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
Successions. 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 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 misconceptions 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 executed, 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,
as the offices of family affection progressively lost the aspect of
primary personal duties, the disinherison of children was occasionally
attempted. 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 effecting 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 inheritance 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 considered 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. 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 that 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
inequitable. 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 jurisprudence 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 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 relatives, 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
Intestate 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 jurisprudence had to contend
with formidable obstructions, 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 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 Testament, 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 possessions 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 stage of its transition from its primitive
organisation 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 emancipation, 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 severance, 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 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 objects.
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. Everybody conversant with the philosophy of opinion
is aware that a sentiment by no means dies out, of necessity, with the
passing away of the circumstances 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 conferring the power of
diverting property from the Family, or of distributing it in such
uneven 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 moveable 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
proportions, 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 analogous and more ancient
reservation of certain shares of the personal property to the widow
and children. A few local customs in France maintained the right down
to the Revolution, and there are traces of similar usages in England;
but on the whole the doctrine prevailed that moveables 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
influence 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 employed in producing inequality, and in this
condition of things originated the shade of difference which shows
itself between the ancient and the modern conception of a Will. But,
though the liberty of bequest, enjoyed 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 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
conservation of property in families, is much liker that which
prevailed through 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 jurisprudence. 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
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 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 division 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 their sovereign on
distant or difficult enterprises, and all the grander expeditions of
the Frankish chiefs and of Charlemagne were accomplished with forces
composed of soldiers either personally dependent on the royal house or
compelled to serve it by the tenure of their land. The benefices,
however, were not at first in any sense hereditary. They were held at
the pleasure of the grantor, or at most for the life of the grantee;
but still, from the very outset, no effort seems to have been spared
by the beneficiaries to enlarge the tenure, and to continue their
lands in their family after death. Through the feebleness of
Charlemagne's successors these attempts were universally successful,
and the Benefice gradually transformed itself into the hereditary
Fief. But, though the fiefs were hereditary, they did not necessarily
descend to the eldest son. The rules of succession which they followed
were entirely determined by the terms agreed upon between the grantor
and the beneficiary, or imposed by one of them on the weakness of the
other. The original tenures were therefore extremely various; not
indeed so capriciously various as is sometimes asserted, for all which
have hitherto been described present some combination of the modes of
succession familiar to Romans and to barbarians, but still exceedingly
miscellaneous. In some of them, the eldest son and his stock
undoubtedly succeeded to the fief before the others, but such
successions, so far from being universal, do not even appear to have
been general. Precisely the same phenomena recur during that more
recent transmutation of European society which entirely substituted
the feudal form of property for the domainial (or Roman) and the
allodial (or German). The allods were wholly absorbed by the fiefs.
The greater allodial proprietors transformed themselves into feudal
lords by conditional alienations of portions of their land to
dependants; the smaller sought an escape from the oppressions of that
terrible time by surrendering their property to some powerful
chieftain, and receiving it back at his hands on condition of service
in his wars. Meantime, that vast mass of the population of Western
Europe whose condition was servile or semi-servile--the Roman and
German personal slaves, the Roman _coloni_ and the German _lidi_--were
concurrently absorbed by the feudal organisation, a few of them
assuming a menial relation to the lords, but the greater part
receiving land on terms which in those centuries were considered
degrading. The tenures created during this era of universal
infeudation were as various as the conditions which the tenants made
with their new chiefs or were forced to accept from them. As in the
case of the benefices, the succession to some, but by no means to all,
of the estates followed the rule of Primogeniture. No sooner, however,
has the feudal system prevailed throughout the West, than it becomes
evident that Primogeniture has some great advantage over every other
mode of succession. It spread over Europe with remarkable rapidity,
the principal instrument of diffusion being Family Settlements, the
Pactes de Famille of France and Haus-Gesetze of Germany, which
universally stipulated that lands held by knightly service should
descend to the eldest son. Ultimately the law resigned itself to
follow inveterate 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 succession to estates of which the tenure is free
and military. As to lands held by servile tenures (and originally all
tenures were servile which bound the tenant to pay money or bestow
manual labour), the system of succession prescribed by custom differed
greatly in different countries and different provinces. The more
general rule was that such lands were divided equally at death among
all the children, but still in some instances the eldest son was
preferred, in some the youngest. But Primogeniture usually governed
the inheritance of that class of estates, in some respects the most
important of all, which were held by tenures that, like the English
Socage, were of later origin than the rest, and were neither
altogether free nor altogether servile.
The diffusion of Primogeniture is usually accounted for by assigning
what are called Feudal reasons for it. It is asserted that the feudal
superior had a better security for the military service he required
when the fief descended to a single person, instead of being
distributed among a number on the decease of the last holder. Without
denying that this consideration may partially explain the favour
gradually acquired by Primogeniture, I must point out that
Primogeniture became a custom of Europe much more through its
popularity with the tenants than through any advantage it conferred on
the lords. For its origin, moreover, the reason given does not account
at all. Nothing in law springs entirely from a sense of convenience.
There are always certain ideas existing antecedently on which the
sense of convenience works, and of which it can do no more than form
some new combination; and to find these ideas in the present case is
exactly the problem.
A valuable hint is furnished to us from a quarter fruitful of such
indications. Although in India the possessions of a parent are
divisible at his death, and may be divisible during his life, among
all his male children in equal shares, and though this principle of
the equal distribution of _property_ extends to every part of the
Hindoo institutions, yet wherever _public office_ or _political power_
devolves at the decease of the last Incumbent, the succession is
nearly universally according to the rules of Primogeniture.
Sovereignties descend therefore to the eldest son, and where the
affairs of the Village Community, the corporate unit of Hindoo
society, are confided to a single manager, it is generally the eldest
son who takes up the administration at his parent's death. All
offices, indeed, in India, tend to become hereditary, and, when their
nature permits it, to vest in the eldest member of the oldest stock.
Comparing these Indian successions with some of the ruder social
organisations which have survived in Europe almost to our own day, the
conclusion suggests itself that, when Patriarchal power is not only
_domestic_ but _political_, it is not distributed among all the
issue at the parent's death, but is the birthright of the eldest
son. The chieftainship of a Highland clan, for example, followed
the order of Primogeniture. There seems, in truth, to be a form of
family-dependency still more archaic than any of those which we know
from the primitive records of organised civil societies. The Agnatic
Union of the kindred in ancient Roman law, and a multitude of similar
indications, point to a period at which all the ramifying branches of
the family tree held together in one organic whole; and it is no
presumptuous conjecture, that, when the corporation thus formed by the
kindred was in itself an independent society, it was governed by the
eldest male of the oldest line. It is true that we have no actual
knowledge of any such society. Even in the most elementary
communities, family-organisations, as we know them, are at most
_imperia in imperio_. But the position of some of them, of the Celtic
clans in particular, was sufficiently near independence within
historical times to force on us the conviction that they were once
separate _imperia_, and that Primogeniture regulated the succession to
the chieftainship. It is, however, necessary to be on our guard
against modern associations with the term of law. We are speaking of a
family-connection still closer and more stringent than any with which
we are made acquainted by Hindoo society or ancient Roman law. If the
Roman Paterfamilias was visibly steward of the family possessions, if
the Hindoo father is only joint-sharer with his sons, still more
emphatically must the true patriarchal chieftain be merely the
administrator of a common fund.
The examples of succession by Primogeniture which were found among the
Benefices may, therefore, have been imitated from a system of
family-government known to the invading races, though not in general
use. Some ruder tribes may have still practised it, or, what is still
more probable, society may have been so slightly removed from its more
archaic condition that the minds of some men spontaneously recurred to
it, when they were called upon to settle the rules of inheritance for
a new form of property. But there is still the question, Why did
Primogeniture gradually supersede every other principle of succession?
The answer, I think, is, that European society decidedly retrograded
during the dissolution of the Carlovingian empire. It sank a point or
two back even from the miserably low degree which it had marked during
the early barbarian monarchies. The great characteristic of the
period was the feebleness, or rather the abeyance, of kingly and
therefore of civil authority; and hence it seems as if, civil society
no longer cohering, men universally flung themselves back on a social
organisation older than the beginnings of civil communities. The lord
with his vassals, during the ninth and tenth centuries, may be
considered as a patriarchal household, recruited, not as in the
primitive times by Adoption, but by Infeudation; and to such a
confederacy, succession by Primogeniture was a source of strength and
durability. So long as the land was kept together on which the entire
organisation rested, it was powerful for defence and attack; to divide
the land was to divide the little society, and voluntarily to invite
aggression in an era of universal violence. We may be perfectly
certain that into this preference for Primogeniture there entered no
idea of disinheriting the bulk of the children in favour of one.
Everybody would have suffered by the division of the fief. Everybody
was a gainer by its consolidation. The Family grew stronger by the
concentration of power in the same hands; nor is it likely that the
lord who was invested with the inheritance had any advantage over his
brethren and kinsfolk in occupations, interests, or indulgences. It
would be a singular anachronism to estimate the privileges succeeded
to by the heir of a fief, by the situation in which the eldest son is
placed under an English strict settlement.
I have said that I regard the early feudal confederacies as descended
from an archaic form of the Family, and as wearing a strong
resemblance to it. But then in the ancient world, and in the societies
which have not passed through the crucible of feudalism, the
Primogeniture which seems to have prevailed never transformed itself
into the Primogeniture of the later feudal Europe. When the group of
kinsmen ceased to be governed through a series of generations by a
hereditary chief, the domain which had been managed for all appears to
have been equally divided among all. Why did this not occur in the
feudal world? If during the confusions of the first feudal period the
eldest son held the land for the behoof of the whole family, why was
it that when feudal Europe had consolidated itself, and regular
communities were again established, the whole family did not resume
that capacity for equal inheritance which had belonged to Roman and
German alike? The key which unlocks this difficulty has rarely been
seized by the writers who occupy themselves in tracing the genealogy
of Feudalism. They perceive the materials of the feudal institutions,
but they miss the cement. The ideas and social forms which contributed
to the formation of the system were unquestionably barbarian and
archaic, but, as soon as Courts and lawyers were called in to
interpret and define it, the principles of interpretation which they
applied to it were those of the latest Roman jurisprudence, and were
therefore excessively refined and matured. In a patriarchally governed
society, the eldest son may succeed to the government of the Agnatic
group, and to the absolute disposal of its property. But he is not
therefore a true proprietor. He has correlative duties not involved in
the conception of proprietorship, but quite undefined and quite
incapable of definition. The later Roman jurisprudence, however, like
our own law, looked upon uncontrolled power over property as
equivalent to ownership, and did not, and, in fact, could not, take
notice of liabilities of such a kind, that the very conception of them
belonged to a period anterior to regular law. The contact of the
refined and the barbarous notion had inevitably for its effect the
conversion of the eldest son into legal proprietor of the inheritance.
The clerical and secular lawyers so defined his position from the
first; but it was only by insensible degrees that the younger brother,
from participating on equal terms in all the dangers and enjoyments of
his kinsman, sank into the priest, the soldier of fortune, or the
hanger-on of the mansion. The legal revolution was identical with that
which occurred on a smaller scale, and in quite recent times, through
the greater part of the Highlands of Scotland. When called in to
determine the legal powers of the chieftain over the domains which
gave sustenance to the clan, Scottish jurisprudence had long since
passed the point at which it could take notice of the vague
limitations on completeness of dominion imposed by the claims of the
clansmen, and it was inevitable therefore that it should convert the
patrimony of many into the estate of one.
For the sake of simplicity I have called the mode of succession
Primogeniture whenever a single son or descendant succeeds to the
authority over a household or society. It is remarkable, however, that
in the few very ancient examples which remain to us of this sort of
succession, it is not always the eldest son, in the sense familiar to
us, who takes up the representation. The form of Primogeniture which
has spread over Western Europe has also been perpetuated among the
Hindoos, and there is every reason to believe that it is the normal
form. Under it, not only the eldest son, but the eldest line is always
preferred. If the eldest son fails, his eldest son has precedence not
only over brothers but over uncles; and, if he too fails, the same
rule is followed in the next generation. But when the succession is
not merely to _civil_ but to _political_ power, a difficulty may
present itself which will appear of greater magnitude according as the
cohesion of society is less perfect. The chieftain who last exercised
authority may have outlived his eldest son, and the grandson who is
primarily entitled to succeed may be too young and immature to
undertake the actual guidance of the community, and the administration
of its affairs. In such an event, the expedient which suggests itself
to the more settled societies is to place the infant heir under
guardianship till he reaches the age of fitness for government. The
guardianship is generally that of the male Agnates; but it is
remarkable that the contingency supposed is one of the rare cases in
which ancient societies have consented to the exercise of power by
women, doubtless out of respect to the overshadowing claims of the
mother. In India, the widow of a Hindoo sovereign 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 communities. This is
to set aside the infant heir altogether, and confer the chieftainship
on the eldest surviving male of the first generation. The Celtic
clan-associations, among the many phenomena which they have preserved
of an age in which civil and political society were not yet even
rudimentarily separated, have brought down this rule of succession to
historical times. With them, it seems to have existed in the form of a
positive canon, that, failing the eldest son, his next brother
succeeds in priority to all grandsons, whatever be their age at the
moment when the sovereignty devolves. Some writers have explained the
principle by assuming that the Celtic customs took the last chieftain
as a sort of root or stock, and then gave the succession to the
descendant who should be least remote from him; the uncle thus being
preferred to the grandson as being nearer to the common root. No
objection can be taken to this statement if it be merely intended as a
description of the system of succession; but it would be a serious
error to conceive the men who first adopted the rule as applying a
course of reasoning which evidently dates from the time when feudal
schemes of succession begun to be debated among lawyers. The true
origin of the preference of the uncle to the grandson is doubtless a
simple calculation on the part of rude men in a rude society that it
is better to be governed by a grown chieftain than by a child, and
that the younger son is more likely to have come to maturity than any
of the eldest son's descendants. At the same time, we have some
evidence that the form of Primogeniture with which we are best
acquainted is the primary form, in the tradition that the assent of
the clan was asked when an infant heir was passed over in favour of
his uncle. There is a tolerably well authenticated instance of this
ceremony in the annals of the Macdonalds.
Under Mahometan law, which has probably preserved an ancient Arabian
custom, inheritances of property are divided equally among sons, the
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 in Egypt, I am informed that there is some
doubt as to its governing the devolution of the Turkish sovereignty.
The policy of the Sultans has in fact hitherto prevented cases for its
application from occurring, and it is possible that their wholesale
massacres of their younger brothers may have been perpetuated quite as
much in the interest of their children as for the sake of making away
with dangerous competitors for the throne. It is evident, however,
that in polygamous 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 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.