Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/758

Rh 734 PRIMOGENITURE 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 &quot;mainete,&quot; &quot;quevaise,&quot; and &quot; madelstad &quot; (Bouthors, &quot; Coutumes Locales du Bailliage d Amiens,&quot; Gout. Gen., 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 &quot; the youngest should have the principal messuage and all the buildings and eight acres of land, and the hatchet, the boiler, and the ploughshare,&quot; 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. 1 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 &quot; le preciput.&quot; The eldest son or eldest child got the house and a piece of fur niture and a plot of land &quot;as far as a chicken could fly,&quot; 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, &quot; mais 1 ainee outre sa portion aura la maison paternelle et le vol du chapon.&quot; 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 primo geniture. 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 Mann (Demosth., Pro Phorm., 34; Coulanges, Cite 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 &quot;principal&quot; to the eldest son (Germ., cc. 18, 20, 32), and that the strict rule of primogeniture appears to have existed in Scandi navia 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 1 Reports on Tenure of Land, 1869 ; Grimm, Deutsche Alterthiim., 475 ; Wenckebach, Jus Theelacticum Redivivum, 1759 ; Kovy, Summ. Juris Hungarici, 351 ; Mesokovesel, Les Bachkirs, &c., iii. 81. Northumbrian laws, &quot; Quomodo terreni parentes, quern primum fuderint, eum principium liberorum suorum cog- noscere et caiteris praeferendum ducere solent &quot; (Bede, Vit. Bened., s. 11). This may refer to some system of double portions, like the Jewish rule as to &quot;birthright&quot; (Deut. xxi. 15, 1C), or it may denote a preference in parti tion which secured the dwelling-house or principal chattels to &quot;the first-fruits of the family.&quot; 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 cr youngest. &quot;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 &quot; (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 &quot; villein-socage &quot; holdings, which afterwards developed into copyholds. &quot; 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 &quot; (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 &quot; rural primogeniture &quot; 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 Scandi navian origin of the Normans, or perhaps, as Richebourg suggested in his note on the Couttime 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 Coutumier General affords several examples of a more ample birthright which can hardly be attributed to any feudal influence. By the custom of Normandy &quot;the eldest son in right of his elder ship might take and choose as a preciput 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 &quot; (Coutume de Nor- mandie, 337, 356). &quot; L aisn6 faisant partage. . . peut retenir par precipu le lieu chevels. . . anciennement appele hebergement, soit en ville ou en champs, de quelque estendue qu il soit&quot; (&quot;Usage de Bayeux,&quot; Gout. Gen., iv. 77, 78, 94). The usage of the district of Caux, on the frontier of Picardy, was even more favourable to the eldest son : &quot; Demeurant le manoir et pourpris en son integrite au profit de 1 aisne sans qu il en puisse etre dispose a son prejudice, ny qu il soit tenu en faire recompense ausdits puisnes&quot; (&quot;Succ. Bailliage de Caux,&quot; ibid., 74).