Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/759

Rh PRIMOGENITURE 735 This last instance appears to give us a clue to the origin of the strict English primogeniture as applied to the rustic holdings, sometimes called fiefs de roturier or &quot;plough man s fee,&quot; which in most parts of the Continent, as in almost every district in England before the Norman Con quest, 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 &quot; French &quot; 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 &quot; disgavelling &quot; 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 (Robinson, Gavel- kind, i. c. 5). The earlier view is very clearly stated in a charter by which Edward I. disgavelled certain lands of John de Cobham (Charter Rolls, 4 Edw. I., 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.&quot; 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 &quot; 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.&quot; 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 after wards, 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, &quot; the cattle and land being equally divided, but the house and offices going in addition to his own share to the eldest son &quot; (Hearn, Aryan Home- hold, 80, 82; O Curry, Lectures, clxxix.). Besides these cases we have the record of that system of &quot; Irish gavel kind &quot; 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. &quot;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 Canfinny 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 Canfinny (who was generally the oldest man in the sept) made all these partitions according to his discretion. This Canfinny, 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 &quot; (Robinson, Gavelkind, i. c. 2 ; Davis s Reports, 37, &quot;Case of Tanistry &quot;). 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 &quot;theel-lands.&quot; It was resolved in the great case of tanistry in the third year of James I. that this Irish &quot; custom of gavelkind &quot; was void in law as being unreason able and as being &quot; a mere personal custom &quot; not binding the descent of the inheritance, &quot; 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.&quot; 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 &quot;as in gavelkind,&quot; 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 primo geniture 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. &quot; The right of pro nouncing the prayers belongs to him who came into the world the first. A 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&quot; (Laivs of Manu, ix. 105, 126; Coulanges, La Cite Antique, c. 6, &quot; La Droit d Ainesse &quot;). 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