
those lands by the knightly rule ; antenatus s uc c e d e t in
totum
By the end of Richard I I s reig n however
gavelkind had spread itself over every kind of ancient socage
land throughout the shire
The security which the socage rs in Kent derived from
their n umbers was possessed also throughout Englan l by
the burgesses of towns
Here again there was no mili tary
service which could lead the lord to desire Primogenit ure
for the fi rm b arge? bought off all exactions A Boro ugh
E ngli s h or in plainer phrase a Saxon
th us left
unaffected by either of the currents of circumstance that
were spreadi ng Prim oge niture in t h e ru ral di stricts would
preserve its ancient custom uni mpaired Hence arose vivid
contrasts like that whi ch was visible i n Edward IlI s time
at N ottingham1 and which w as still perceptible there in the
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Fe 6 6
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III 12a C ompare t he D omes day (179 ) ac c ount of H ereford
e B orough E nglis h i s still s tr ong
r
13 1 E d w
.
place
he
w
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32
eighteenth century
In the old b urgh E ngloges the land
went on descending t o the youngest s on whilst beyond its
West end a ne w settlement had spru ng up since the N orman
Conquest and in that b urgh Fraunc oyes Primogeniture
prevailed It must be remembered that the old Saxon right
of dev ise was also preserved in towns so that a home keeping
elder son would not be left destitute
Yet from time to time Primogeniture made headway even
in Kent Record remains of at least t w o busy p eriods of
—
d is gav e lme nt the thirteenth and the sixteenth centuries
The earlier one is due t o regal prerogative ; the latter t o
statute The extension of Primogeniture to socage lands
was avowed as an obj ect of statecraft and political
authority was exercised directly on its behalf
The
king would turn into knight service the gavelkind lands
tenant i n chief or would ratify a corresponding
of his
conversion made by a mesne lord N ay John gave to the
Archbishops of Canterbury by an anticipatory charter full
p ower to make such conversions whenever they should will
“
'
By the law of th at t i me fi all such changes of the tenure
destroyed the custom of partibility The gavelkind lands
which John de Cob e h am held of mesne lords in Kent
were brought under the law of Primogeniture by Edward I
T h e charter purports to make this change solely by way of
special favour and honour in return for Ce b e h am s servic e s
to t h e crown
But it is a significant fact that its o nly
recital is not a statement of those services but an
impeachment of gavelkind on grounds of public policy
The passage stands in vivid contrast with the Statutum
Walli ae Edward s power lay in the strength of Kentish
men and the weak ness of W elshmen
F rom Kentish
gavelkind says the king it hath frequently come to pass
that lands and tenements which whi lst in si ngle hands and
unparted were large enough to give strength to the realm
and decent support to many dependents have presently
been torn and split am ongst j oint heirs i nto so many
parts and parcels that at last no man s share w as large
enough for his own
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times Y B
charte r i s give n in
N ot i n late r
l Th e
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2 6 H V III . 4b
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.
Rob i ns on s w ork
’
c harte r i s of 1202
“
av e lki nd p 7 7
Ad
John s
’
on
G
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33
But the next generation saw this p rerogative abandoned
*
Early in Edward I I s reign a plai nti ff in the Common
Ple as boldly asserted in his replication the invalidity of a
c harter by whi ch Hen ry III had ratified a similar con
v e rsion of gavelkind lands made by a s e i gnore s s who held
under a treble subin feudation Before the question could be
argued Edward addressed to the j udges a royal writ in
assertion of the prerogative citing Cob e h am s charter as a
clear precedent and declaring such conversions t o have
an evident obj ect and t o be for the necessary interest of the
realm
But legal opinion must have become strong against
the prerogative for the j ustices remained unconvinced ; they
avoided the royal displeasure by giving no j udgment for
either side The prerogative was never exercised again
even on behalf of tenants i n chie f
A century and a half elapsed before Parliament began the
work of d i s gav e lme nt There were in 143 9 according to the
preamble of 18 H VI c
not more than forty men
'
i n Kent holding lands that were not gavelkind
In
149 6 Sir Richard G uld e ford s lands
and in 15 21 Sir
Henry Wi at s were disgavelled b y private Acts
But
immediately after the di ssolution of the monasteries a more
sweeping measure was passed The favourites whom the
king endowed out of his Kentish spoils would not let
the families they were foundi ng be dissolved by Kentish
partition s : The Act which was passed for their protection
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p ote s tate m p e rt i ne t e t offi c i um ut p art i um s uarum l e ge s e t
c o ns ue tudine s quas j us tas e t util e s c e ns e t ratas h ab e at e t ob se rv ari fac i at
i nc onc uss as ; ill as aut e m quae r e g ni r ob ur quand oque d i mi nue re p ot i us quam
aug e re aut c ons e rv ar e v i d e nt ur ab ole re c onv e ni t aut sal t e m i n me li us ap ud
fi d e le s s uos e t b e ne me ri t o s d e s pe ciali gr atiac ommutar e c umque e x d i ut ina
c ons ue t udine qua: i n c omi tat u R ancias quoad d i v i si one m e t p art i t i one m
t e rrarum e t t e ne me nt orum quas i n gav e lik e nd am t e ne r e s ol e nt fr e que nt e r
ut t e rra
e e t te ne me nts
ac c id e ri t
qua: i n qu orund am mani b us int e gra ad
mag num r e gni s ub s idi um e t ad v i c t um mult orum d e ce nte r s uffi c e re s ol e nt i n
e re d es p os t mod um dis trae te s unt e t divis a
t o t parte s e t p art i c ulas i nt e r c oh a
m nulli p ars s ua salt e m s uffi c e re p oss i t ad v i c t um
ut e oru
G at e wy k v G at e w yk (6 E d w I I 8 0 according t o R ob i nson)
1 Mr E lt on giv e s h ow e v e r s ome r e as ons for s upp os ing th at this e s timat e
w as not quit e e xhaus tiv e
I It mus t b e r e me mb e re d that t h e S tatut e of Wills w as not y e t pass e d and
that t h e Ke ntis h c us to m of d e v ise w as not e s tab li s h e d as valid till Ch as I I s
r e ign I nte s tate s ucce s s ion w as s till univ e rsal e x c e pt as re gard e d use s
re gi se c e ls i t ud inis
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3 4:
was i mport ant enou gh to be placed amp ng the public
statute s (3 1 H e n VII I c
it d i sgav e ls the lan d s of
thirty f our proprietors Early in Edward V I s r e i gn a
further d isgavelling A c t was passed covering the land s o f
forty four proprietors ; and three Acts of slight imp ortance
All these statute s aimed
followed the latest being in 16 2 4
solely at the introduction of Primogeniture and leave the
*
other gavelkind customs still in force
The work of d i s gav e lme nt was hardly e v e r when by the
indirect operation of the local law of Evidence an o p posite
process began
I n Ke nt the ancient presumption in favour
of the partibility of socage land had never been abandoned
Hence no eldest son can es t ablish his exclusive right except
by givi ng express evidence of previous exclusive descents or
by showing a statutory d i sgav e lme nt
But as the Acts
only name the proprietors without describi ng their estates
the ide ntity of the di sgavelled land c an seldom be established
aft er the lapse of three hundred years N or is much help
usually obtainable from evide nce of previous desce nt s since
i ntestacy has long been rare in England and only
half the cases of intestacy (those where the nearest
degree of heirs included more than one male ) would afford
any evidence in point
The field of Primogeniture in Kent
has therefore long been narrowing under the operation of
the same cause which from the year 12 00 has been extending
it in the rest of the country the rule of j udicial p re s ump
tion Even in Charles I I s time the process was already
observable in 17 40 Robi nson declared that there was then
nearly as much gavelkind land i n Kent as before the dis
gavelling Acts began ;and the evidence give n before the Real
Prope rty Commi ssioners of 18 3 01; went to show that the
known sp here of Primogeniture in Kent was by that time
quite as narrow as it had been four hundred years
previously "
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S u le l l
di vi s i
r:
fi ll a
(U
C otton (1
E
le r
le ref i ll Eli t y d e l
e s t at e s f ae ront r e d i c e
te
l
t t
pl us
es a e,
a
p e r que malt s
"
Las s d e gr e e —
.
familie s p e r
Wis e man 12
.
V.
'‘
l 1 S i d 11 3
.
1 F irs t
Bn
ut
i
.
R e p o rt
'
.
mi ss i o e rs
3 06 and 36 8
,
‘
i s Le z s i c le
L ay
now
.
th at lh e d ocu me nts w hi c h w e ow e t o t h e Re c ord Ce m
s e rv e in s ome c as e s t o un av e l p art s of t h e s e e s tat es
g
36
to the fact could they have foreseen it that a wider j uri s
prudence
looking before and after would detect in
the one custom the germ of English Primogeniture and
in the other the germ of Kentish gavelkind The partitive
succession of the clansmen was declared an invalid custom i n
1 6 05 ; and two years afterwards the elective succession of
their Chieftains was similarly abolished
Henceforth the
lan ds of the Sept of its Canfi nny and of t h e English
invader must all descend alike by the rule of Prim e
geniture
But the sun was to go back upon the dial
The
uni formity thus created under the first Stuart was not
to survive his dynasty
In the eighteenth century
there were two nations in Ireland for there were two
religions O ne ruled the other and the rulers aim was
not the wealth but the poverty no t the consolidation but
the disunion of their subj ects The policy by which W illiam
had broken up the Saxons and Ed w ard the W elsh was now
adopted by the Protestant against the Catholic By 2 Anne
c 6 s 10 (Irish ) under the plea that the fear of disherison
prevented the conversion of young people to Protestantism
the lands of Papists were made descendible among all and
”
every the sons share and share alike unless the eldest son
"
declared himself a Prot e s t ant
The division was imperative
and no settlement or devise could prevent it The family
estate thus broken down could not be raised again by an
ambitious son for Papists were by the same Act (s 6 )
declared incompetent to acquire lands by purchase
It was
not until seventy years aft erwards that by 17 and 18
G eo III e 49 all these partitions were abolished and
Primogeniture finally established throughout I re land d
O ur survey h as carried us throughout the lay freehold
lands of England But in one third of England if we may
trust t h e calculation attributed to Lord Coke the rise of
,
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,
S
me
rite rs se e m t o h ave ove rl ooke d t h e fact that this is not t h e r e s to
ration oi t h e Iris h cus to m b ut an introd uction of t h e Ke ntis h one
1 G ans act uall y s upp ose s t h e Ke lti c c us tom t o b e s till i n for c e in I r e land
”
D i e Iris ch e S itte h at e be nfalls noch h e ute d as Re c ht d e s G av e lk i nd l
b e halt e n
”
“
This w ould b e s tartling if it w e re not th at an
( D as E rb rec ht I V
E d i nb urgh Rev i ew (V 01 40) s e e ms e quall y at s e a up on t h e s ub j e c t
o
w
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,
‘‘
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37
Primogeniture remains still 1mt rac e d by us
Copyh old
lands as we have already said were not the subj ects of an
ownership that the king s cour t s would recognise until the
fift eenth century Yet long be fore this the forbearance or
the policy of the lords had accustomed them to permit the
heir of the tenant in villeinage to purchase admittance
to the lands of his deceased ancestor By what step that
custom spread from demesne to demesne we shall never
know unless before moths and worms have done their work
the las t great hiding place of English law be explored and
the rolls of our manor courts given to the hands of the
printer It s uffices for our present purpose to know that the
claim of inheritance had been conceded in nearly all manors
— i n some it remains to our ow n day formally unrecognised
— at a time when it still could be asserted only by petition
to the lord and had no colour of legal right Hence when
the Ch ancellor undertook— and till the eighte enth century
—
no court but his di d undertake
t o enforce the claim as a
right he found systems of rules for the devolution of the
claim already firmly established It was inevitable as we
have seen that schemes of descent growing up thus unc on
ne c t e d ly the fruit of the prej udices or caprices of thousands
of arbitrary lords should exhibit every eccentricity of rule But
the eccentricities had taken roo t too firmly to be eradicated
Lawyers contented themselves with a Pree s ump t i o Juris
applyi ng their ow n familiar system where no evidence of
contrary custom appeared By the side of manors which
admit all the sons and all the daughters manors which
admit all the sons manors which admit only the youngest
son manors which admit only the youngest of either sex
and manors which admit only the eldest of either sex
we find a predominant maj ority of manors where the rules
In our time indeed the
of the common law hold sway
Legislature h as caused an exte nsion of these rules t o some
few of the lands originally subj ect t o the rarer customs By
the Copyhold Act of 18 41 (4 and 5 Vic c 3 5 s
it is
provided that the lands included in any commutation made
“
under its powers are to cease to be subject t o the c us t om of
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D 2
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38
Borough English or gavelkind or any other customary
”
descent (unless they are Kentish land) and to descend
o
ike
free
and
common
s
cage The lands that
l
h
f
r
t
n
o
t he c
thus cease t o follow the manorial cust om nevertheless
remain copyhold Land that by enfranchisement ceases t o
be copyhold of course ceas es to be descendible by any copy
hold cus t om and must descend as socage
The Copyhold
Act 18 52 s 3 4 confirms this principle The area of eccentric
copyhold descent is steadily diminishing in consequence of
these enfranchisements and commutations ; eight thousand of
which have been e ffected by the Copyhold Commissioners
in addition to the numberless instances where the change
has been carried out by lord and tenant alone
A rarer kind of base tenure remains still for discussion
and it is one which curiously illustrat es an important
p rinciple of j uridical history A constant peril of customary
“
law is that of spontaneous depravation by false analogy f as
where sanitary rules swell i nto a ceremonial code or class
distinctions harden into caste The peril is greatest when
the custom is not of native growth for among foreign
surrou ndi ngs the clue to its original principle is usually lost
Thus it was when i n the sixteenth century the customary
freeholders of Cumberland and the adj oi ning counties
established their right of property against their lords The
tenant right which had been their only advantage over the
mere tenants at will now became a right to retain the land
its elf and t o transmit it to their heirs
But to what heirs ?
The custom of Primogeniture dominant among all other
classes of landowners was the natural model for their adop
tion ; they adopted it Thus starting from the outset with
the idea that priority of birth entitled one child to exclude
the others and knowi ng nothing of the causes which
had created and had limited that rule they naturally applied
it universally In the peaceful England of Elizabeth there
was nothing in the landowner s duty either to lord or
kinsfolk that would emphasise the distinction of sex The
eldest son has a better right than his brothers
The eldest
d aughter must have a better right than her sisters
Had
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.
Maine
,
Ancie nt
Law ,
"
pp
.
18 — 2 0
.
39
not the good queen herself been wholly set aside by Mary ?
Just as the English judges not knowing the history of the
rules they were copying excluded the consanguineous half
blood as well as the uterine ; s o the N orthcou ntryme n from
sim i lar ignorance excluded the younger daughte rs as well as
the younger sons
The exotic custom was extended by
*
false analogy
It is probably to the independent operation of the very
same cause that we ow e the establishment of the same
extreme form of Primoge ni ture in the Isle of Manrf There
the tenants did not acquire a legal right of i nheritance in
lieu of their old straw te nure until the Act of Settlement in
Their intercourse with the mainland was too much
17 03
with counties where like Westmoreland and Lancashire
customary freeholds were little known for us to suppose
t h e Primogeniture of daughte rs to have been copied by
them from Cumberland In Holland the same abnormal
rule prevailed ; but the foreign in fluence wh ich created it
operated not at the commencement but at the conclusion of
the history of Inheri t ance Law In Holland F eudal Law
never reached the same stages of development through
which the F eudists elsewhere carried it ; the Proper F eud
remained to the last presumably intransmissible to females
But in the more modern grants it sometimes happened that
the grantor expressly declared th at females might succeed
The foreign custom prematurely forced in such cases upon
D utc h law did not take the natural shape that it assumed
in the foreign countries and in the inferior D utch lands
wh ere it had grown up normally There all females of
equal degree i nheri te d together In the Proper F eud
D utch law insisted upon Primogeniture whatever were the
sex of th e hei n i
W ith frankalmoign lands we have no concern
Th e
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T hi rd Re port of
''
l J e fl c ot t
’
pp
.
s
o
S tatute Law s of t h e I s l e
e x t e nd e d t o p ur c h as e d land s
Man,
of
,
w
r
one s .
hi ch
p
"
h ad
A ppe ndix p
,
116
.
.
.
I n 17 77
4
.
P ri m
e
pr e viousl y be e n tre at e d
.
N eos t ad t ,
6 , 15.
Pr op e rty C mmis s i
'“
g e nit ure w as
as pe rs onalty
I Se e
t h e R eal
“
D
e
Fe udi
H olland i c i
S ucc
i
e ss one ,
”
Lugd uni,
16 20,
40
lands of a deathless owner lie beyond all laws of in h erit
ance But there remai ns for consideration one form of
landed proprietorship transmissible to successors though
unlike all of which we hav e spoken as yet not transmis
sible in pe rp etuity Unlike them again it is never trans
*
missible by Primogeniture Braeton describes the writ of
Ej e c t i o fi rm which had j ust been introduced for the pro
t e c t i on of leaseholders
But his account is too brief for us
to learn whether under that writ the land itself could in his
day be recovered Perhaps it was not until Equity set the
example of specific restitution that the farmer s interest
be c ame a
i n re m But whatever may have been the
date at which the right t o damages was raised into a right
of prope rty
the point of special interest to us is this
that the gradual transition from the one to the other so
identified the two in men s minds that even when the
prop erty right had got thoroughly established it still
remained descendible like the personal rights and never
became subj ect t o Primogeniture In Scotland the lessee s
i
s
n
1
4
i
e
r
m
was
in
4
turned
into
a
m
by
the
u
s
n
n
o
a
9
re
j
p
operation of an express statute ; and the suddenness of the
transition made its real character apparent The logical
consequence followed ; and to this day a term of years in
Scotland is not a moveable right but a heritable one not
partible but Pri moge ni t i v e rl The fact has not been with
out e ffect upon Scot t ish agricultur e ;
.
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r
A survey of English i nheritance law vi vidly illustrates
t h e peculiarities b f English feudalism
It has a stronger
hold as a system of land te nure and a weaker hold as a
system of political life than the feudalism of the Continent
In no continental nation was every inch of soil brought into
feudal subj ection ; even N ormandy permitted the franc ale u
t o exist and in Scotland and Jersey a few allodi al hol di ngs
.
,
.
,
,
F0 220
.
.
'‘
l
E r kin
s
e,
“
1 Lav e rgne ,
P rincipl e s of t h e Law of S cotland p
“
Rural E c onomy of E ngl and p 2 89
”
,
.
”
,
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.
13 2
.
41
survive to this day In no continental nation was Primo
geniture so absolute in its operation or so general in i ts
adoption ; in England it left nothing for the younger sons
and it prevailed in every tenure
In no continental nation
does Primogeniture still retain its hold as the typical rule of
succession In no continental nation are the lands labour
and capital requisite for agriculture still contributed by the
The rapidity with
c o ope ration of three separate classes
which our feudal law was developed was probably the cause
of i t s peculiarity
But the Primogeniture with which
William so deeply impressed it saved us from an aristocratic
caste ; as the centralising policy which began in his Salis
bury oath of fealty saved us from aristocratic oppressions
The doctrine that only one son succeeds to the father s
po sition saved us from an order of ge nt i ls b o mmes and barons
of sixteen quarteri ngs and gave us a hie rarchy of gentry
and yeomanry filling up every ste p of the gulf that lay void
between the continental noble and the continental peasant
When such a policy was at work it was natural that
feudalism should be equally weak in the sphere of finance ;
that the t ai lle should be unknown and the tenths and
fi ft e e nt h s be levied impartially from all lands knightly or
pacific base or free It was natural that the liberty of
alienation should be established u nusual ly early that entails
should be introduced unusually early to replace it and that
they in their turn should be rendered briefer and weaker than
in any oth er monarchy of pres revolutionary Europe
,
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—
I II.
THE
.
SU CC E SS I V E S A F E G UAR DS
or
P RIM OG ENITU R E
.
WE h ave now traced thro ugh every s p ecies of Englis h
land the history of Primogeniture the rule by which an
s t at e
property
descends
to
his
eldest
son
But
there
is
a
t e
fi
cognate subj ect which it may not be altogether out of pl ace
to deal with
”
Under the phrase Law of Primogeniture popular con
t rov e rsy often assails the law of entail and the law of
settlements Ab surd as the confusion may appear t o a
—
.
.
“
.
42
lawyer it is not unnatural to a lay observer F or the
rareness of intestacy has long rendered the ope ration of the
law of Primogeniture comparatively rare ; and it is by
settlements amongst the higher classes and by Wills amongst
the mid d le classes that the corresponding habi tr t h e
aristocratic p reference of eldest sons— is perpetua t ed into
future generations Let us trace the s t ages by which these
have been admitte d to supplement the operation of the law
The Saxons had allowed a grantor of b oc land to prohibit
the grantee from aliening or devising it beyond the c i rcle
*
of his family
The early F eudal law gave the heir still
greater security by a general abolition of devises and a
prohibition of all alienations that were extensive enough to
produce entire d i sh e ri s onrl By Brae t on s time the p roh i b i
tion was obsolete ; but every fee simple conditional pro d uced
te mporary inalienability Meanwhile about the same time
that Primogeniture became predominant in socage lands
— e fforts were made by the lords to restrict alienation
and
these though i ntended for their ow n protection protected the
heir also The Magna Char t a of 1217 1 imposed a l i mi t ed
restriction which in the case of te nants in chief soon
became an absolute one upon res tricti ons without licence
Braeton " describes the mesne lords of his day as endea
vour ing to impose a similar absolute restriction upon their
At the beginning of the reign of
ow n tenan t s but in vain
Edward I about the same time that Primogeniture became
—
universal in socage lands they changed their policy They
ch anged i t in a manner doubly i njurious to the heir By
the statute Qui et E mp t ores ”of 12 9 0 they not only gave
up all power t o restrict alienations but they enacted that
alienation should always take place in the mode by which
the heir w as most impoverished
Substitution was to
supersede sub i nfeudation
N o changes however took
place in a statute of very opposite tendency which th ey
h ad p assed five years previously in the interests of their
By this enactment the D e D e ni s Cond i ti on
ow n heirs
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Law s
of
t Cap 3 9
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A lfre d
,
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S tub b
s
’
“
S
l ct Charte rs
e e
I I 19 .
.
”
,
p
.
63
l G
’ ’
.
lanvill e
ll 18 Ed w .
c
1
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,
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1.
44
disentailment In the reign of Henry VI a co n
tingent
remai nder was for the first time allowed t o be valid As
soon as tenants in tail who were not i n possession received
the power of barring their estates by F ines the i ngenuity
of conveyancers fell back upon these contingent remainders
"
as aiding the postponement of that p ow e rf The land
which was to form a family patrimony was given as to
this day it is to the livi ng head not as an estate tail but only
as a life estate ; and the remainder in tail was sent in
”
gremium legis to await the birth of another generati on
U
nder
the
Commonwealth
the
risk
attainder
for
o
f
(
treas on led t o the insertion of Trustees to preserve the re
mai nd e r and when powers of appoi ntment were afterwards
introduced settlements finally as sumed their prese nt form )
There was no living man who could sell or devise the estate
It must inevitably become the property of the yet unborn
eldest s on ; and not only until his birt h but until at the age
of twenty one he acqui res the power of barri ng the entail
the land becomes an assured family possession certain to
pass from owner to owner in the ve ry order in which a
descent by Primogeniture would have carried i t How far
such an assurance could be carried remained a di sputed
point but legal op i nfon has long settled that beyond the age
of maj ority of the first u nborn generation the liberty of
alienation cannot be restrained As soon however as that
age is reached the existing entail is destroyed and the
estate resettled ; and thus for generations each successive
eldest son comes into his patrimony as an ascertained
remainderman and not under the law of Primogeniture
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—
I V.
TH E
E FF E CT S or T H E
LA W
or
P RIM OG EN ITU R E
.
have already sketched the mi litary advantages which
as the Conqueror foresaw resulted from the establishment
The most apparent was the concentration
of Primogeniture
In war as in di plomacy silence and
of martial force
IV E
,
,
.
.
rlie s t r e cord e d pr e c e d e nts w e re dr aw n i n 3
“
Mr J oshua Williams pap e r i n t he Juridical
Th e
(S e e
ea
’
.
I 47 , 48J
.
,
,
P hili p and Mary
S ocie ty s Transacti ons
and
4
.
”
’
,
45
secrecy are powers The fewer the leaders who share or
execute the counsels of a general the more rapid and more
direct will his operations be The feudal army consiste d of
groups of tenants looking to their landlords not of a body
Each man in
of soldiers looki ng to their one commander
modern phras e thought more of his colonel than of his
general and more of his regi ment than of his cause W illiam
reduced t o a minimum the friction of the ill hinged machine
and the embarrassments in which the con fl icting interests
j ealousies and plans of his various barons incessantly
involved their chief But it was not only among the great
vassals that military advantages resulted from the es t ablish
me nt of Primogeniture they were perceptible in the very
lowest ranks of the feudal army The risk of a knightly
feud devolving on an infant heir was reduced to its lowest
degree whilst in gavelkind succession it rarely happens that
all the coparceners have attained majority
A further
advantage of Primogeniture lay in its preventing that
abbreviation of the period of service which a subdivision of
the knight s fee would have caused F orty days were the
limi t of time for which each fee was bou nd to furnish its
horseman yearly In an age of bad roads and slow marches
so many days elapsed before the whol e army could be
gathered to the destined field that but little margin was left
for the campaign A hundred years later when Henry of
Anj ou had t o defend a realm that stretc hed from the
O rkneys t o the Pyrenees a six weeks soldier became worth
less ; and first by j oint equipments and afterwards by
scutage the whole system was broken up But if the forty
days were thus inadequate what must twenty or t e n have
been ? Yet when the knight s fee was subdivided the
necessary apportionment of the services could only be
e ffecte d by a subdivision of their duration The feudal lev y
from some great Honour would go in one generation for i t s
forty days and turn the fortunes of a war Sixty years
afterwards if gavelkind prevailed in it it would set out
quadrupled in numbers for a ten days march and never
reach the field i n time t o strike a blow
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46
W e have already enumerated some political institutions
which te stify to this day W illiam s foresight as a statesman
That as a general he was equally farseeing he proved when he
delivered his realm from the disinte grating law of gavelkind
which shattered the military strength of Wales and Ireland
wh ere l i ke C aesar s Britons the Kelts t o the last s i nguli
’
.
,
,
,
’
,
,
p
ugnab ant , w ai v e rs i aunt v i c t i
.
But i n days of club law it was not merely in the arena
of national hostilities that Primogeniture was found a tower
of strength
Even for local self protection and even
among peace living socmen it had a part to play Between
the death of the great N orman and the accession of the
Empress s son there was many a time when in many a
district younger brothers found themselves richer by their
poverty The wealth of the firstborn around whom they
circled was a far more powerful shield to each of them than
his own apportioned share of it could ever have been
W e have already seen how deeply the sad experience of
a single century had engraved this le s son upon s oc me n s
minds when the great Jus t i c i ar wrote Purparties were
disappearing before Primogeniture
The next age saw a change Under the reign of law the
protection of Primogeniture was no longer needed by men of
peace and when armies of mercenaries could be hired with
scutage money it had no longer any i nfl uence upon the men
In modern England the possessor of an acre is
of war
as safe as the possessor of a county N o man is his own
policeman Henceforth the only e ffects of Primoge niture
upon English society— whether in early days as an intestacy
law or in later one s as a custom of Settlement— are
administrative or economical
When the Statute of Tenures completed the destruction
of the feudal military syste m the social and j udicial organ i sa
tions of England were still as feudal in their e s sence as
they had been when that system was undermined five
hundred years before by the Scutage of Toulouse A n d when
in our ow n day the creation of a ci tizen army formed another
epoch in English mil i tary h i story it found the pacific
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47
organisation of the country feudal still O ur county taxa
tion is not in the hands of a representative body nor is our
county j u di cature in the hand of a bureaucracy In every
agricultural parish there is a dominant and resident landowner
the centre of intelligence of charity and of social life Upon
a body composed almost exclusively of such men the
ju di cial and financial work of each county is devolved by
Hereditary public duty created an here
our constitution
di t ary public spirit which secured the due performance of
all these functions even in days less conscientious than our
In a hard winter when the porridge and the faggots
ow n
had got scarce the Gloucestershire peasants would ill
have spared even Justice Silence and Justice Shallow ;
and we know that Squire W estern was as zealous amongst
the quorum as at the coverside How invaluable the powers
of such a position became when they were exercised by
an A l lworthy has been told by the great m aster of E nglish
life and feeling Such men independent of a Minister s smile
or frown formed the rallyi ng points of English political l i fe
In every generation our country has had her H amp d e ns
her S av i le s and her A lt h orp s the trained and trus t ed captains
of proud followers t o lay their steady hands upon the helm of
her fate F rance to day possessed of no leader with a visible
stake in her prosperity lies at the mercy of adventurous
av oc ats and pressmen whilst her peasant proprietors doze in
political lethargy through the intervals between the p leb i s
ci t es
Yet for these social advantages there was a social price to
pay It is as true in the parish as in the nation that a
paternal government makes a chil di sh people A man whose
brothers and neighbours are dependent upon him is prone
to become overbearing whilst the neighbours and even the
brothers are apt to become obsequious
The e ffect of
Primogeniture on national character could not be ennobli ng
The statesman of the N orthern dales might love to scan
his righ t s } and the men of Kent might cherish the bold and
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“
”
Word s w orth s pictur e s i n p oe try and p ros e
”
—
p olitic al ec onomis t A li s on On P opul ation II 3 1
To
’
,
,
.
.
ad d
t he
es
ti mate
of
a
48
boisterous sp irit t o which J ack Cade app ealed and which
nerved them under Wyatt to shake Q ueen Mary s throne
But in the cou nties where te nantry and peasantry felt the
in fl uence of Primogeniture there were no villagers less
fabulous than those of Auburn whom the Traveller could
have found learn i ng to venerate themselves as men The
next few years of our ow n time will s h ow what feelings the
leaders of agricultural trades unions may kindle among their
followers It is impossible t o foresee h ow great a sedition a
little fire may kindle amon gst men who have no stake in
their country
O ne thing at leas t is sure : an English
revolution would be no mere change of dynasty like the
periodi cal revolutions which ruffl e so little the even te nor of
F rench life It would strike at the very root of property
and order for on th i s side of the Channel we have not six
million small proprie t ors with their hands on the throat
of Communism
There w as also a penalty of a more palpable character
to pay
In Po rtugal where Primogeniture held greater
sway than in any continental country the blue blood of
disinherite d younger sons could not brook the touch of
even sword or robe and they prefe rred instead to live
on casual alms But in England as in F rance the ge nt i l
hommc was less proud and the public purse more ample
There was always a pair of colours a s le e p an embass y or
I n days not
a b e ne fi c e for a portionless yo unger son
altogether forgotten by livi ng men an overgrown diplo
matic service excessive armame nts and a secularised and
simoniacal Church atteste d t o the world the presence of
‘
Primogeniture in England ?
This darker side of the picture naturally suggests an
inquiry into the general e ffects of Primogeniture upon
national wealth W ith reluctance we approach a question
which Mr J S Mill has declared to be one of the most
dispu t ed in the whole range of political economy
The
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Th e re i s e xtant i n t h e Pro bate Re gis try a nobl e man s w ill b e q ue athi ng t o
l th e y s h o ld r
u
0
o
so
n
s
a
n
es
o
f
6
0
u
n
thr
y
g
r
n
iti
£
ti
e
e
u
n
e
u
ec e iv e G o v e rn
h is
H ans ard c i x 12 10
me nt pl ace s e x c e e ding that v al ue
’
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49
controversy lies betw een the partisans of small prop erties
nd small farms and the partisans of large prope rties and
a
large farms Two other conceivable combinations may be
dismi ssed from notice The division of large properties into
small farms is defended by no economist ; though the lesson
was not learned until that system of tenure had desolated
Ireland with famine
,
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.
“
W e s t w ar d
T he
h
w
l
h
i ck M art i n r ul e d
”
w il d s of C onne mara
r
D
e e
ous e e ss
,
the landlord s estate was vast enough t o allow of his p orter s
*
lodge bei ng built twenty fi v e miles from the hall door ; and
the tenants holdings were smaller than a F rench peasant s
The s e c ond arrange me nt that by which small properties are
combined into large farms though sometimes adopted in
parts of Franc e d can never become general The whole
spirit and feeling of small proprietors is opposed t o it while
the farmer would find it attended with economical d i fli
which I say it with hesi t ation seem t o have
c ult i e s
escaped the notice of Mr Mill Had that great writer lived
in the country he perhaps would not have revolutionised
English thought but he migh t have learned by sad
experience that contiguous fiel d s will command a monopoly
rent and that scattered fields can only be cultivated at a
rofi t le s s expenditure of the time of men and horses
p
If then we have small propert ies we must be content
with small farms ; if we have large properties we must have
large farms
A large farm means of course one that
is large as farms go though small in comparison with the
size of properties for no one supposes the possibility of
a great English landowner finding the time and the capital
necessary for the cultivation of a great E nglish estate
The results of the controversy that has raged between
the advocates of these two systems may perhaps be fairly
”
summarised now The English system of large estates
subdi vided into large farms a system which can exist only
under Primogeniture is the system by which the greater
ne t produce is realised by which wi t h equal expenditure of
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29 0
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'‘
l Mill s
’
P olitical E conomy
,
"
1 3 6 5 -6
.
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50
manual labour the greater profit is w on from the land ; and
by which a hierarchy of agricultural classes is created
rendering possible an order of capitalist farmers the equals
taste and culture The
of their landlords in manners
“
Continental or old Kentish system of small farms tilled
by the owners gives the greatest gross produce G reater profit
is won from the land but it is won by a more than propor
The magic of property as
t i onat e expenditure of labour
Arthur Young fo und in F rance turns sand to gold It has
raised t o fertility the blowing san d s of the Pays de W aas ;
through it the Lilliputian farms of Belgium have received a
Lilliputian minuteness of culture which has made their
country the garden now that it is no longer the cock
pit of Europe There is no day and no moment w hen
a man whose land is his banker cannot pay in
”
something to his own credit Even when endimanch é
Jacques Bonhomme will slip away from estaminet or
mass to keep an eye on the vines or the beetroot
And though political economists may care little for
an increase of produce that is eaten up by the men
who cause it the statesman looks at matters from a wider
”
view To the wealth of nations equal profi t s are of
equal value T o the stat esman seeki ng the weal of nations
the profit that remains after a vast population of busy
and contented toilers have satisfied their wants is a
thousand times more precious than an equal profit left by
agricultural skill and clever machinery after the pay
ment of competition wages to a minimum number of
half fed and improvide nt labourers Yet as we have seen
either F rance or England may contrast favourably with
the Irish system i nfand um re nov are d olore m under
which the nation obtained the smallest net as well as
the smallest gross produce and the cultivator besides being
improvident and ill fed always smar t ed under a sense of
injustice
The drawback of the peasant proprietor s position lies in
the very excess of the i ndustry to which it urges him The
material welfare wh ich he gains and the assiduity with which
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soil most refractory and most unp rofitable before modern
"
days of drai nage and grass farming set i n
Yet in the
England of the Tudors it was alre ady a proverb that
6
-
A
i re
s qu
l
Ca e s ,
l ai r d
and a
k nig
hc
ht
of
Wal e s
,
tr i e
y e oman of K e nt w i t h hi s ye arl y r e nt
W oul d b uy th e m up all t h r e e
A nd a
A
of
.
of
t h e nort
ou n
.
L amb ard j
in the sixteenth century perambulated Kent
and pronounced that the common people or yeomanry
”
is nowhere more free and j e lly than in this shire
But
after his time a new era commenced in the distribution
and therefore in the cultivation of the land Arthur Young
two hu ndred years afterwards found Kent one of the best
cultivated counties in England ; and Lavergne in our own
day pronounced it superior t o its neighbours Surrey and
Sussex although its soil is less favourable than theirs But
these testimonials of excellence show that the excellence was
decaying as i t s causes decayed In You ng s time there were
still nine thousand freeholders i n Kent; besides all the
estates that lay in mortmain
The example of other
counties and of the upper classes of Kent was supersedi ng
the law of gavelkind by a custom of Primogeniture whilst
irresistible economical causes were concentrating land i n the
hands of rich purch asers Hence it is not surprising that in
the N ew D omesday of our ow n day though the law of
gavelkind still holds the lands of Kent are fou nd not more
subdivided than those of other counties
If we i nclude the
mortmain lands they are even less subdivided ; for there are
in Kent 77 5 8 properties of upwards of an acre in size
which gives an average to each of about 12 25 3 acres whilst
the average in the rest of E ngland proper is only 116 7 or
in the rest of England and W ales about
London
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L av e rgne R ural E conomy of E ngl and p 19 9
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1 P e ramb ul ati on p 8
i R e s t e d I 3 01
T h e e xact di s prop ortion is s till more i n f av our of Ke nt for t h e ab o v e
av e rag e s are r e ck one d on t h e t otal ac re ag e s
s i nc e t h e ac r e a e ow ne d b y
p ro
L and ow ne rs
p ri e t ors w h o ow n l e ss than an acr e i s not dis ting uis h e d i n t h e
”
Re tur n
From t h e ne arness of K e nt t o London h ouse prope rty is s o fre que nt
th at this cl as s of propri e tors are more nume rous than i n t h e re s t of E ngland
i n t h e r atio of ab out s e v e n t o s i x
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being omitt ed in all the calculations ) Kent contains thirteen
mortmain estates of over 1000 acres each
The introduction of Primogeniture into Wales by Henry
VIII was a severe blow to the economical progress of the
Principality In a country whe re wealth was still purely
agricultural there was but a scanty portion of personalty
for each younger child ; the eldest had only an equally
scanty one wherewith to stock all his land An age of
poverty and discontent set in and Rebecca with her riotous
sons stalked through the land
Had not the sudden
de v elopement of her mineral resources in railroad days
opened a new field for the enterprise and industry of
Wales she would have sunk to the level of Ireland ; and
E nglish politicians would have discovered ad di tional evidence
of the innate impracticability of the Kelt
The E d i nbur gh R ev i e w (in an article attributed t o Mr
that if the system of
Mac Culloc h ) p rop h e s i e d in July
partible descents should be supported in its present vigour
for another half century la grand s nat i on will certainly be
the greatest pauper warren i n Europe and will along with
Ireland have the honour of furnishing hewers of wood and
drawers of water for all the other countries of the wo rld
A sufficient commentary on this prediction was furnished
forty eight years afterwards by the subscribers to the loan
which redeemed the soil of F rance from the hands of her
invaders In July 18 7 2 M Thie rs asked for
and received in reply the o ffer mainly though not entirely
from France of
But the conclusion which we may form on the respective
merits political or economic of large properties and of
small ones will throw little light on the modern aspects
of the law of Primogeniture It is quite true that there are
legal causes which tend to keep E nglish estates from
increasing in number ; and which whenever the number is
lesse ned by a large proprietor buying out a small one keep
it down t o its narrowed limit But in the face of the mi s ap
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" L 36 9
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54
prehensions and mis nomers of popular controversy it is of
the utmost importance to make it clear that of all these
restrictive causes the law of Primogeniture is beyond
comparison the leas t infl uential It is not a frequent
thi ng for the owner of real property to die intestate ; and
it is one of the rarest of casualties for the owner of a
large estate to die without havi ng made either a settle
ment or a will Very small therefore is the total exte nt
of land which in the course even of a generation desce nd s
u nder th e law of Intestacy (largest probably in proportion
if we may trust Parliamentary witnesses in the district s
where Primogeniture is
That concentration of
property which in our earlier feudal days certainly was
preserved and int ensified by the law of Primogeniture h as
for centuries depended for i ts support upon other branches
of our j urisprudence
It is by the laws of Entail and
Settlement that the e s t atb s of the great proprietors are
pres erved from alienation It is either under a Settlement
or under a W ill it i s as a remainderman or a devisee
and not as an heir that an eldest son usually receives
his right to his father s lan d s
These laws do the work
that once was done by the law of Primogeniture At the
same time it is true as matter of history that the mode
and purpose of their operation are due to habits o f
thought and feeling which the law of Primogeniture
created and which probably would be seriously weakened
by its abolition
It must also be remembered that besides these legal caus e s
which keep the number of landed proprietors from increasing
there are economical caus es at work to di mi nish that number
Ambition for the social di stinction attached t o the possession
of a landed estate raises the price of la rge properties and
”
“
the earth hunger of busy townspeople raises the price
of small ones until the value
of land grows ou t of all
re e rt i on t o its rental
Hence the yeoman finds that by
p p
retaining his few acres he locks up a capital whi ch if
turned into money would stock a farm of ten times the
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Firs t
Re p ort
of
R e al
P rop e rty C ommi s ione rs pp
s
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2 53, 2 7 1,
and
36 8
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00
size and would yield in profits fourfold what it now saves
in re nt There are laws of human action less sublime but
scarcely less unerring than those of the planetary move
men t s In a time when wages and prices are rising much
faster than agricultural profits it is not surprising that
every day sees some dignified estate rounde d off and some
s mall proprietor turned into a tenant farmer
Land owning
i s now a luxury not a livelihood
W e are j ustified then i n concluding that upon the
i nterests of the country at large the law of Primogeniture
exercises no appreciable infl uence at the present day Its
operation is so rare that we may dismiss from consideration
t h e s e national e ffects which once were so tremendous and
regard only the results which it produces in the limited
circle of family life
Tested on that small scale i t s effects
are t oo evident to leave much scope for controversy It is
as Lord Houghton calls it a little pin point of a law but
i t s prick is a keen one
In the vigorous days of feudalism the eldest son s
pre eminence was far more marked in his duties
than in his rights
It is as Mr Maine says not
likely that he had any advantage over his brethren and
”
kins folk i n occupations interests or i ndulgences
But
when his armed hand was no longer needed by either king
or kinsmen ; when the rent services came to be paid in gold
instead of i n blood ; and most of all when it was replaced
by an excise duty and cast upon the whole nation ; then his
privileged position assumed the shape of an i njustice In
the old Primogeniture neither the father nor the younger
sons had seen any real inequality of provision ; in the new
Primogeniture there was an i nequality whose grossness to
those sons at any rate was evident enough Young soldiers
and Templars were not like Be n Jons on s thresher
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W h o c an s tand
W i t h a h uge flail w atch i ng a h e ap of corn ;
A nd h ung ry d ar e s not tas t e t h e s mall e s t g rai n,
”
But f e e d s on mall ow s and s uch b i tt e r h e r bs
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,
Hence arose family animosities especially in times or coun
tries wh ere neither commercial nor c olonial life had been
,
56
u ffi ciently developed t o furnish a field for the energies of
f
the disinherited O n this subj ect the testimony of Cole ri d ge
is emphatic
The mournf ul alienation of brotherly love occasioned b y
th e law of Primogenitur e in noble families or rather by the
unnecessary distinctions engrafted thereon is still almost
proverbial on the Continent especially (as I happen t o know
from my own observation) in the South of E urope ; and
appears t o have been scarcely less common in our ow n
island be fore the Re volution of 16 8 8 if we may j udge from
the characte rs and sentiment s o frequent i n our elder
”
comedies
”
“
The firstborn says Locke d has not a sole or p eculiar
”
right by any law of G od and nature
O bservers of more
sophisticated or less sophisticated minds may couch the
sentiment in a di fferent phraseology The fact remains that
few parents could deliberate ly dispose of their property as
the E nglish law will dispose of it for them and that few
”
heirs could accept in its entirety the insolent prerogative
whic h the English law conf ers upon them without exciting
the surprise and reprobation of their neighbours A
father would be considered to disregard all th e re s p on
if he did what the law does The
s ib i li t i e s of parentage
di sposition that w as not unreasonable when land was
weighted t o the full with seignorial burdens becomes
fl agrant i njustice when land is of all forms of property
the most privileged and prized A law s o vi olently opposed
t o the moral sentiment of the nation remains in life only
because it remains in lethargy
The main reason for this disapprobation is evident T h e
disposition of the law disappoints the prevailing expecta
tion of the children The rul e of Primogeniture and the
power of testation have not eradicated the principle of a
Legitim Even amongst the upper classes of this cou ntry
the custom of Primogeniture has never been adopted in
that exclusive shape which it w e ars in law
The lands
which are settled on an eldes t son are always charged
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Lite rary
I 19 1.
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Of G
v rnme nt
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57
with portions for his brothers and sisters ; portions t oo
which are made t o carry inte rest at a higher rate than that
which the rental of the land returns
Among smaller proprietors the usual dispositions of
land are still further removed from Primogeniture
The
factory the farm the row of vi llas which the father has
made the investment of his capital are turned at his death
in t o a provision for all his children as impartially as the
money itself would have been
Thus the law of Intestacy
disposes of real estate in a mode utte rly di fferent from
the private di spositions that are made amongst any class of
Englishmen except indeed by incredibly undutiful fathers
A soli
or by the fathers of incredibly undutif ul families
c i t or instructed t o draw such a disposition would be bound ;
"
by professional honour to remonstrate with his client And
this disposition is of ap e c uli arly evil character I t ac c umulat e s
wealth upon the child who has already had most O pportu nity
of acquiring it and for his benefit not merely dimi nishes but
destroys the shares of those whose youth has less fitted
them or whose sex has disqualified them for provi di ng a
livelihood for themselves The evil of havi ng di fferent laws
of succession for land and for money reaches its height in
days like our ow n when either is so readily convertible into
the other A n estate is bought because it was goi ng at a
low p ri ce ; but if the precaution of devising it is forgotten
the younger children are left destitute in consequence
D istressi ng cases of this ki nd says Lord St L e onard s j
are continually happening
(In the Isle of Man this
danger was prevented by treating all purchased lands as
personalty ) D oes a man lose the moral obligation to provide
for his children by merely taking his money out of Consols
and putting it into bricks and mortar or by exchanging his
?
r
n
e
leasehold street for a f eehold o
It may be urged that
the brotherly a ffection of the eldest s on will prevent his
taking full advantage of the law But it must be remembered
that he will in many cases be an infant legally incompetent
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vid e nc e c it e d in H ans ard clii
H and y Book on P r op e rty L aw p 11
Of t h e
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58
waive even by his guardian s consent a tittle of hi s
rights
To say that the rule of absolute Primogeniture disappoints
the expectation of children implies of course that in the vast
maj ority of cases it disappoints the intention of th e
father
He knows indeed that he has made no will as
yet and he knows what m ust be the result if he do not
make one
Rarely indeed does he desire that result
He is firmly resolved t o make a will but as every solicitor
knows the association of a will with an approaching death
is so strong in most men s minds and so repellent that
the prudent purpose is deferred from day t o day and
often until t oo late
O r if the will is made but made
i nvalidly the result is as fatal ; and our Reports testify
”
that it is not o nly by the Country Schoolmasters whom
the N orthern Circuit used t o toast that inadequate forms
of execution have been prescribed to clients
It is quite
true that it is only from accident or carelessness that
these disappo i ntments arise But i n neither c ase are the
children t o blame for it There is no reason why the law
should turn the accident in t o a calamity or make the father s
c arelessness equivalent to his cruelty Moreover a man s
i ntestacy may arise from absolute legal incapacity t o make
a Will It is rather hard for the maj ority of his childre n to
be deprived of their fortunes merely because their father
died insane Where law operates it should operate for
j ustice not for inj ustice assure dly not for desolation
”
Law said Hamilton should govern accidents not lie at
”
their mercy
Its single aim should be t o do what the
mischance has left undone If the State makes a W ill for a
man it should try t o make the same W ill that he would
have made for himself If it cannot discover or cannot
approve his inte ntions it has only one alternative to try
to make the same W ill for him that he ought to have made
for himself
N either of these courses would lead it to
our
absolute Primogeniture
As the Real Property
Commissioners wisely re p orted
The distribution of
property which in the maj ority of cas es a prudent
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governs all English lands in the last quar t er of the nineteenth
century
By what arguments has the change been resisted s o
succ e ssfully
The name of argument can scarcely be bestowed on the
plea that Intestacy is t oo rare for the change t o be worth
making If the law is to operate even once it is wo rth
while to make its operation just Yet the Attorney and
Solicitor G eneral of 18 3 6 considered that plea sufficient
reason for rej ecting the prop osed reform Sir John Camp
”
bell declared that the bill would produce no effect and
”
Sir R M Rolfe that it wo ul d be perfectly nugatory
Sir
Robert Inglis however whi lst concurring in opposing the bill
took a remarkably different view of its potency declari ng
that the real question is whether the House of Lords is to be
”
overthrown or destroyed I
Th at a law of partible descent
wo uld operat e very rarely is quite true The stamp returns
show that even of personal p roperty t e n times as much
passes u nder wills as under intestacy But it mus t needs
operate ust as often as does the existing law to which the
oppone nts of change attach so much i mportance
Scarcely compatible w ith the last mentioned argument is
the one which probably has most e ffect in creating opposi
tion to a law of Part ible D escent the fear that it would
cut up properties too minutely It must be conceded by
the most zealous frie nds of the p e t i t e c ulture that there is a
point at which sub di vision ceases to be economically
b e ne fi c i al the point at which the p arc e llc becomes too
small t o occupy the whole time of its proprietor That
poi nt has been reached and pas sed in many inheritances in
F rance for the shares often do not exceed a rood in extent
and
F re nch proprietors are eking out a livelihood
by their wages as day lab oure rs rl It must also be admitted
that rare as intestacy is it is amongst the small proprietors
that it most frequently disproportionately frequently
occurs (W e have i ndeed insisted upon this fact as a main
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Han ard xxxi i
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For e ign offi
R e p ort ,
s
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ce
9 06
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Parliame ntary Pap e rs
,
18 7 0,
v ol.
1xvii
.
,
pp
.
59 -6 9
.
61
argument against the existi ng law ) It is therefore i nevi
table that here and there inheritances would be found in
which each coparcener s share would not exceed those which
Mr Watkins occasionally heard of in manors with a gavel
kind custom and whi ch di d not suffice to defray the fines
for the heir s admittance (But we need not fear that even
in the poorest and most prolific families subdivision would
go on to the same extent as in that Cingalese inheritance
"
whi ch Bishop Heber w as assured had been cut up into the one
hundred and fi ft y fourths of a single tree ) Kentish cases
are on record where one property was split up into one
hu ndred and forty fourths ; and another not worth more
than £3 00 was di v ided among twenty nine c op arc e ne rs j
It may however be confidently asserted that very minute
rights of inheritance woul d be far too rare to produce any
appreciable waste of the agricultural labour power of the
nation But without insisting upon this it is s ufli c i e nt to
remark that when s uc h rights arose they would hardly ever
be exercised by an actual partition but would almost always
be bought out by one of the sons Some of the children
will be t oo young to undertake the duties of a cultivating
prop rietor ; whilst most of the older ones will be settled in
other districts or in other calli ngs which they cannot pro
fitably quit Hence as experience abundantly shows in
countries of partible descent a custom may grow up by
which the eldest home keeping son buys out the rights of
the other children and preve nts actual partitio n; long before
the estate has reached the point at whi ch furth er subdivision
would be excessiv e }: Sometimes indeed this custom takes
such deep root that as in Wurtemburg and Silesia the
younger ch i ldren not o nly acquiesce in being bought out
but habitually conte nt themselves with a price considerably
below the market value of their legal share "
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A lis on, I I 5
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R e al Pr op e rty Commis s ione rs ap p p 2 70
“
an arrang e me nt i s us uall y e nte r e d i nto w h e re b y t h e e ld e s t
1: I n J e rs e y
s on p ur c has e s fro m h is c o h e ir s th e ir porti on o f t h e l and
and t h e e s tat e i s
th e re by k e pt toge the r ; and i t is re markab l e h o w not w iths tanding t he law
w hi c h divid es pr ope rty among c o h e irs e s tat e s h av e r e maine d i n t h e s ame
”
famil y for s e v e ral ge ne rations
L e Q ue s ne Cons t i t H is t of J ersey p 2 9 0
Fore ign Offi ce Re p ort of 18 70 pp 8 0 13 3
'‘
1
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Firs t R e port
of
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It has been urged that Primogeniture contributes mate
The energies of
ri ally to the increase of national wealth
the younger children it is said are stimulated by their
poverty ; and the stimulus is additionally heightened by the
spect acle of their elder brother s luxurious existence Those
who advance this argument can scarcely have remembered
the sex of the heir whom Primogeniture select s for the caree r
It remits to poverty the whole of the daughters
of luxury
though society allows them no honourable means of raisi ng
themselves to competence or station however keenly the
pressure of poverty may dispose them to the task
It
paralyses with riches a member of that sex to which ambition
and selects the very
and enterprise are not forbidden
member whose age and experie nce would best have fitted
him for the perilous pursui t The defenders of Pri moge ni
ture who lay so much stress on the advantage of deprivi ng
MI
and regard broad
a man of every adventitious as s i s t anc e
E nglish acres as a d amnosa hcc re d i tas may fairly be asked
why the eldest son too should not obtain this advantage
and surrender his lands to public uses or why the
advantage ne w conceded to the younger sons should not be
intensified by relieving them of the adventitious assistance
with which they are encumbered by the Statutes of D i s t ri
A man of energy and business habits may indeed
b ut i on
make his share of personalty a steppi ng sto ne to fortu ne ;
but the education and prej udices of younger sons of the
upper clas ses will seldom lead them t o turn their portio ns
i nto capital for merchandi se or manufacture Their pittance
secures them from want and serves t o eke out the meagre
incomes of the more aristocratic professions Glas gow and
Liverpool Manchester and Birmi ngh am may be searched
far and wide without fin di ng any great proprietor s younger
s on disti ngu i shed
as a manu facturer or eminent as a
merchant 0u nc s e nc anai llc p as
It h as bee n said that the hope of founding a family is the
main incentive which urges our leading capitalists to repeated
e nterprise W ere the prospect withdrawn from them of
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E d i nb urgh Rev iew xl
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,
36 3
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S ee
r ply
a e
i n t he
Wes t mins t er Rev ie w
,
v ol.
ii
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63
”
“
being able to make an eldest son the mere love of money
woul d soon cease t o
o r the mere excitement of busi ness
sustain them i n their anxious career Let the enterprises of
E ngland s merchant princes be remitted and she si nks to
her old state a bleak and sunless island in the N orth Sea
W e need not pause to consider whether the position of a
mere millionaire is really so unattractive as to be of itself no
stimulus to the ambitious spirits on Change F or granting to
the fu ll the force of the argument we are considering admitting
it conclusive as a j ustification of the law of Entails and of
Testation it has little value as a defence of Primogenitu re
N o capitalist that ever resolved t o found a family ever
dreamed of trusti ng to the law of Primogeniture to effect
his obj ect He taxes t o the utmost the skill of conveyancers
i n drawing assurances to perpetuate the c c lat of his name
D eclare such e fforts void prohibit gifts to the unbo rn
abolish W i lls entitle every child to an i ndefeas ible legi ti m
i n a word repeat the policy of the 17 th N ivose and the
ambition of the capitalist may really be in peril But it is
the height of absurdity to suppose that a man who has set
his heart on foun di ng a family and on maki ng a fortune for
that purpose w ill relax his e fforts merely because he learns
that if a particular contingency which depends solely on his
ow n will and which he has alway s resolved to prevent be
not prevented his hopes w i ll su ffer disappointment A man
inured to the hazards of Mark lane or the perils of Capel
court will scarcely be unnerved by so remote a chance as
this
A sounder obj ection is d rawn from the evil of cutting up
those estates which s upport titles of nobility Such estates
so very seldom come u nder the operation of the law of
Intestacy that the evil would be most rare But the inde
n
e
d
n
f
e
c
o
f
e
all
li
e long legislators is of too great importance
p
to the State to permit the abandonme nt of even its smallest
safegu ard W ere the law of Primogeniture to be wholly
abolished an exception should be mad e i n favour of the
heirs of Peers T hi s provision of a distinct law of i nherit
ance for noble classes marked many of the feudal systems of
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64
jurisprudence and commended itself t o the mind of N apoleon
He qualified the equal divisions which the Revolution had
prescribed by conceding t o senators the right of creati ng
maj orat s for their eldest sons
A further poi nt remai ns to be considered whether the
abolition of the law o f Primogeniture would caus e the decay
O f the c us t om of P ri moge ni ture
The direct Operation of
that law i s so rare that the warmth with which all attempts
to alter it have been made and have been met show that the
d ebaters felt it had some remoter e ffect more potent than
those U pon which they avowedly laid stress At heart the
assailants hoped and the defenders feared that any change
in the law of Inte stacy would be followed by a correspondi ng
change in me n s cus t oms of d isposition It may appear
unlikely that an ancient and deeply rooted prepossession
should be undermined b y the passing of a statute which in
no way deals with it and which will operate upo n only a
minute fraction of the total number of the landed estates O f
the country and upon an extremely mi nute fractio n of their
total exte nt But the power of law in moulding public
O pinion is t e e constant not t o operate even here T o believe
to imitate and to obey are instinctive impulses in the
human mi nd
M e li or e s t d i sp os i t i o legi s quam homi ni s is
not a mere pedant s crotchet but the natural presumption
of all citizens T h ey will assuredly copy sooner or later
closely or loosely whatever pri nciple they see the State
adopt and honour Even the seemi ng exceptions confirm this
law of history If legal establishment has failed to make
Presbyterianism aristocratic in Scotland or t o make Kentish
s e t t le rs and testators adopt the principle of partibility it is
not because law does not mould opi nion It is because it
moulds it so irresistibly that all local rules are powerless
agai nst the infl ue nce of even an extraneous system if it be
‘
felt to represent the State s collective will
F rom the day when Je fferson carried the repeal of the
Virginian law of Primogeniture the principle of partibi lity
took root in American j urispru dence It prevails now in
every State and Territory of the Union S o universally
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has public Opinion even amongst Europ ean immigrants been
moulded by the present law that all p rivate dispositions are
made in accordance with it ; and a parent would be reprobated
by his neighbours if he enriched one child at the expense of
the othe rs
The re is only one family in the State of N ew
York which has had the boldness to disregard this popular
“I
It would however be a much harder task to
fe e li ng
change the current of opinion on this subj ect in aristocratic
E ngland Even those who most strongly approve of the
e ffects which the law of Primogeniture has had in moulding
our private settlements need not desire its preservation for
the mere sake of preserving these e ffects
Practices so
inveterate will not be undermined by a collateral innovation
so sl i ght if they really po s sess one half of the political and
social advantages which their admirers claim for them
Some change in the law we may pronounce to be i nevitable
The remarkable survey of the land tenures of E urop e l
which was made a few years ago by our di plomatic age nts
at the bidding of the F o reign O fli c e shows vivi dly the utte r
opposition of the E nglish law of inheritance to the ge ne ral
j udgment of civilised manki nd
S e c urus ju d i c at orbi s
Here and there by extraordi nary local customs
t e rrar um
as in parts of Silesia and D armstadt or by extraordinary
i
v i legi a enacted for favoured i nd ividuals as in Austria
r
p
Primogeniture of the English type may be found li ngering
But an iceberg i n the G ulf
on the European continent
Stream is scarcely rarer or more durable The Consular
reports show that the system of equal division is as popular
as it is general N owhere is any desire expressed for its
abandonment Even the most questionable of its res ul ts
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Mr B e re s ford H op e H ans ard clii 1146 S e e al s o Brough am s
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“
S t at e me n e d 18 45 vi 5 9 ;and Was h b ur n s A me ri c an L aw of R e al P r op e rty
Bk 3 ch 2 It i s amus i ng afte r t h e l ap s e of mor e than t w o h undr e d y e ars t o
r e ad t h e li ne s i n w hi ch Old Tay l or i n h i s w ork on G av e lki nd (p
re c om
me nd e d that c us t om t o t h e E nglis h pl antations i n A me ri ca and b ad e th e m
“
e x ami ne o f w h at avai l i n pr ob ab ilit y and p oli cy it might b e t o th e m
and i n
p artic ul ar t o that mos t famous pl antation of V irgi nia t h e mos t f e rtil and mos t
c ons onant t o E nglis h bodie s of any w hate ve r and w ill pr ove of gr e ate s t us e i n
”
ti me t o t h e E nglis h nation
'
1 Parliame nt ary Pap e rs of 18 70 v ol l x vii S e e als o t h os e of 18 7 1 and 18 72
S p e e ch
of
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the more e llemc nt of estates is reckoned usually a national
advantage
F orty eight years a o G ans completing his survey of the
laws of I nheri t ance in all ages and nations marked with
astonishment the unique survival of medi aeval j urisprude nce
i n England
He predicted the speedy repeal of the Corn
Laws and in its train the abolition of that system of i nh e
ri t anc e
whose rigid feudal organisation is out of harmo ny
W
with our time and its t e nd e nc i e s
The prophecy was
sagacious The Corn Laws have passed away and our law
of descent has bee n stripped of many of its medi aeval peen
li ari t i e s
Half blood kinsmen and lineal ancestors have
e ntered into their rights ; but the younger children s claim
of ki ndred is not yet allowed
Eight times since has that claim been urged within the
walls of Parliament I n 18 3 6 + the debate which commenced
the new ca mpaign took place on the Landed Property of
Intestates Bill by which Mr Ewart proposed to make
undevised real estate vest like perso nalty in the exec utor
or administrator and be distri b utable by him amo ng the
next of k i n Leave to bri ng it i n was refused by 45 to 2 9
His motio n was re newed in the following April ; and
defeated by 5 4 to 2 1 F ou rteen years elapsed and the
struggle was revived by Mr Locke King In 18 5 0 he intro
d uc e d the subj ect i n one clause of a motion on the transfer
of Landed Prop e rt y w h i c h was defeate d by 110to 5 2 I n 18 5 4
he p roposed a Parliamentary inqui ry i nto the law of descent
a p roposal which in the somewhat premature j udgment of
Montalembert neither found an echo nor left a trace
His
Succession to Real Estate Bill w as rej ected by 203 to
”
I n 18 5 9 the second readi ng of his Real Estate Intestacy Bill
was lost by 2 7 1 votes against
In 18 6 6 he reintroduced
‘
the B i ll and was defeated by 2 8 1 votes agai nst 8 4 ;ll but
w as more successful i n 18 6 9 whe n he obtained a maj ority
M
of 2 5 havi ng 16 9 ayes against the 144 noes of his Op p one nt s
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D as
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H n rd xxxii 8 9 8
llH an ard c lii 1157
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v ol.
H an ard xxx vii 7 3 4
ll Han ard clxxx iii 19 75
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Han ard cxxxi
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H ans ard
c x cvii
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18 6 3
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68
and be relieved from the di fficulty of tracing out all
the members of a family and the expense of securing the
concurrence of them all in the deed This simple and logical
plan introduces no new rule but merely relieves our code
from the complexity of a double system of Succession Law
making it deal with freehold lands j ust as it has dealt for
six hundred years past with leas ehold ones
Yet as
we have seen it is doubtful whether so long as our
political constitution remains based upon the di stinctio n
between the Second and Third Estates a corresponding
di stinction must not also be preserved in our system of
inheritance Let it be freely admitted that there is no
reason in the nature of realty why it should not b e made t o
descend by the rules which govern the distribution of
personalty ; yet we would urge that in any attempt t o
effect that desirable re form there is an absolute political
necessity for exempting from distribution all estates which
otherwise would descend un severed t o support the rank and
independence O f a peer of England
It may further be admitted that in the partible descent of
the lands of commoners grave social and economical ends
would be furthered with little d i sadvantage t o the younger
children and that the probable preference of the deceased
father would be consulted if statutory provision were
made for the eldest son t o have the option of purchasing the
real estate at its market value Such purchases have been
found frequent wherever a system of partition is in force
In Jersey local institutions exist which facilitate them
there being in e ach parish six official appraisers permanently
appointed t o effect all p artage s In Wurtemburg it is the
duty of the S c hu lthe i s s or parish magistrate to assess the
a
l
price at which the eldest son may redeem the land
A third p rovision may be suggested that to prevent
excessive morc e lleme nt no estate should be actually par
t i t i one d if it were so small that the purparty of each child
would amount only t o (say) two acres or less It might be
made the duty of the executor t o sell such an estate by
v e
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Fore ign Offi ce
Re p ort
of
18 7 0, ii
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69
public auction unless it were redeemed from him by one of
the children themselves This provision would satisfy the
fears of many of the opponents of the proposed re form ; but
the experience of English leaseholders as well as of Jersey
pe asants seems to show that the same end may be s uffi
c i e nt ly secured by the common sense of the coparceners
themselves I n F rance however public opinion ne w sets
i n favour of a law of this kind ; and in Belgium such a law
exists awarding all minute inheritances t o the eldest son
and charging him with p ecuniary portions for the other
"
children
It may indeed without grudging the blessing which old
”
Plowden invoked upon the amending hand be questioned
whether the Parliamentary e fforts that we have enumerated
were not made upon t oo sweeping a plan Between the
artificial inj ustice of the present Primogeniture and the
theoretical simplicity of the proposed reform there lies a
mean ; a mean which has the advantage O f satisfying the
chief requisite of a good I ntestacy law for it represents th e
prevai ling practice of men who do not di e intestate Akin
in its relative estimate of children s claims to that pri nciple
of a Pré ciput which Obtained such general acceptance in
me di ae val times it e ffects the apportionment in a manne r
more in harmony with the varied requi rements of children
in an age of busy commercial ente rprise and also with the
exigencies of mo dern conveyancing W e refer of course to
the everyday plan of giving the whole estate t o the eldes t
son but charging it with pecuniary portions in favour of
the younger children This course familiar to every c on
v e anc e r h as
once
already
within
these
kingdoms
been
y
embo di ed in legislation It was established for the lands of
conf orming Papists by that statute of 17 04 which has
already been cited It is enacted by 2 Anne c 6 s 10
Irish
that
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t s on s h all b e i nt i tule d as afor e said
by r e as on of hi s b e ing a Prot es tant s uch r e al e s tate s h all b e c h ar ge abl e
and ch ar g e d w i t h s uch s um and s ums of mone y for t h e mai nt e nanc e
and p ort i ons of t h e d augh t e rs and y ounge r s ons of s uch Pap i s t as
I n e v e r y as e w
h
r
ch ld
e e su
e
es
,
I b id p
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F
2
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128
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70
t he
and
Court
s
of
h al l
p o rt i ons
C
be
not
to
h an ry h al l di r
r ai s e d for th e m,
rais e d and p aid acc or d i ng t o s uch di r e c ti ons , s uch
”
e x c e e d t h e v al ue of one t h i r d part of s uch e s tat e
s
ce
e
ct
and
pp oi nt
a
to b e
-
.
The Primogeniture O f feudal F rance was except in
N ormandy usually quali fied in this way Similarly in Kent ;
the copyholds of the manor of Ble h am descend t o the eldest
son ; but the Homagers assess the value of the land and the
heir must p ay each younger son the price of his aliquot
,
.
,
,
I6
s h are ?
N o stronger p roof of the safety of such a rule c an be given
than the fact that it is sanctioned by the authority of the most
strenuous and scientific of the defenders of Pri mogeniture
large properties and entails— the late Mr Mc Culloc h He
fully admi t s that
,
d p d i n dis tr i b ut i ng t h e p r op e rty
int e s tat e w h i ch e x p e ri e nc e h as s h ow n as mos t
o f t h os e w h o d i e
W h e n, t h e r e for e t h e r e i s a
ad v antag e ous i n t h e mak i ng of w i ll s
l and e d e s tate i t s h oul d go t o t h e e l d es t s on, b e i ng h ow e v e r, b ur d e ne d
” '
w i t h a r e as onabl e p r o v i s i on for t h e ot h e r ch i l d r e n 1
“
me rul e
.
.
,
T he
sa
s
h ul d
o
be
a o te
,
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,
,
,
.
This mode of reform h as the fu rther merit of preserving
the mother s inheritance to her chil dren and not making the
widower absolute owner as the law of Personalty would do
It is a question of detail lying beyond the limits of the
present essay whether the Legislature should fix the exact
proportion which the younger childrens portions must b ear
t o the whole value of the land or should fix only the maxi
mum and minimum proportions leaving the actual propor
tion in each c ase t o be settled by the High Court of Justice
or
in
successions
of small rateable value by the County
(
Court j udge) upon consideration as well O f the respective
amoun t s of the personal and the real estate as O f the public
or merely private position t o which the eldest son had suc
The necessity of supporting a Peerage would of
c eeded
course form a weighty reason for lessening the charges to
be imposed on the land whilst a Primogeniture of this
qualified character might well be allowed to supersede the
present sys t em of female coparcenery when a Peerage
descends to one of several daughters
’
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H as te d,
vii i
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97
1 P oli t i c al E c onomy, e d 18 43, p 26 7
'
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.
71
And ne w to bring t o a c lOs e our task W e have d es cribe d
an early age in which Primoge ni ture was unknown in Eng
land W e have des cribed a further age in whi ch the pressure
of new social necessities introduced it with so steady and
resistless an advance
that it became at last a distinctive
peculiarity of England
W e have found that those us ees
sities have disappeared (as the O bj ects which Primogeniture
was intended t o secure have ceas ed to need i t s aid) and that
Primogeniture its elf bids fair t o follow them ere long
F inally we have ventured t o suggest the outlines of a law
more in harmony wi th modern life T emp ora mut ant w
nos c t mut amur i n i lbis
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A P PE ND I"
N OT E A
P
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8
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”
w orth p art i ti on
T oo s c ant y t o be
.
.
.
c e w h i ch c ons id e rat ion of t he i of e st at s may h av
i n d t r mini ng t h e law of i nh e r i t anc i s i v id l y illust rat e d b y t h
c u t m f me man rs w h e r e t he l and i s gav e lk ind if i t e x c e d a
t
h
R
o rt
f
r
s
F
E
n
rt
i
c
l
r
v
l
i
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R al Pr p rt y C mmi s i one r p
T h e i mp or t an
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e
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.
N OT E B
.
P
.
16
T h e L aw s
.
H e nry I
f
o
”
.
rr one ous r e adi ng w h i ch h as t h us s e ri ous l y ob s c ur e d t h e
h i s t ory of E ngl i s h Pr i moge ni tur e , w as p rob abl y d e r i v e d b y H al e fr om
H e nr y s s up
L amb ar d s A rc h ai onomi a (Cambridge , 16 44 ; p
”
L aw s are t h e re r e p r i nt e d f r om t h e E x ch e que r MS , w i t h t h e
p os e d
”
“
r e adi ng Pr i mum for Pri me
T he
e
’
’
.
,
.
NOT E C
P
T he
w ho
.
s hall
t ak e th e
”
f tre e
S ome r e ad e r s may p r op os e t o e x p l ai n t h e s e p r e fe r e nc e s s h ow n t o a
p art i cul ar s on i n p art it i v e d e s c e nt s up on a di ffe r e nt p r i nc i p l e and
i nt e r p r e t t h e m b y S i r H e nry Mai ne s O r i e nt al i ll us tr at i ons (E ar l y
as b e i ng me r e l y a r e w ar d gi v e n t o t h at s on for
I ns t i t ut i ons p
S uch a p r i nc i p l e
h i s i mp art i al di s tr i b ut i on of t h e fami l y p atr i mony
“
”
did i n fac t e s t abl i s h a r e c onnai ss anc e d e p r i moge ni t ur e i n t h e
c onj e e
J e r s e y law of p e r s onal ty ; and L e G e yt s e e i ng t h i s (I
t ure d t h at t h e s ame mot i v e migh t t o a l i mi t e d e x t e nt h av e c ont r i
b ut e d t o t h e e s t ab l i s h me nt of t h e e l d e s t s on s p r é c i p ut i n r e al t y
But t h at e x p l anat i on i s , I v e nt ur e t o t h ink s uffi c i e nt l y r e fut e d b y t h e
law of N o r mand y, und e r w h i ch (T e rr i e n b ook v i ch ap 3 ) t h e y ounge s t
s on i s t h e app o rt i one r of t h e
l ots y e t i t i s t o t he e l d e s t t h at t h e
mans i on h ous e i s gi v e n
.
17
.
s on
roo
.
,
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,
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,
.
.
,
,
.
,
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,
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.
,
,
.
.
,
,
.
N OT E D
P
T h e law
i nfl ue nc e d
Of
th e
cy
Int e s t a
e
c
,
so
mi c al
ono
.
51
.
.
r ar e l y op e rat i v e i n E ngl and h as l arge l y
c ondi t i on of Je r se y For i n th at i s l and
,
.
ii
w
A P PE N D I "
i ll s
by
of
land
d e sc e nt
,
.
n k no w n t i ll 18 5 1 a nd as
a re s t i ll o nl y p art ly l ega l i s e d
r
we e u
the y
re gard s
la nd s a c quir e d
.
NOT E E
.
P 57
.
Mr N assau S e n i o r i s e mp h a t i c
I h a v e ma d e
t housand s of w i lls and s e tt l eme n ts , and n ot one i n a h und re d w as
”
b as e d o n any p r i n c i p l e b ut th at of e qua l p a r t i t i o n
(Fort ni gh t ly
T he
t s timo ny
e
“
of
.
.
.
Re v ie w, O c t
,
18 7 7 , p
.
€
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