CHAPTER VII

ANCIENT AND MODERN IDEAS RESPECTING WILLS
AND SUCCESSIONS

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

At a period, removed several centuries from
the era of the Twelve Tables, we find a variety of
rules engrafted on the Roman Civil Law with the
view of limiting the disinherison of children ;
we have the jurisdiction of the Praetor very
actively exerted in the same interest ; and we
are also presented with a new remedy, very
anomalous in character and of uncertain origin,
called the Querela Inofficiosi Testamenti, " the
Plaint of an Unduteous Will/' directed to the
reinstatement of the issue in inheritances from
which they had been unjustifiably excluded by
a father's Testament. Comparing this condition
of the law with the text of the Twelve Tables
which concedes in terms the utmost liberty of
Testation, several writers have been tempted to
interweave a good deal of dramatic incident into



IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VH

their history of the Law Testamentary. They
tell us of the boundless license of disinherison
in which the heads of families instantly began to
indulge, of the scandal and injury to public morals
which the new practices engendered, and of the
applause of all good men which hailed the courage
of the Praetor in arresting the progress of paternal
depravity. This story, which is not without
some foundation for the principal fact it relates,
is often so told as to disclose very serious mis-
conceptions of the principles of legal history.
The Law of the Twelve Tables is to be explained
by the character of the age in which it was enacted.
It does not license a tendency which a later era
thought itself bound to counteract, but it proceeds
on the assumption that no such tendency exists,
or perhaps we should say, in ignorance of the
possibility of its existence. There is no likelihood
that Roman citizens began immediately to avail
themselves freely of the power to disinherit. It
is against all reason and sound appreciation of
history to suppose that the yoke of family bondage,
still patiently submitted to, as we know, where
its pressure galled most cruelly, would be cast off
in the very particular in which its incidence in
our own day is not otherwise than welcome.
The Law of the Twelve Tables permitted the
execution of Testaments in the only case in which
it was thought possible that they could be exe-
cuted, viz., on failure of children and proximate
kindred. It did not forbid the disinherison of
direct descendants, inasmuch as it did not legislate
against a contingency which no Roman lawgiver
of that era could have contemplated. No doubt,



CHAP, vii] FEELING RESPECTING INTESTACY

as the offices of family affection progressively
lost the aspect of primary personal duties, the
disinherison of children was occasionally at-
tempted. But the interference of the Praetor,
so far from being called for by the universality
of the abuse, was doubtless first prompted by
the fact that such instances of unnatural caprice
were few and exceptional, and at conflict with
the current morality.

The indications furnished by this part of
Roman Testamentary Law are of a very different
kind. It is remarkable that a Will never seems
to have been regarded by the Romans as a means
of disinheriting a Family, or of affecting the
unequal distribution of a patrimony. The rules
of law preventing its being turned to such a
purpose, increase in number and stringency as
the jurisprudence unfolds itself ; and these rules
correspond doubtless with the abiding sentiment
of Roman society, as distinguished from occasional
variations of feeling in individuals. It would
rather seem as if the Testamentary Power were
chiefly valued for the assistance it gave in making
provision for a Family, and in dividing the in-
heritance more evenly and fairly than the Law
of Intestate Succession would have divided it. If
this be the true reading of the general sentiment
on the point, it explains to some extent the singular
horror of Intestacy which always characterised
the Roman. No evil seems to have been con-
sidered a heavier visitation than the forfeiture
of Testamentary privileges ; no curse appears
to have been bitterer than that which imprecated
on an enemy that he might die without a Will.



194 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vii

The feeling has no counterpart, or none that is
easily recognisable, in the forms of opinion which
exist at the present day. All men at all times
will doubtless prefer chalking out the destination
of their substance to having their office performed
for them by the law ; but the Roman passion
for Testacy is distinguished from the mere desire
to indulge caprice by its intensity ; and it has,
of course, nothing whatever in common with
that pride of family, exclusively the creation of
feudalism, which accumulates one description of
property in the hands of a single representative.
It is probable, a priori, that it was something
in the rules of Intestate Succession which caused
this vehement preference for the distribution of
property under a Testament over its distribution
by law. The difficulty, however, is, that on
glancing at the Roman Law of Intestate Succession
in the form which it wore for many centuries
before Justinian shaped it into that scheme of
inheritance which has been almost universally
adopted by modern lawgivers, it by no means
strikes one as remarkably unreasonable or in-
equitable. On the contrary, the distribution it
prescribes is so fair and rational, and differs so
little from that with which modern society has
been generally contented, that no reason suggests
itself why it should have been regarded with
extraordinary distaste, especially under a juris-
prudence which pared down to a narrow compass
the testamentary privileges of persons who had
children to provide for. We should rather have
expected that, as in France at this moment, the
heads of families would generally save themselves



CHAP, vxi] ROMAN INTESTATE SUCCESSION IQ5

the trouble of executing a Will, and allow the
Law to do as it pleased with their assets. I
think, however, if we look a little closely at the
pre-Justinianean scale of Intestate Succession,
we shall discover the key to the mystery. The
texture of the law consists of two distinct parts.
One department of rules comes from the Jus
Civile, the Common-Law of Rome ; the other
from the Edict of the Praetor. The Civil Law,
as I have already stated for another purpose,
calls to the inheritance only three orders of
successors in their turn ; the Unemancipated
children, the nearest class of Agnatic kindred,
and the Gentiles. Between these three orders,
the Praetor interpolates various classes of rela-
tives, of whom the Civil Law took no notice
whatever. Ultimately, the combination of the
Edict and of the Civil Law forms a table of
succession not materially different from that
which has descended to the generality of
modern codes.

The point for recollection is, that there must
anciently have been a time at which the rules
of the Civil Law determined the scheme of Intes-
tate Succession exclusively, and at which the
arrangements of the Edict were non-existent,
or not consistently carried out. We cannot
doubt that, in its infancy, the Praetorian juris-
prudence had to contend with formidable obstruc-
tions, and it is more than probable that,
long after popular sentiment and legal opinion
had acquiesced in it, the modifications which it
periodically introduced were governed by no
certain principles, and fluctuated with the varying



196 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vn

bias of successive magistrates. The rules of
Intestate Succession, which the Romans must
at this period have practised, account, I think
and more than account for that vehement distaste
for an Intestacy to which Roman society during
so many ages remained constant. The order of
succession was this : on the death of a citizen,
having no will or no valid will, his Unemancipated
children became his Heirs. His emancipated sons
had no share in the inheritance. If he left no
direct descendants living at his death, the nearest
grade of the Agnatic kindred succeeded, but no
part of the inheritance was given to any relative
united (however closely) with the dead man
through female descents. All the other branches
of the family were excluded, and the inheritance
escheated to the Gentiles , or entire body of Roman
citizens bearing the same name with the deceased.
So that on failing to execute an operative Testa-
ment, a Roman of the era under examination
left his emancipated children absolutely without
provision, while, on the assumption that he died
childless, there was imminent risk that his posses-
sions would escape from the family altogether,
and devolve on a number of persons with whom
he was merely connected by the sacerdotal fiction
that assumed all members of the same gens to be
descended from a common ancestor. The prospect
of such an issue is in itself a nearly sufficient
explanation of the popular sentiment ; but, in
point of fact, we shall only half understand it,
if we forget that the state of things I have been
describing is likely to have existed at the very
moment when Roman society was in the first



CHAP, vn] FEELING RESPECTING INTESTACY

stage of its transition from its primitive organisa-
tion in detached families. The empire of the
father had indeed received one of the earliest
blows directed at it through the recognition of
Emancipation as a legitimate usage, but the law,
still considering the Patria Potestas to be the
root of family connection, persevered in looking
on the emancipated children as strangers to the
rights of kinship and aliens from the blood. We
cannot, however, for a moment suppose that the
limitations of the family imposed by legal pedantry
had their counterpart in the natural affection
of parents. Family attachments must still have
retained that nearly inconceivable sanctity and
intensity which belonged to them under the
Patriarchal system ; and so little are they likely
to have been extinguished by the act of emanci-
pation, that the probabilities are altogether the
other way. It may be unhesitatingly taken for
granted that enfranchisement from the father's
power was a demonstration, rather than a sever-
ance, of affection a mark of grace and favour
accorded to the best-beloved and most esteemed
of the children. If sons thus honoured above
the rest were absolutely deprived of their heritage
by an Intestacy, the reluctance to incur it requires
no farther explanation. We might have assumed
a priori that the passion for Testacy was generated
by some moral injustice entailed by the rules of
Intestate succession ; and here we find them at
variance with the very instinct by which early
society was cemented together. It is possible to
put all that has been urged in a very succinct
form. Every dominant sentiment of the primitive



198 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vn

Romans was entwined with the relations of the
family. But what was the Family ? The Law
defined it one way natural affection another.
In the conflict between the two, the feeling we
would analyse grew up, taking the form of an
enthusiasm for the institution by which the
dictates of affection were permitted to determine
the fortunes of its object.

I regard, therefore, the Roman horror of
Intestacy as a monument of a very early conflict
between ancient law and slowly changing ancient
sentiment on the subject of the Family. Some
passages in the Roman Statute-Law, and one
statute in particular which limited the capacity
for inheritance possessed by women, must have
contributed to keep alive the feeling ; and it is
the general belief that the system of creating
Fidei-Commissa, or bequests in trust, was devised
to evade the disabilities imposed by those statutes.
But the feeling itself, in its remarkable intensity,
seems to point back to some deeper antagonism
between law and opinion ; nor is it at all wonderful
that the improvements of jurisprudence by the
Praetor should not have extinguished it. Every-
body conversant with the philosophy of opinion
is aware that a sentiment by no means dies out,
of necessity, with the passing away of the circum-
stances which produced it. It may long survive
them ; nay, it may afterwards attain to a pitch
and climax of intensity which it never attained
during their actual continuance.

The view of a Will which regards it as con*
ferring the power of diverting property from the
Family, or of distributing it in such uneven



CHAP, vii] MODERN WILLS 199

proportions as the fancy or good sense of the
Testator may dictate, is not older than that later
portion of the Middle Ages in which Feudalism
had completely consolidated itself. When modern
jurisprudence first shows itself in the rough,
Wills are rarely allowed to dispose with absolute
freedom of a dead man's assets. Wherever at
this period the descent of property was regulated
by Will and over the greater part of Europe
movable or personal property was the subject
of Testamentary disposition the exercise of the
Testamentary power was seldom allowed to
interfere with the right of the widow to a definite
share, and of the children to certain fixed propor-
tions, of the devolving inheritance. The shares
of the children, as their amount shows, were
determined by the authority of Roman law. The
provision for the widow was attributable to the
exertions of the Church, which never relaxed its
solicitude for the interest of wives surviving their
husbands winning, perhaps, one of the most
arduous of its triumphs when, after exacting
for two or three centuries an express promise
from the husband at marriage to endow his wife,
it at length succeeded in engrafting the principle
of Dower on the Customary Law of all Western
Europe. Curiously enough, the dower of lands
proved a more stable institution than the analo-
gous and more ancient reservation of certain
shares of the personal property to the widow and
children. A few local customs in France main-
tained the right down to the Revolution, and
there are traces of similar usages in England;
but on the whole the doctrine prevailed that



20O IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VH

movables might be freely disposed of by Will,
and, even when the claims of the widow continued
to be respected, the privileges of the children
were obliterated from jurisprudence. We need
not hesitate to attribute the change to the in-
fluence of Primogeniture. As the Feudal law
of land practically disinherited all the children
in favour of one, the equal distribution even of
those sorts of property which might have been
equally divided ceased to be viewed as a duty.
Testaments were the principal instruments em-
ployed in producing inequality, and in this
condition of things originated the shade of differ-
ence which shows itself between the ancient and
the modern conception of a Will. But, though
the liberty of bequest, en joyed through Testaments,
was thus an accidental fruit of Feudalism, there
is no broader distinction than that which exists
between a system of free Testamentary disposition
and a system, like that of the Feudal land-law,
under which property descends compulsorily in
prescribed lines of devolution. This truth appears
to have been lost sight of by the authors of the
French Codes. In the social fabric which they
determined to destroy, they saw Primogeniture
resting chiefly on Family settlements, but they
also perceived that Testaments were frequently
employed to give the eldest son precisely the same
preference which was reserved to him under the
strictest of entails. In order, therefore, to make
sure of their work, they not only rendered it
impossible to prefer the eldest son to the rest in
marriage-arrangements, but they almost expelled
Testamentary succession from the law, lest it should



CHAP, vn] PRIMOGENITURE 2OI

be used to defeat their fundamental principle
of an equal distribution of property among
children at the parent's death. The result is
that they have established a system of small
perpetual entails which is infinitely nearer akin
to the system of feudal Europe than would be
a perfect liberty of bequest. The land-law of
England, " the Herculaneum of Feudalism/' is
certainly much more closely allied to the land-law
of the Middle Ages than that of any Continental
country, and Wills with us are frequently used
to aid or imitate that preference of the eldest
son and his line which is a nearly universal feature
in marriage settlements of real property. But
nevertheless feeling and opinion in this country
have been profoundly affected by the practice
of Free Testamentary disposition ; and it appears
to me that the state of sentiment in a great part
of French society, on the subject of the conserva-
tion of property in families, is much liker that
which prevailed throughout Europe two or three
centuries ago than are the current opinions of
Englishmen.

The mention of Primogeniture introduces one
of the most difficult problems of historical juris-
prudence. Though I have not paused to explain
my expressions, it may have been noticed that I
have frequently spoken of a number of " co-heirs "
as placed by the Roman Law of Succession on the
same footing with a single Heir, In point of fact,
we know of no period of Roman jurisprudence at
which the place of the Heir, or Universal Successor,
might not have been taken by a group of co-heirs.
This group succeeded as a single unit, and the



202 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vii

assets were afterwards divided among them in a
separate legal proceeding. When the Succession
was ab intestato, and the group consisted of the
children of the deceased, they each took an equal
share of the property ; nor, though males had at
one time some advantages over females, is there
the faintest trace of Primogeniture. The mode
of distribution is the same throughout archaic
jurisprudence. It certainly seems that, when civil
society begins and families cease to hold together
through a series of generations, the idea which
spontaneously suggests itself is to divide the
domain equally among the members of each
successive generation, and to reserve no privilege
to the eldest son or stock. Some peculiarly
significant hints as to the close relation of this
phenomenon to primitive thought are furnished
by systems yet more archaic than the Roman.
Among the Hindoos, the instant a son is born, he
acquires a vested right in his father's property,
which cannot be sold without recognition of his
joint-ownership. On the son's attaining full age,
he can sometimes compel a partition of the estate,
even against the consent of the parent ; and,
should the parent acquiesce, one son can always
have a partition even against the will of the others.
On such partition taking place, the father has no
advantage over his children, except that he has
two of the shares instead of one. The ancient law
of the German tribes was exceedingly similar.
The allod or domain of the family was the joint
property of the father and his sons. It does not,
however, appear to have been habitually divided
even at the death of the parent, and in the same



<5HAP. viij PRIMOGENITURE 2O3

way the possessions of a Hindoo, however divisible
theoretically, are so rarely distributed in fact, that
many generations constantly succeed each other
without a partition taking place, and thus the
Family in India has a perpetual tendency to expand
into the Village Community, under conditions
which I shall hereafter attempt to elucidate. All
this points very clearly to the absolutely equal divi-
sion of assets among the male children at death as
the practice most usual with society at the period
when family dependency is in the first stages of
disintegration. Here then emerges the historical
difficulty of Primogeniture. The more clearly we
perceive that, when the Feudal institutions were
in process of formation, there was no source in
the world whence they could derive their elements
but the Roman Law of the provincials on the one
hand and the archaic customs of the barbarians
on the other, the more are we perplexed at first
sight by our knowledge that neither Roman nor
barbarian was accustomed to give any preference
to the eldest son or his line in the succession to
property.

Primogeniture did not belong to the Customs
which the barbarians practised on their first
establishment within the Roman Empire. It is
known to have had its origin in the benefices or
beneficiary gifts of the invading chieftains. These
benefices, which were occasionally conferred by
the earlier immigrant kings, but were distributed
on a great scale by Charlemagne, were grants of
Roman provincial land to be holden by the
beneficiary on condition of military service. The
allodial proprietors do not seem to have followed



204 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VH

their sovereign on distant or difficult enterprises,
and all the grander expeditions of the Prankish
chiefs and of Charlemagne were accomplished with
forces composed of soldiers either personally de-
pendent on the royal house or compelled to serve
it by the tenure of their land. The benefices,
however, were not at first in any sense hereditary.
They were held at the pleasure of the grantor, or
at most for the life of the grantee ; but still, from
the very outset, no effort seems to have been
spared by the beneficiaries to enlarge the tenure,
and to continue their lands in their family after
death. Through the feebleness of Charlemagne's
successors, these attempts were universally suc-
cessful, and the Benefice gradually transformed
itself into the hereditary Fief. But, though the
fiefs were hereditary, they did not necessarily
descend to the eldest son. The rules of succession
which they followed were entirely determined by
the terms agreed upon between the grantor and
the beneficiary, or imposed by one of them on
the weakness of the other. The original tenures
were therefore extremely various ; not indeed so
capriciously various as is sometimes asserted, for
all which have hitherto been described present
some combination of the modes of succession
familiar to Romans and to barbarians, but still
exceedingly miscellaneous. In some of them the
eldest son and his stock undoubtedly succeeded
to the fief before the others, but such successions,
so far from being universal, do not even appear to
have been general. Precisely the same phenomena
recur during that more recent transmutation of
European society which entirely substituted the



CHAP, vii] ALLODS AND FIEFS 2O5

feudal form of property for the domainia (or
Roman) and the allodial (or German). The allods
were wholly absorbed by the fiefs. The greater
allodial proprietors transformed themselves into
feudal lords by conditional alienations of portions
of their land to dependants ; the smaller sought
an escape from the oppressions of that terrible
time by surrendering their property to some
powerful chieftain, and receiving it back at his
hands on condition of service in his wars. Mean-
time, that vast mass of the population of Western
Europe whose condition was servile or semi-
servile the Roman and German personal slaves,
the Roman coloni and the German lidi were
concurrently absorbed by the feudal organisation,
a few of them assuming a menial relation to the
lords, but the greater part receiving lands on terms
which in those centuries were considered degrading.
The tenures created during this era of universal
infeudation were as various as the conditions
which the tenants made with their new chiefs or
were forced to accept from them. As in the case
of the benefices, the succession to some, but by
no means all, of the estates followed the rule
of Primogeniture. No sooner, however, has the
feudal system prevailed throughout the West,
than it becomes evident that Primogeniture has
some great advantage over every other mode of
succession. It spread over Europe with remark-
able rapidity, the principal instrument of diffusion
being Family Settlements, the Pactes de Famille
of France and Haus-Gesetze of Germany, which
universally stipulated that lands held by knightly
service should descend to the eldest son. Ulti-



206 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vii

mately the law resigned itself to follow inveterate
practice, and we find that in all the bodies of
Customary Law, which were gradually built up,
the eldest son and stock are preferred in the suc-
cession to estates of which the tenure is free and
military. As to lands held by servile tenures
(and originally all tenures were servile which
bound the tenant to pay money or bestow manual
labour), the system of succession prescribed by
custom differed greatly in different countries and
different provinces. The more general rule was
that such lands were divided equally at death
among all the children, but still in some instances
the eldest son was preferred, in some the youngest.
But Primogeniture usually governed the inherit-
ance of that class of estates, in some respects the
most important of all, which were held by tenures
that, like the English Socage, were of later origin
than the rest, and were neither altogether free nor
altogether servile.

The diffusion of Primogeniture is usually ac-
counted for by assigning what are called Feudal
reasons for it. It is asserted that the feudal
superior had a better security for the military
service he required when the fief descended to a
single person, instead of being distributed among
a number on the decease of the last holder. With-
out denying that this consideration may partially
explain the favour gradually acquired by Primo-
geniture, I must point out that Primogeniture
became a custom of Europe much more through
its popularity with the tenants than through any
advantage it conferred on the lords. For its
origin, moreover, the reason given does not account



CHAP, vn] DIFFUSION OF PRIMOGENITURE 207

at all. Nothing in law springs entirely from a
sense of convenience. There are always certain
ideas existing antecedently on which the sense of
convenience works, and of which it can do no more
than form some new combination ; and to find
these ideas in the present case is exactly the
problem.

A valuable hint is furnished to us from a
quarter fruitful of such indications. Although in
India the possessions of a parent are divisible at
his death, and may be divisible during his life,
among all his male children in equal shares, and
though this principle of the equal distribution of
property extends to every part of the Hindoo in-
stitutions, yet wherever public office or political
power devolves at the decease of the last Incum-
bent, the succession is nearly universally according
to the rules of Primogeniture. Sovereignties
descend therefore to the eldest son, and where
the affairs of the Village Community, the corporate
unit of Hindoo society, are confided to a single
manager, it is generally the eldest son who takes
up the administration at his parent's death. All
offices, indeed, in India, tend to become hereditary,
and, when their nature permits it, to vest in the
eldest member of the oldest stock. Comparing
these Indian successions with some of the ruder
social organisations which have survived in Europe
almost to our own day, the conclusion suggests
itself that, when Patriarchal power is not only
domestic but political, it is not distributed among
all the issue at the parent's death, but is the
birthright of the eldest son. The chieftainship of
a Highland clan, for example, followed the order



208 IDAES AS TO WILLS AND SUCCESSIONS [CHAP, vii

of Primogeniture. There seems, in truth, to be a
form of family dependency still more archaic than
any of those which we know from the primitive
records of organised civil societies. The Agnatic
Union of the kindred in ancient Roman law, and
a multitude of similar indications, point to a period
at which all the ramifying branches of the family
tree held together in one organic whole ; and it
is no presumptuous conjecture, that, when the
corporation thus formed by the kindred was in
itself an independent society, it was governed by
the eldest male of the oldest line. It is true that
we have no actual knowledge of any such society.
Even in the most elementary communities, family-
organisations, as we know them, are at most
imperia in imperio. But the position of some of
them, of the Celtic clans in particular, was suffi-
ciently near independence within historical times
to force on us the conviction that they were once
separate imperia, and that Primogeniture regulated
the succession to the chieftainship. It is, however,
necessary to be on our guard against modern
associations with the term of law. We are
speaking of a family-connection still closer and
more stringent than any with which we are made
acquainted by Hindoo society or ancient Roman
law. If the Roman Paterfamilias was visible
steward of the family possessions, if the Hindoo
father is only joint sharer with his sons, still more
emphatically must the true patriarchal chieftain
be merely the administrator of a common fund.

The examples o"f succession by Primogeniture
which were found among the Benefices may, there-
fore, have been imitated from a system of family-



CHAP, vn] FALL OF CARLOVINGIAN EMPIRE 2CX)

government known to the invading races, though
not in general use. Some ruder tribes may have
still practised it, or, what is still more probable,
society may have been so slightly removed from
its more archaic condition that the minds of some
men spontaneously recurred to it, when they were
called upon to settle the rules of inheritance for
a new form of property. But there is still the
question, Why did Primogeniture gradually super-
sede every other principle of succession ? The
answer, I think, is, that European society de-
cidedly retrogaded during the dissolution of the
Carlovingian empire. It sank a point or two back
even from the miserably low degree which it had
marked during the earlier barbarian monarchies.
The great characteristic of the period was the
feebleness, or rather the abeyance, of kingly and
therefore of civil authority ; and hence it seems
as if, civil society no longer cohering, men univer-
sally flung themselves back on a social organisa-
tion older than the beginnings of civil communities.
The lord with his vassals, during the ninth and
tenth centuries, may be considered as a patriarchal
household, recruited, not as in the primitive times
by Adoption, but by Infeudation ; and to such a
confederacy, succession by Primogeniture was a
source of strength and durability. So long as
the land was kept together on which the entire
organisation rested, it was powerful for defence
and attack ; to divide the land was to divide the
little society, and voluntarily to invite aggression
in an era of universal violence. We may be
perfectly certain that into this preference for
Primogeniture there entered no idea of disin-



2IO IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vn

heriting the bulk of the children in favour of one.
Everybody would have suffered by the division
of the fief. Everybody was a gainer by its
consolidation. The Family grew stronger by the
concentration of power in the same hands ; nor is
it likely that the lord who was invested with the
inheritance had any advantage over his brethren
and kinsfolk in occupations, interests, or indul-
gences. It would be a singular anachronism to
estimate the privileges succeeded to by the heir
of a fief, by the situation in which the eldest son
is placed under an English strict settlement.

I have said that I regard the early feudal con-
federacies as descended from an archaic form of
the Family, and as wearing a strong resemblance
to it. But then in the ancient world, and in the
societies which have not passed through the cru-
cible of feudalism, the Primogeniture which seems
to have prevailed never transformed itself into
the Primogeniture of the later feudal Europe.
When the group of kinsmen ceased to be governed
through a series of generations by a hereditary
chief, the domain which had been managed for all
appears to have been equally divided among all.
Why did this not occur in the feudal world ? If
during the confusions of the first feudal period
the eldest son held the land for the behoof of the
whole family, why was it that when feudal Europe
had consolidated itself, and regular communities
were again established, the whole family did not
resume that capacity for equal inheritance which
had belonged to Roman and German alike ? The
key which unlocks this difficulty has rarely been
seized by the writers who occupy themselves in



CHAP, vn] MODERN VIEW OF CHIEFTAINSHIP 211

tracing the genealogy of Feudalism. They per-
ceive the materials of the feudal institutions, but
they miss the cement. The ideas and social forms
which contributed to the formation of the system
were unquestionably barbarian and archaic, but
as soon as Courts and lawyers were called in to
interpret and define it, the principles of interpre-
tation which they applied to it were those of the
latest Roman jurisprudence, and were therefore
excessively refined and matured. In a patriarch-
ally governed society, the eldest son may succeed
to the government of the Agnatic group, and to
the absolute disposal of its property. But he is
not therefore a true proprietor. He has correla-
tive duties not involved in the conception of
proprietorship, but quite undefined and quite
incapable of definition. The later Roman juris-
prudence, however, like our own law, looked upon
uncontrolled power over property as equivalent
to ownership, and did not, and, in fact, could not,
take notice of liabilities of such a kind, that the
very conception of them belonged to a period
anterior to regular law. The contact of the re-
fined and the barbarous notion had inevitably
for its effect the conversion of the eldest son into
legal proprietor of the inheritance. The clerical
and secular lawyers so defined his position from
the first ; but it was only by insensible degrees
that the younger brother, from participating on
equal terms in all the dangers and enjoyments of
his kinsman, sank into the priest, the soldier of
fortune, or the hanger-on of the mansion. The
legal revolution was identical with that which
occurred on a smaller scale, and in quite recent



212 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP, vii

times, through the greater part of the Highlands
of Scotland. When called in to determine the
legal powers of the chieftain over the domains
which gave sustenance to the clan, Scottish juris-
prudence had long since passed the point at which
it could take notice of the vague limitations on
completeness of dominion imposed by the claims
of the clansmen, and it was inevitable therefore
that it should convert the patrimony of many into
the estate of one.

For the sake of simplicity, I have called the
mode of succession Primogeniture whenever a
single son or descendant succeeds to the authority
over a household or society. It is remarkable,
however, that in the few very ancient examples
which remain to us of this sort of succession,
it is not always the eldest son, in the sense familiar
to us, who takes up the representation. The
form of Primogeniture which has spread over
Western Europe has also been perpetuated among
the Hindoos, and there is every reason to believe
that it is the normal form. Under it, not only
the eldest son, but the eldest line is always
preferred. If the eldest son fails, his eldest son
has precedence not only over brothers but over
uncles ; and, if he too fails, the same rule is
followed in the next generation. But when the
succession is not merely to civil but to political
power, a difficulty may present itself which will
appear of greater magnitude according as the
cohesion of society is less perfect. The chieftain
who last exercised authority may have outlived
his eldest son, and the grandson who is primarily
entitled to succeed may be too young and imma-



CHAP, vn] FORMS OF PRIMOGENITURE 213

ture to undertake the actual guidance of the
community, and the administration of its affairs.
In such an event, the expedient which suggests
itself to the more settled societies is to place the
infant heir under guardianship till he reaches
the age of fitness for government. The guardian-
ship is generally that of the male Agnates ; but
it is remarkable that the contingency supposed
is one of the rare cases in which ancient societies
have consented to the exercise of power by women,
doubtless out of respect to the overshadowing
claims of the mother. In India, the widow of a
Hindoo sovereign governs in the name of her
infant son, and we cannot but remember that the
custom regulating succession to the throne of
France which, whatever be its origin, is doubtless
of the highest antiquity preferred the queen-
mother to all other claimants for the Regency,
at the same time that it rigorously excluded all
females from the throne. There is, however,
another mode of obviating the inconvenience
attending the devolution of sovereignty on an
infant heir, and it is one which would doubtless
occur spontaneously to rudely organised com-
munities. This is to set aside the infant heir
altogether, and confer the chieftainship on the
eldest surviving male of the first generation. The
Celtic clan-associations, among the many pheno-
mena which they preserved of an age in which
civil and political society were not yet even
rudimentarily separated, have brought down this
rule of succession to historical times. With them,
it seems to have existed in the form of a positive
canon, that, failing the eldest son, his next brother



214 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP.VII

succeeds in priority to all grandsons, whatever
be their age at the moment when the sovereignty
devolves. Some writers have explained the prin-
ciple by assuming that the Celtic customs took
the last chieftain as a sort of root or stock, and
then gave the succession to the descendant who
should be least remote from him ; the uncle thus
being preferred to the grandson as being nearer
to the common root. No objection can be taken
to this statement if it be merely intended as a
description of the system of succession ; but it
would be a serious error to conceive the men
who first adopted the rule as applying a course
of reasoning which evidently dates from the time
when feudal schemes of succession began to be
debated among lawyers. The true origin of the
preference of the uncle to the grandson is doubtless
a simple calculation on the part of rude men
in a rude society that it is better to be governed
by a grown chieftain than by a child, and that
the younger son is more likely to have come
to maturity than any of the eldest son's descen-
dants. At the same time, we have some evidence
that the form of Primogeniture with which we
are best acquainted is the primary form, in the
tradition that the assent of the clan was asked
when an infant heir was passed over in favour
of his uncle. There is a tolerably well authenti-
cated instance of this ceremony in the annals
of the Scottish Macdonalds ; and Irish Celtic
antiquities, as interpreted by recent inquirers,
are said to disclose many traces of similar prac-
tices. The substitution by means of election,
of a " worthier" Agnatic relative for an elder



CHAP, vii] MAHOMETAN RULE 215

is not unknown, too, in the system of the Indian
Village Communities*

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



2l6 IDEAS AS TO WILLS AND SUCCESSIONS [CHAP. VH

Mahometan sovereigns, without pretending to
any distinct testamentary power, claim the right
of nominating the son who is to succeed. The
blessing mentioned in the Scriptural history of
Isaac and his sons has sometimes been spoken
of as a will, but it seems rather to have been a
mode of naming an eldest son.