1902 Encyclopedia > Primogeniture


PRIMOGENITURE. The term "primogeniture" is used to signify the preference in inheritance which is given by law, custom, or usage to the eldest son and his issue, or in exceptional cases to the line of the eldest daughter. The practice prevailed under the feudal codes throughout all the Western countries. It is now almost entirely con-fined to the United Kingdom, having been abolished (except in the succession to the crown) by the various civil codes which have superseded feudalism on the Continent, and having been universally rejected in the United States of America as being contrary to the spirit of their institu-tions. The system has of late years been persistently attacked in Great Britain, chiefly on the ground of hard-ship in cases of intestacy wdiere the property is small; but the rule was found to operate so successfully in former times towards keeping large properties together that it seems likely to be still maintained by law; and even if abolished as a rule of law it would most probably be main-tained in full vigour as a habit or rule of practice.

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

It wall be seen that the English law of inheritance creates a double preference, subject to the exceptions already mentioned, in favour of the male over the female and of the firstborn among the males. This necessitates the rule of representation by which the issue of children are regarded as standing in the places of their parents. This is called "representative primogeniture." The rule appears to have been firmly established in England during the reign of Henry III., though its application was favoured as early as the 12th century throughout the numerous con-tests between brothers claiming by proximity of blood and their nephews claiming by representation, as in the case of King John and his nephew Prince Arthur (Glanville, vii. c. 3; Bracton, De Legibus, ii. c. 30). We must now describe some of those ancient usages in which the origin of primogeniture is to be sought.
In addition to the rule of eldership as applied to inheritances of land there are traces of a multitude of customs which applied a similar rule to certain classes of " principals " or heirlooms, such as the best bed or piece of furniture, or horse and cart, and the like, which descended to the eldest son; and by a similar rule of the common law the ancient jewels of the crown are heirlooms which descend to the successor according to the rule of primo-geniture. In the district of Archenfield near the Welsh border the house and lands were divided between the sons on their father's death, but certain "principals" passed to the eldest as heirlooms, such as the best table and bed, " all which the men of Archenfield retained as derived to them from great antiquity, even before the Norman Con-quest" (Quo Warranto Roll, 20 Edw. I., " Irchinfield ").

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

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

Instances of this kind are found among the rural customs of England and Normandy, which serve to indicate the source of one part at least of the English system of primogeniture. The rights of the eldest, however, have been collected from many quarters. Sir Henry Maine has traced the modern form of this system to the growth of the power of the chieftain and its development in feudal times. The mediaeval jurists are responsible for many exaggerations of the principle of sole succession to rights of dominion. But it is at any rate important to observe that there were Teutonic customs giving a benefit of eldership before the feudal system was invented, which appear to have much less connexion with the power of the patriarch or chieftain than with the sentiment that gave the father's house to the eldest son under the Athenian law or secured to him . a larger set of rights under the Laws of Manu (Demosth., Pro Phorm., 34; Coulanges, Cité Antique, c. 6). It should also be remembered that at least one tribe of Germans was accustomed in the days of Tacitus to allow the father's war-horse to descend as an heirloom or "principal" to the eldest son (Germ., cc. 18, 20, 32), and that the strict rule of primogeniture appears to have existed in Scandinavia from the most ancient times. To the English in-stances already mentioned may be added a passage from Bede's life of St Benedict which shows that some sub-stantial birthright was reserved in his time for the eldest son, when a patrimony had to be divided according to the
Northumbrian laws, " Quomodo terreni parentes, quern primum fuderint, eum principium liberorum suorum cog-noscere et caeteris praeferendum ducere soient" (Bede, Vit. Bened., s. 11). This may refer to some system of double portions, like the Jewish rule as to " birthright " (Deut. xxi. 15, 16), or it jnay denote a preference in parti-tion which secured the dwelling-house or principal chattels to " the first-fruits of the family." A passage from Glan-ville, which is applicable to England and Scotland in the 12th century, shows that in the case of a rustic holding the custom of the district determined whether it should be divided among all the sons or reserved for the eldest or youngest. " If he were a free sokeman, the inheritance in that case will be divided among all the sons according to their number in equal shares, if the holding was partible by ancient custom, the chief messuage being, however, reserved for the first-born son in honour of his seniority, but on the terms of his making compensation to his brothers from the rest of his property. But if it was not anciently partible, then by the custom of some places the first-born son will take the whole inheritance, but by other customs the youngest son is the heir " (Glanville, vii. c. 3). In the time of Bracton, a century later, the presumption that primogeniture was an exceptional rule had been reversed, and special proof was required in freehold lands of a custom to exclude the eldest. He still speaks, however, of customs in favour of the eldest or youngest son in the case of the " villein-socage " holdings, which afterwards developed into copyholds. "When a free sokeman dies leaving several heirs to share, if the inheritance is partible from ancient times, they shall all have their equal shares ; and if there is only one messuage that shall remain entire for the eldest, but so that the others shall have up to its value out of the common stock. But if the inheritance has not been divided from ancient times then it shall remain to the eldest. But if it be villein-socage then the custom of the place is to be observed, for it is the usage in some parts for the youngest to be preferred to the eldest, or the contrary " (De Leg., ii. c. 76). The ancient rule of inheritance among socage tenants in Scotland was the same as that described by Glanville.

These customs of "rural primogeniture" can be traced, as we have seen, in some parts of the Continent, but their existence is rarely to be distinguished where the influence of the Roman law prevailed in the barbarian kingdoms, as in Italy, Spain, and Provence. In Normandy and Picardy, however, these usages long remained in an exceptionally vigorous form,—a fact which may be due to the Scandinavian origin of the Normans, or perhaps, as Richebourg suggested in his note on the Coutume de Caux, the custom may have lasted down as a tradition from Gaulish times. The laws of the Channel Islands still preserve a special benefit for the eldest son ; but the Coutûmier Général affords several examples of a more ample birthright wdrich can hardly be attributed to any feudal influence. By the custom of Normandy "the eldest son in right of his elder-ship might take and choose as a préciput such fief or terre noble as he pleased ; and if there were but one manoir roturier on the land the eldest before the division might declare that he retained it with court and garden, making recompense to his younger brothers" (Coutume de Nor-mandie, 337, 356). " L'aisné faisant partage . . . peut retenir par précipu le lieu chevels . . . anciennement appelé hébergement, soit en ville ou en champs, de quelque estendue qu'il soit" ("Usage de Bayeux," Cout. Gén., iv. 77, 78, 94). The usage of the district of Caux, on the frontier of Picardy, was even more favourable to the eldest son : " Demeurant le manoir et pourpris en son intégrité au profit de l'aisné sans qu'il en puisse être disposé à son préjudice, ny qu'il soit tenu en faire récompense ausdits puisnés " (" Suce. Bailliage de Caux," ibid., 74).

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

"It pertains to our prerogative to abolish such laws and customs as diminish instead of increasing the strength of the kingdom, or at least to change them by our special favour in the case of our deserving and faithful followers ; and since it has often happened by the Kentish custom that lands, which when undivided in certain hands are quite sufficient for the service of the state and the maintenance of many, are afterwards divided and broken up among co-heirs into so many parts and particles that no one portion suffices even for its owner's maintenance, we therefore grant to J. de Cobham that all the gavelkind lands and tenements which he now holds in fee simple shall descend to his eldest son or other heir at common law in the same way as his estates held by serjeanty or knight-service."
A similar change of tenure was effected by Acts of parliament for many estates in Kent in 11 Hen. VII., 15 Hen. VIII., 31 Hen. VIII., 2 and 3 Edw. VI., 1 Eliz., 8 Eliz., and 21 James I., and primogeniture was introduced in the same way into the soke of Oswaldbeck in Notting-hamshire in 32 Hen. VIII. and into the city of Exeter by the Act of 23 Eliz. c. 12. The customary descent of copyhold lands (where primogeniture had not been estab-lished in ancient times by the ordinances of the lords or by an application of the current presumption) has been changed in a great number of cases by other private Acts of parliament or has been destroyed by enfranchisement. The Welsh custom of partition was altered in some respects, especially by forbidding the inheritance of bastards, by the Statute of Wales passed in the 12th year of Edward I.; the custom as modified was confirmed when the prin-cipality was united in 27 Hen. VIII. to the kingdom of England, but it was soon afterwards enacted by the Act 34 and 35 Hen. VIII. c. 26 that freehold lands in Wales should thenceforth be " holden as English tenure to all intents according to the common laws of this realm of England, and not be partible amongst heirs-male after the custom of gavelkind as heretofore in divers parts of Wales was used and accustomed.'' The change in the Irish customs was carried out in a different way. There is evidence that before the adoption of the English law several systems of customary inheritance were known in Ireland.

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

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

This is obviously the description of a joint family similar to those which have been found in the Scottish Highlands, in France, in the Slavonic countries, and in India, and, as it would seem, the various modes and periods of redistributing such joint possessions are merely matters of detail and convenience. It would be of greater importance to our subject to know whether any special property was reserved for one of the dead man's sons, as in the case of the Frisian " theel-lands." It was resolved in the great case of tanistry in the third year of James I. that this Irish " custom of gavelkind " was void in law as being unreason-able and as being " a mere personal custom " not binding the descent of the inheritance, " and therefore all the lands in these Irish territories were adjudged to be descendible according to the course of the common law, notwithstanding the Irish usage." By one of the penal statutes against Roman Catholics in Ireland (2 Anne c. 6), the usage of partibility was to some extent revived, it being enacted that the lands of Roman Catholics should be divided among all the sons "as in gavelkind," unless the heir should be a Protestant; but this harsh law was fortunately repealed by the Irish Act of 18 Geo. III. c. 49.

The remote origin of all these ancient forms of primogeniture may probably be traced to a system of family religion that prevailed among the tribes from which the Aryan nations have descended. We are told in the Laws of Manu that the eldest son had his very being for the purpose of accomplishing the rites of the family religion, of offering the funeral cake, and of providing the repasts for the spirits of the dead ancestors. " The right of pro-nouncing the prayers belongs to him who came into the world the first. À man must regard his elder brother as equal to his father. By the eldest at the moment of his birth the father discharges his debt to his own progenitors; the eldest son ought therefore before partition to manage the whole of the patrimony " (Laws of Manu, ix. 105, 126; Coulanges, La Cité Antique, c. 6, "La Droit d'Aînesse"), This view seems to account for the widespread usage that the eldest son should keep the house, or hearthplace, or the parents' furniture as part of his share of the inheritance. It is said that among the Hindus the right' to inherit a dead man's property is exactly coextensive with the duty of performing his obsequies, and we are told that in ancient Rome an inheritance could not be distributed under a will " without a strict apportionment of the expenses of these ceremonies among the different co-heirs" (Maine, Anc. Law, 191). Some support is also given to this theory by the custom which is said to have prevailed in Norway by which particular lands were set apart for funeral expenses, and if a man had no kinsman to give him proper burial he might leave his property as " brande-erbe "or " burning-land" as an endowment for burial, and the friend who accepted the duty was allowed to keep the property as " odal land " or privileged family inheritance (Robertson, Early Kings, ii. 323). Numerous other illustrations might be given from the analogous customs in which the youngest son is preferred. There seems to be no reason why the eldest should be preferred by one nation and the youngest by another; but something may perhaps be due to the acci-dent that the one set of tribes was civilized enough to have fixed family habitations, and the other may have lived in a nomad fashion, so that the youngest would be most likely to remain in the parents' tent and to be ready to perform the duties of the hearthplace. Sir Henry Maine draws a distinction between the archaic customs of the tribe and that strict form of primogeniture which he has traced to the power of the chieftain. Taking primogeniture in the sense of an exclusive succession of the eldest son to pro-perty, he finds no sign of its existence before the destruction of the Roman empire by the barbarians. "Even when the Teutonic races spread over western Europe they did not bring with them primogeniture as their ordinary rule of succession." He considers the " birthright" given to the eldest in the instances which have been mentioned to be in the nature of a reward or a security for impartial distribution {EarlyHist. Inst., 197, 198). "Primogeniture, as we know it in our law, had rather a political than a civil origin, and comes from the authority of the feudal lord and probably from that of the tribal chief; but here and there on the Continent there are traces of it as a civil institution, and in such cases the succession of the eldest son does not exclude provision for the younger sons by what are called appanages. The evidence of ancient law and usage would, however, seem to show that it was usually the youngest son who remained at home with his father to serve him through life and succeed to his remaining property at his death " (Early Law and Custom, p. 260).

As regards the political origin of a great part of the English system of primogeniture a distinction should be made between royal and feudal successions. The devolution of the crown in European countries has usually been regulated by some kind of primogeniture, based partly on the rules which have governed private successions, partly on the indivisible character of the empire as it survived into modern times, and partly again on that " law of the sword" or rule of public policy which forbids the dis-integration of the state. It is possible also that the Irish system of tanistry contained some of the elements of this method of royal succession. The custom was described by Spenser in his View of the State of Ireland shortly before the abolition of the Brehon law in the reign of James I. as follows : " It is a custom among all the Irish that, pre-sently after the death of any of their chief lords or captains, they do presently assemble themselves ... to choose another in his stead, where they do nominate and elect for the most part not the eldest son nor any of the children of the lord deceased, but the next to him of blood that is eldest and worthiest, as commonly the next brother, if he have any, or the next cousin and so forth, as any is elder in that kindred or sept, and then next to him they choose the next of the blood to be tanaist, who shall succeed him in the said captaincy if he live thereunto." This system may be described as the election of an elder to be head of the sept (like the analogous election of a patriarchal " house-father" in a joint family), with an additional choice of an elder in reversion, to avoid dis-putes as to succession in times of war. A similar rule may have, obtained among the Teutonic tribes (Maine, Early Hist. Inst., 202) ; as the smaller chiefs sank into-the position of nobles and were succeeded by their eldest sons (for reasons connected with the priestly character of the king) in the possession of their offices and demesnes,, a rule of the same kind might grow up with regard to the king or ruling chieftain, by which the eldest son would get not only his private demesne but also that " portion of land attached to the seignory or chiefry which went without partition to the tanaist." In this way a principle of inheritance might be formed " which first of all extended from the demesne to all the estates of the holder of the seignory, however acquired, and ultimately deter-mined the law of succession for the privileged classes throughout feudalized Europe" (ibid., 204, 208). This part of the subject is confessedly very obscure ; and it must not be forgotten that there were other and stranger modes of succession to chieftainships in Ireland and Scotland, which appear to have been unconnected with any such rules of primogeniture (Girald. Cambr., Top. Hibern., iiL 25 ; Ware, Ant. Hib., ii. 64 ; Ailred's Chron., ed. Twysden, 348; Robertson, Early Kings, i. 36). Bede has left us a description of the rule among the Picts. " It was the custom in Pictland," as the saying went, that the kingdom should come from women rather than from men. (Com-pare the similar customs among the ancient Spartans, Lycians, and Iberians in M'Lennan's Studies, 101, 145.) The dignity never went from father to son, but when the king died the crown went to his next brother, or in default to his sister's son, or in any event to the nearest male relation claiming through a female and on the female side. The list of kings contains no instance of a son bearing his father's name, or of the same name belonging to both father and mother; and the only fathers of kings of whom any account has survived are certainly known to have been foreigners, the one being a prince of Strathclyde and the other a grandson of the king of Northumbria. One and the same rule of primogeniture has been applied in England to royal and to private estates, with the exception as to the succession of the eldest daughter which has already been mentioned. The system varied greatly in the Conti-nental countries according to the circumstances of each case. In France the crown was regarded as a partible in-heritance under the first two dynasties. At the beginning of the 11th century primogeniture had become the rule as to fiefs, offices, and dignities, and partly no doubt from ana-logy and partly for reasons of public policy the crown was brought within the same rule under the house of Capet (Montesquieu, Esprit des Lois, xxxi. 32 ; Kenny, Law of Primogeniture in England, 10). But in this case there was a singular modification, known as the " Salic law" or " Salic rule " (as if it had been derived from the customs of the Salian Franks), by which the succession wras event-ually limited to males claiming through males. The origin of this law has been found in the fact that " the kings sprung from Hugh Capet succeeded one another, son to father, or brother to brother, for more than 300 years" previously to the disputes which arose in the 14th century as to the succession of an heir claiming through a female (Maine, Early Law and Custom, 154). The rule was adopted because it corresponded to the facts which had existed; it was extended because it suited the circumstances of those states in which the sovereign had a large authority; in constitutional countries the rule has been considered to be against public policy, partly perhaps because the reign of a female sovereign is regarded as favourable to popular liberties.

The history of primogeniture as applied to teudal succession is simpler than that of the inheritance of the crown. When a fief was regarded not strictly as an estate in land but rather as being in the nature of an office there was at first no room for the notion of its descent to an heir. Held first at will and afterwards for short fixed periods, the fiefs or benefices came gradually to be regarded as inheritances. When this idea was first established the fief was usually treated as being partible among all the sons, and it was not until 1138 that Frederick Barbarossa, for reasons of public policy, forbade the greater tenancies to be sub-divided. The Assises cle Jerusalem had laid down the same rule in 1099, though the king was then allowed to select any one of the children for succession. " In Brittany, primogeniture was not introduced till 1185, even for nobles and knights. . . . Down to the French Revolution a German baron had to make a family settlement and to get the consent of his younger sons, if he wished his land to descend to the eldest son alone" (Kenny, 11). In France the eldest son began to gain pre-eminence in the division of fiefs about the beginning of the 11th century, and the usage spread with more or less vigour through all the Western countries. " Usu ad omnia feuda serpsit, ut vel ex asse majori cedant, vel major praeeipuum aliquod in iis habeat" (Zoesius, cited in Co. Litt., 191a). In countries where the Roman law prevailed the privileges of the eldest son were secured by a legal fiction, the jurists deciding that every noble was a " miles " or soldier on service entitled to exceptional benefits. In Spain the inheritance was considered to be divisible into fifteen shares, of which seven in all (being one-fifth of the whole and one-third of the residue, known as the customary " fifth and third ") were within the parent's disposal as a majoratus ; and this was usually entailed upon the eldest son. Similar privileges by way of majorat have been given to particular land-owners in France at various times since the abolition of primogeniture in the great Revolution. The feudal primogeniture of England was firmly established in the reigns of the first two Norman kings, with a temporary provision for the case of estates lying both in England and Normandy, in which the Norman estate was allotted to the eldest son and the English estates to the second. Its origin, as we have seen, is to be found partly in old modes of customary inheritance surviving both in England and in Normandy, but mainly in the deliberate policy of the sovereigns, who wished to keep the military estates together, and took advantage of the strictness of the "custom of Caux" to carry out the objects of the "law of the sword." (C. I. E.)

The above article was written by: Charles I. Elton, M.P.

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