Page:Ancient Law.djvu/250

CHAP. VII. 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