.TWO ESSAYS 
 
 ON THE 
 
 LAW OF PRIMOGENITURE 
 
 KENNY & LAURENCE 
 
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 DATE 
 
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 GAVLOflO 
 
 
 
 PRINTED IN {ISA 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021862150 
 
TWO ESSAYS 
 
 ON THE LAW OF 
 
 PRIMOGENITUEE, 
 
 BY 
 
 C. S. KENNY, LL.B., 
 
 FELLOW AND LAW LBCXUBER OF DOWNING COLLEGE, 
 AND 
 
 P. M. LAURENCE, B.A., 
 
 FELLOW OF C0RPU8 CHRISTI COLLEGE, CAMBRIDGE. 
 
 CAMBRIDGE:— J. HALL & SON, TEUMPINGTON STREET. 
 
 LONDON :— REEVES & TUENER, CHANCERY LANE. 
 
 1878. 
 
PEEFACE. 
 
 Edmund Yoeke, M.A., late Fellow of St. Catharine's Hall, 
 bequeathed to the University of Cambridge a sum of money 
 for the purpose of founding a Prize for an Essay on the Law 
 of Primogeniture. A scheme for carrying out the bequest 
 received the sanction of the Chancery Division of the High 
 Court in 1875 ; and it was ordered that a prize should 
 annually be offered for competition for an essay on some 
 subject relating to " the Law of Property, its Principles and 
 History in various Ages and Coimtries." The prize was first 
 offered in November, 1876, when the subject announced was 
 " The History of the Law of Primogeniture in England, and 
 its effects upon Landed Property." The prize was awarded, 
 in February of this year, to the two Essays contained in the 
 present volume, which were pronounced by the Examiners 
 to be of equal merit. They are now published, in accordance 
 with the requirements of the University. It may perhaps 
 be convenient to add that copies of either essay in a separate 
 form may be obtained from the Publishers. 
 
THE HISTORY 
 
 LAW OF PEIIOGENITURE IN ENGLAND 
 
 ITS EFFECT UPON LANDED PEOPERTY. 
 
 (BEING AN ESSAY WHICH, JOINTLY WITH ANOTHER, OBTAINED THE YORKE 
 PRIZE OF THE UNIVERSITY OF CAMBRIDGE). 
 
 BY COURTNEY STANHOPE KENNY, LL.B., 
 
 OF LINCOLN'S INN, 
 FELLOW AND LAW LECTURER OF DOWNING COLLEGE, CAMBRIDGE. 
 
 Ivbf, o dvvaaif avd re jj-eXaipa Kara rt TrdXiag-. 
 
 Euripides. 
 
 CAMBRIDGE :— J. HALL & SON. 
 
 LONDON :— REEVES & TURNER ; AND SIMPKIN, MARSHALL, &, CO. 
 
 1878. 
 
LONDON" : 
 
 PRINTED BY GEORGE REVEIRS, GRAYSTOKE PLACE, 
 
 FETTER LANE, E.C. 
 
TO 
 
 RICHARD DAVIS CRAIG, ESQ., Q.C., 
 
 IN EBCOED OP ADMIRATION 
 
 FOE HIS JURCDIOAL AND HISTORICAL 
 
 LEARNING. 
 
ANALYSIS OF CONTENTS. 
 
 I. — Anticipations of Primogeniture in England before the Nobman 
 Conquest. 
 
 The Britons, unlike the Romans, exclude females. 
 The Welsh. 
 
 Youngest son's privilege. 
 
 Eldest son's privilege. 
 The Saxons. 
 
 Females admitted, but postponed. 
 
 Youngest son preferred in towns. 
 
 Eldest son preferred by nobles. 
 
 II. — KisE OF the Lavt of Primogeniture in England. 
 
 1 . Its imposition by Wm. I. upon his Military Tenants. 
 
 His motives for the change. 
 
 2. Its gradual spread amongst the Military Tenants of Mesne Lords. 
 
 3. Its gradual spread amongst Socagers. 
 
 (i.) Under military pressure. 
 
 " Laws of Henry I." 
 (ii.) Under juridical pressure. 
 
 QlanviUe. 
 
 The Turning-point a.d. 1200. 
 
 Bracton. 
 
 Fleta and Britton. 
 Except 
 
 (a) in Kent. 
 
 Causes of this exception. 
 
 1. Independence of the ceorls. 
 
 2. Prominence of the Church. 
 
 3. Geographical position. 
 (6) in Towns. 
 
 4. Its successive extensions amongst Kentish Socagers. 
 
 (i.) By Prerogative. 1202—1313. 
 (ii.) By Statute. 1496—1624. 
 The subsequent relapse. 
 
 5. Its extension to Wales. 1543. 
 
6. Its Bucceasive extensions in Ireland. 
 
 For lands of Englishry (Hen. II.). 
 Made universal (James I.). 
 Lands of Papists excepted (Anne). 
 Again made universal (Geo. III.). 
 
 7. Its gradual spread amongst Copyholders. 
 
 8. Its gradual spread amongst Customary Freeholders. 
 
 , Cause of the exaggerated form it here assumed. 
 
 Analogy of the Isle of Man, and of Holland. 
 
 9. Its non-extension to Leaseholders. 
 
 Contrast with Scottish law. 
 Cause of the difference. 
 
 III.— The SnccESBivE Safeouards op Pbimogeniture. 
 
 The heir's expectancy protected by Restrictions on Alienation, imposed 
 (i.) By laws for direct benefit of heir. 10 — . 
 (ii.) By laws for direct benefit of lord. 1217. 
 (iii.) By entails. 1285. 
 (iv.) By contingent remainders. Ii31. 
 
 IV. — The Effects of the Law of Peimogenitube. 
 In the past (a) Military. 
 
 (6) Political and Social. 
 
 (c) Economical. 
 In the present (d) Domestic. 
 
 v.— The Phobablb Future op the Law of Pkimoqeniture. 
 Arguments for its retention. 
 
 (i.) The reform would be inoperative ; 
 (ii.) Yet would cause excessive subdivision, 
 (iii.) Primogeniture stimulates younger sons ; 
 (iv.) Stimulates capitalists ; 
 (v.) And is essential to a Peerage, 
 (vi.) Change of Law would change the Custom. 
 Modern Parliamentary efforts to abolish it. 
 Their basis the Succession Law of Personalty. 
 Suggested modifications ; — 
 
 (1) Peers to be excepted. 
 
 (2) An option of Purchase. 
 
 (3) Cottiers to be excepted. 
 
 Suggestion of Qualified Primogeniture as a preferable basis of reform. 
 Conclusion. 
 
THE 
 
 AND ITS EFFECT UPON LANDED PROPERTY. 
 
 I. — Anticipations of Primogeniture in England 
 
 BEFORE THE NORMAN CONQUEST. 
 
 Primogeniture had no place among the earliest inhabi- 
 tants of our island. At Caesar's landing, agricultural arts, 
 and consequently all ideas of private property in land, were 
 unknown to the mass of Britons. As civilisation spread 
 among them, and land came to be cultivated and appro- 
 priated, a law of property was developed; but its usages as 
 to succession took the form common to all Keltic races, and 
 gave the inheritance to the male kinsfolk, recognising among 
 them no priorities or preferences, although rigidly excluding 
 females from any possibility of inheriting land. In earlier 
 times the succession, doubtless, went to all the males of the 
 clan. . But when the conception of property grew more 
 definite, and the rights of the family became distinct from 
 those of the clan, the sons of the deceased proprietor became 
 his only heirs. Yet the more primitive form of succession 
 survived for many centuries in that more primitive state of 
 society which prevailed across the Channel; and English 
 jurists, to whom the early history of their own law was 
 unknown, bestowed upon it the distinctive name of " Irish 
 Gavelkind." 
 
 The rapid progress of Roman influence created a line of 
 colonies and municipalities along the East and South; and 
 the edict of Caracalla, by raising all his free British subjects 
 to citizenship, carried the Roman law into native households. 
 But however great were the changes thus effected, none of 
 
them would tend to the introduction of Primogeniture. The 
 tendency was, indeed, in the opposite direction; for Roman 
 law, by establishing the equality of the sexes in intestate 
 succession, and repudiating the idea of hereditary office,' 
 destroyed the only customs of Britain from which Primo- 
 geniture might in time have sprung. 
 
 Before discussing the further changes which Saxon 
 invasions introduced, it will be convenient to continue the 
 present branch of our subject into a somewhat later period, 
 that we may see how the Keltic custom developed itself 
 when not affected by violent interference from without. 
 
 The Britons who had taken refuge in the Welsh moun- 
 tains retained their custom of partition amongst males, and 
 originally applied it, not. only to lands, but to chieftainship.* 
 Less than two centuries before the Norman conquest, the 
 Welsh crown passed from Roderick the Great to his three 
 sons, Anarawd, Cadela, and Mervin, as co-heirs.-|- But with 
 the Cymry, as with all other nations, a brief political 
 experience sufficed to show the necessity of rendering the 
 crown impartible. Hence, when we get our first detailed 
 picture of Welsh life in the Laws of Howel Dda,j: more than 
 a century and a quarter before the Conquest, all trace of 
 the old custom is gone from constitutional law, and the 
 king's successor is always a single male kinsman. But 
 this carries us little way towards Primogeniture; for the 
 successor's right springs entirely from the king's nomi- 
 nation, and the king may nominate, as edling, whatever 
 son, or even nephew, he may choose. His choice does, how- 
 ever, seem to have most frequently fallen upon his eldest 
 son. 
 
 In Wales, in fact, unlike other countries, the tendency to 
 Primogeniture, such as it was, is more marked in the law of 
 property than in the law of office. Welsh land in Howel's 
 time may be divided into two kinds. There is some which 
 
 * Powell's "History of Wales," p. 21, gives an instance, a.d. 811. 
 
 + Enderbie's " Cambria Triumphans," p. 217 — quoting Mills' " Catalogue of 
 Honour," p. 209. 
 
 t See the Record Commissioners' "Ancient Laws and Institutes of Wales," 
 1841 ; and Wotton's " Leges Walliose." Howel died a.d. 948. 
 
has not yet become absolute property, but is held only by 
 payment of geld to the king; and this is still under the 
 control of the older custom, passing at the occupier's death 
 to all the men of his vill. But there is also hereditary land 
 — inalienable, indeed, for more than the owner's life, and 
 undevisable, but partible at his death among his sons, and, 
 when they in turn were dead, repartible among the grand- 
 sons, and again among the great-grandsons. " After that," 
 says the code, " there is no appropriate share of land." So 
 recent was the second form of partibility — so lately had 
 "Welsh gavelkind" arisen out of "Irish gavelkind" — that 
 the law will allow family descent only for three generations, 
 and agnati more remote than second cousins look upon each 
 other as merely gentiles. But even in this early stage, the 
 Welsh law of succession has developed two rules which 
 demand our attention. 
 
 One relates to the mode of making the partition among 
 the heirs, and the preference to which the youngest son is, 
 except in two cases, entitled. It appears thus in the 
 Venedotian^ — the older — form of Howel's laws (Book II. 
 cap. 12):— 
 
 " If there be buildings, the youngest brother but one is to divide the 
 tyddyns,* for in that case he is the meter ; and the youngest to have his 
 choice of the tyddyns, and after that he is to divide all the patrimony. 
 And by seniority they are to choose unto the youngest ; and that 
 division is to continue during the lives of the brothers." 
 
 But it is laid down that — 
 
 " If there be no buildings on the land, the youngest son is to divide 
 all the patrimony, and the eldest is to choose ; and each, in seniority, 
 choose unto the youngest." 
 
 And (II. 16. 8) the second exception to the youngest's 
 right is this : — 
 
 " Land of a hamlet is not to be shared as tyddyns, but as gardens ; 
 and if there be buildings thereon, the youngest son is not more 
 entitled to them than the eldest, but they are to be shared as chambers." 
 
 The Dimetian Code — the form that Howel's laws assumed 
 
 * "Tyddyns" is translated "tenements" by the Record Commissioners' 
 editor, and " acdificia " by the old Latin code. I learn from a Welsh philologist 
 that, at any rate at the present day, the word (like " messuage " in the stricter 
 sense) denotes a house that has a curtilage attached to it. 
 
 B 
 
in South Wales — betrays its later date by its minuter pro- 
 vision (II. 23, 1) :— 
 
 " When brothers share their patrimony between them, the younger 
 is to have the principal tenement, and all the buildings, of his father, 
 and eight erwa of land ; his boiler, his hatchet, and his coulter, 
 because a father cannot give these three to any one but the youngest 
 son, and though they should be pledged they never become forfeited. 
 Then let every brother take an liomestead with eight erws of land ; and 
 the youngest son is to divide, and they are to choose in succession from 
 the eldest to the youngest." 
 
 The fact that the family house, whenever it was more 
 than a village cot, fell to the youngest son is of great 
 importance, for it shows the origin of the other rule which 
 we have still to consider — a rule which carries us directly 
 to Primogeniture. 
 
 Hitherto we have always found land partible, the parti- 
 tion being either " Irish " among the clan, or " Welsh " 
 among the family. Both modes agree in limiting the par- 
 tition to males ; and they agree also — both being of Keltic 
 and prse-Christian origin — in ignoring marriage, and admit- 
 ting illegitimate as readily as legitimate kinsmen. The 
 time came for the Church to protest against this, and we 
 find in the Venedotian Code (II. 16, 2) :— 
 
 " The ecclesiastical law says again that no son is to have the patri- 
 mony but the eldest born to the father by the married wife. The law 
 of Howel, however, adjudges it to the younger son as well as to the 
 oldest, and decides that the sin of the, father, or his illegal act, is not 
 to be brought against the son as to liis patrimony.'* 
 
 The Welsh jurists saw their old law assailed in both its 
 essentials — its admission of younger sons, and its admission 
 of bastards. The Church* assailed the latter ; but the Con- 
 servative lawyers, in the heat of defence, were perhaps 
 mistaken in also attributing to her influence the simul- 
 taneous attack upon the former.f There a yet subtler 
 
 * The oldest MS. of this code omits the word " Ecclesiastical " altogether 
 from th'e passage ; but it is too often inaccurate for its omissions to have any 
 authority against the consent of four other MSS. 
 
 + It is certain, however, that in the Isle of Man she did make an effort in 
 that direction. A statute of 1643, indicating the equal right of all children to 
 
adversary than she was at work. The same social neces- 
 sities which made Primogeniture popular among feudal 
 vassals in the England of the twelfth century were now at 
 work to introduce it in Wales, though not aided there by 
 the military advantages which in England recommended it 
 also to those vassals' lords. The family finds its property 
 in danger, and the safety of the property must be effected 
 by its concentration. The danger arose, in the later English 
 days, from political changes; but in Wales mere legal 
 changes suffice to account for it. The family had but 
 recently won from the clan the right to the more valuable 
 inheritances ; too recently for the change not to be resisted 
 whenever circumstances might seem to favour the clansmen 
 in an aggression upon the usurpers. The children would 
 bo ousted, the home broken up, the hearth extinguished. 
 Then the ejected family must have recourse to law ; they 
 must sue for restitution of their patrimony, for Badenhudd, 
 the Re-uncovering of the fire on the father's hearth. At 
 this juncture the law recognises the temporary importance 
 of conjoint action ; and for-the purposes of the suit it com- 
 bines the brothers under the headship of the eldest. As 
 against their ejectors, they become a corporation. Thus the 
 Dimetian Code (II. 21, 4) provides : — 
 
 " Of two lawful present heirs, one is proprietary heir to dadenhudd 
 of the whole, and another is non-proprietor. The one, however, is 
 proprietor to dadenhiidd of the whole, as dadenhvdd of the whole is not 
 appropriate to any one except the eldest of all the brothers. The 
 priyilege of age of the eldest brother renders him sole proprietor for 
 dadenhudd of all AH the youngei' brothers are non- 
 proprietors as to obtaining dadenhudd of the whole, although every one 
 shall obtain his share." 
 
 Another passage, perhaps of still later date, from another 
 portion of the same code (II. 8, 107) supplements the rule 
 by providing that if the eldest son die before a patrimony 
 is shared, his eldest son shall take his place. 
 
 We might, at first sight, suppose this rule to be merely 
 
 the personalty, complains that, " contrary to this, the Church soinetimes used to 
 decree the whole team of oxen and the crop of corn to the eldest son ; which 
 commonly is more worth than all the rest of the goods." — Jeffoott's "Statute 
 Laws of the Isle of Man.'' 
 
 b2 
 
c 
 
 the retention of an old, yet unabandoned, system of family 
 government. But it is in the Dimetian code that the rule 
 occurs. Moreover, we have already seen that the old Welsh 
 law regarded not the eldest, but the youngest son as the 
 especial representative of the household, and the perpetuator 
 of the family hearth. Both facts show that we have here 
 a new reform; the beginning of what under more favour- 
 able circumstances might have become a legal revolution.* 
 
 But the current of circumstance that had carried Wales 
 thus far was not strong enough to carry her further, and 
 confer upon the Pen-cenedl not merely the defence, but the 
 dominion of his brothers' patrimony. It was only by 
 foreign violence that Primogeniture, centuries afterwards, 
 was forced upon her. 
 
 It is perhaps to clerical rather than to Saxon influence 
 that we must attribute the temporary effort made in the 
 Dimetian code (II. 23, 6) to admit women to a place in 
 successions. Their brothers were to allow the sisters a 
 gwaddol, or marriage portion, to consist apparently of cattle 
 and furniture, and not exceed in value half a brother's 
 share ;f and, in default of brothers, they were to inherit the 
 patrimony. Subsequent law allows a mother to be heir to 
 her daughter. J But these reforms had no support in Welsh 
 traditions or Welsh sympathies; the ancient laws, and some 
 lawyers even at the time of the Venedotian code, had re- 
 pudiated female succession (II. 15, 1). Hence we cannot 
 wonder that when next the veil is raised from Welsh juris- 
 prudence, at the time of the Statutum Wallise, all traces of 
 female rights have again vanished.§ 
 
 The admission of females and the use of Testaments are 
 
 * This principle of dacUnhudd reappears in the partitive descents of Jersey 
 in the rule which makes the eldest sou "Principal Heir," entitling him to hold 
 for his own benefit till the other cMldreu claim partage. 
 
 t "Ancient Laws," p. 256, with p. 47. J P. 617. 
 
 § The Kecord Commissioners' editor lays just stress on the importance of 
 studying the Welsh codes in their separate forms, as printed for the first time 
 in 1841. Our present subject illustrates his remark. Not only the English 
 writers (as Serjeant Euunington), but even Gans, in his great work, obtained 
 an imperfect view of the history of inheritance law in Wales, from having 
 access to that law only in Wotton's uuchronologioal codification. 
 
the only differences in the laAV of succession which we find 
 on passing from Wales to England, now Saxonised. Both, 
 doubtless, were due to ecclesiastical influence. In the 
 absence of testament, equality of partition was still the 
 rule, for it is impossible to credit the tradition of the 
 Mirror (I. 1, 3) that a military Primogeniture was esta- 
 blished by Alfred along with other feudal rules* Thus 
 we shall find the Laws of Canute (71st Law -f) directing the 
 division of the intestate's laen-land — after deduction of the 
 lord's heriot — among the widow, children, and next of kin 
 (as the case might be) " to every one according to the degree 
 that belongs to him." Again, the 7oth Law provides that 
 where a man dies fighting by his lord, no heriot shall be 
 taken, but the Avhole land and property shall go to the heirs 
 " and they shall shift it according to right." (Shifting — 
 the old German Landskiftan, modern Landscheutan — long 
 remained the Kentish phrase for a gavelkind descent.):]: 
 We must not suppose that the female children were 
 admitted (as is said to have been the case among the Danes) 
 upon an equality with the males, but only on failure of 
 them, the Saxons ever preferring the spear-side to the 
 spindle-side. But that the Keltic rule of absolutely ex- 
 cluding them was not followed is evident, as well from the 
 law admitting the widow as a successor to her husband, as 
 from the actual precedent of Aethelfleda's suit for her 
 patrimonial land.§ 
 
 * Ed. 1642, p. 16: — "Ordeine fuit que Fee de Chivaler deviendrait al 
 eigne fils per succession de heritage. Et que soccage fee fuist partable perenter 
 lea males enfans. Et que nul ne puissoit aliener de son heritage, foraque le 
 quart part, sans le assent de son heire. Et que nul ne puissoit aliener. son 
 purchase de aes heires, si assignes ne fuiaaent especesies en les donea." 
 
 t "Ancient Laws and Institutes of England," published by the Record 
 Commisaionera, p. 177 ; Wilkins' " Anglo-Saxon Laws," p. 144 :— " And gif 
 hwa cwydelease of thysum life gewite, uy hit thurh his gymeleaste, sy hit 
 thurh faerlio ne death, thonne ne tev se hlaford na mare on his aehta, butan 
 Ms rihte heregeata. Ac beo be his dihte seo aehtgescyft swithe rihte wife and 
 oildum and nehmagum, aelcum be tliacre maethe the him togebyrige." 
 
 t Lambard, Glossary, o. v., " Terra ex Scripto." 
 
 § Hist. Rames. 24 ; Hiat. Ellens. II. 8, printed by Gale ; and see Phillips' 
 "Geschichte des Angelsaohsiohen Rechts," p. 145. 
 
Under this law it was that those holdings " in paragio," 
 or coparceneries, arose which had not been forgotten when 
 Domesday Book was written. Herold and Godevert and 
 Aluric divide their father's demesne "aequallter et pariliter;" 
 and when, in King Edward's reign, Godevert dies, his sons 
 inherit jointly.* Again we find an estate that belonged to 
 "five brothers who held together, and were equal." f Again, j 
 in Surrey two brothers had held jointly under Edward; each 
 had a house of his own, "et tamen manserunt in eadem 
 curiL" 
 
 In Towns, indeed, an exceptional law of inheritance had 
 sprung up. The craftsman, unlike the farmer, could not 
 find work for his sons at home. As soon as the lads were 
 old enough to handle tools or to make bargains, they must 
 be ofi" to wherever an apprentice or a workman was needed. 
 (Guernsey law gives sons no pr^ciput if the land lie in town.) 
 It was not until 1326 that the judges succeeded in crushing 
 the obstinacy of the Towns, and keeping the young burghers 
 under disability till they reached the age of fourteen. The 
 sons who were thus early forisfamiliated, were no longer 
 associated with the work and fortunes of the homestead, 
 and no longer looked to it as their inheritance. Indeed, the 
 allotment on which the little cottage had been built was 
 usually too scanty to be worth partition. It passed un- 
 divided to the youngest son, the suus hceres, whom no 
 emancipation had severed from the paternal succession.§ 
 A similar distinction is growing up in Eussia. Since the 
 Emancipation Act of 1861 the enfranchised serfs, whilst 
 
 • Domesday Book, I. 375. 
 
 + Domesday Book, I. 168b. See also I. 7, 45, 46, 63b, 96, 111b. These 
 references I owe to Ellis's " Introduction to Domesday Book," p. 241n. On 
 the somewhat different meaning of Paragium in the noble fees of Normandy, 
 see Morgan's " England under the Normans,'' pp. 145 — 147. 
 
 J Domesd., I. 35b, cited by Freeman. 
 
 § Mr. Maine points out the working of the same principle in the Geilfine 
 Group of Brehon law. "Early Inst." p. 221; an,d Mr. Robertson, in the 
 Theelboora of early Friesland, "Scotland," II. 253, 266. According to Mr. 
 Morgan (p. 154), the principle of preserving the home life was carried so far at 
 Taunton, that there, even now (under a custom oaUed " Borough English "), 
 the widow is the husband's heir. 
 
9 
 
 retaining their old custom of undivided family ownership, 
 have very generally adopted the plan of making a partition 
 among all the adult male labourers in the family, irre- 
 spective of degrees of kinship, whenever the housefather 
 dies. The shares being equal, there is only one subject for 
 contention. Who shall get the house ? Who shall get the 
 rooftree ? It usually falls to the eldest son. But in the 
 western and southern provinces, where greater wealth has 
 produced a more developed civilisation — discarding, for 
 instance, the old Russian custom of employing women in 
 field labour — it has become common for sons to quit the 
 home during the father's life, and establish themselves in 
 households of their own. In districts where such a custom 
 prevails it has been folloAved, as in Saxon towns, by a rule 
 establishing the youngest son as the proper successor to the 
 family homestead.* Again, in Silesia, where the equal 
 partition, which the law enjoins, is usually evaded by 
 private settlements, it is upon the youngest son that the 
 settlement is usually made, the elder sons having left home 
 before the parent becomes so old as to desire to surrender 
 his position."f- 
 
 Saxon law, then, showed nowhere any tendency towards 
 Primogeniture, though it had advanced beyond British 
 custom by establishing our present rule as to the daughters' 
 rights, and probably by admitting in favoured burhs that 
 uUimo-geniture which our law still retains as an excep- 
 tional urban privilege. But in the private dispositions of 
 the great nobles the influence of the Continental aristocracy 
 became apparent before the Conquest, a degree of prefer- 
 ence for elder over younger sons being manifest in their 
 Wills.J 
 
 II. — Rise of the Law of Peimogeniture in England 
 
 AFTER THE NORMAN CONQUEST. 
 
 The landing of William was the beginning of the end. 
 A new feature of national life was introduced which, 
 silently and suddenly in the great estates, silently and 
 
 * Foreign OfRoe Report of 1870, II. CS. tibid, II. 133. 
 
 J Pearson, I. 269. 
 
10 
 
 slowly in the lesser ones, would transform the customs of 
 inheritance. William's charter to London seems to show 
 that already some fear was entertained, for the sole specific 
 promise it makes is upon this subject ; that " every child 
 shall be his father's heir after his father's day."* The 
 history of feudalism in Normandy before the invasion, and 
 even for a century later, is lost in utter obscurity,-|- and it 
 remains mere matter for conjecture to what extent Primo- 
 geniture had become established in William's Duchy before 
 he crossed the channel. But it may well have gone far 
 enough for a military statesman like William to have 
 detected its importance, and determined upon its extension. 
 The Salic law had excluded females from succession to 
 Terra Salica, or military land, but with no hint of any pre- 
 ference of age amongst males. The French crown had 
 passed to all the king's sons—including the illegitimate 
 ones — under the first two dynasties. But, according to 
 Montesquieu, Primogeniture had firmly established itself, 
 by the beginning of the eleventh century, as the French 
 rule of?, succession to noble titles and lands, whilst the 
 Imperial law still regarded them as partible ; and hence — 
 rather, it would seem from feudal analogy than from the 
 obvious reasons of public policy j — the crown descended by 
 Primogeniture from the commencement of the third race of 
 kings. An Assize of Jerusalem, framed under French 
 influence at the end of the same century (1099), makes all 
 noble fiefs indivisible — the king selecting the child who 
 should succeed — even amongst daughters ; § though parti- 
 bility in bourgeois descents always prevailed there till the fall 
 of the kingdom.ll But we can form no trustworthy inference 
 as to the extent to which Frank law was adopted within 
 the Norman duchy. Down to the time when the Normans 
 
 * Stubbs' "Select Charters," p, 82. See Pearson I. 270. London was 
 equally sedulous to obtain a confirmation of her custom of inheritance from 
 Hen. I. See Stubbs, p. 108 ; and Freeman, v. 468. 
 
 t Stubbs' Const. Hist., I. 2iS. 
 
 t " Esprit des Lois,'' xxxi. 32 ; Hdnault, " Histoire de France," ed. 1775, 
 I. 117—120. § Haute Cour., clvi., clvii. 
 
 il " Le Pldd&nt," ch. Si, 35 (1325—1350 A.D.). 
 
11 
 
 invaded Italy, a generation or two before the landing at 
 Hastings, hereditary benefices were certainly unknown 
 among them, though known in other parts of France as 
 early as 877. In Brittany, Primogeniture was not intro- 
 duced till 1185, even for nobles and knights.* 
 
 France, after learning from Lombardy the principle of 
 Feudalism, had developed it more rapidly than her teacher.f 
 The line of Capet had held the French crown for half a 
 century, when the Emperor Conrad in 1037 published in 
 Italy the great feudal constitutions which secured the fiefs 
 of the inferior vassals against any alienation by their lords, 
 and made them hereditary whenever the vassal left sons, 
 grandsons, or brothers, yet with no preference of age in 
 either degree. By his German constitutions, he excluded 
 women and bastards from the succession to lands of militaiy 
 tenure ; but not younger sons. The holders of noble fiefs 
 soon claimed a right of inheritance like their vassals ; but, 
 like their vassals, for all their sons. It is not until 1158 
 that we find Frederick Barbarossa introducing indivisibility 
 " as the rule of succession for Duchies, Countships, and 
 Marquisates. Even down to the French Revolution, an ordi- 
 nary German baron had to make a family settlement, and 
 get the consent of his younger sons, if he wished his 
 lands to descend to the eldest one alone. | 
 
 In England we have no written enactments of feudalism 
 to guide us. The chief result of modem researches into our 
 history has been the overthrow of the old belief that William 
 imported English feudalism full grown from Normandy. We 
 know now that Domesday contains no trace of militarj'- 
 tenure. We know that the feudal jurisprudence of the next 
 hundred years was developed step by step and side by side 
 in England and in Normandy. We know that the 
 administrative system which checked feudalism was de- 
 veloped in precisely the same way.§ 
 
 * Robertson, " Scotland Under Early Kings," I. 285, 302, 517. 
 + Pfeffel, "Histoii-e d'Allemagne," ed. 1766, I. 149—152, and 230 ; Schmidt, 
 " Histoire des AUemands," ed. 1785, III. 20 and 400. Palgrave, II. ccccxxxv. 
 t Selchow, "Elementa juris Germanici," ed. 1779, § 633. 
 § Freeman, v. 396. 
 
12 
 
 William concerned himself about feudalism only so far as it 
 affected the Ba/rones mei — the tenants-in-chief. What rules 
 he laid upon them, we can never fully know ; but about 
 two there can be no doubt. Their estates were not to be 
 aliened without his license.* Their estates were to descend 
 to their eldest sons alone. 
 
 We shall not find, indeed, nor should we expect to find, 
 any change taking place in the lands of the smaller owners 
 — the lands that escaped even military tenure when it soon 
 afterwards crept in elsewhere. Not only were most of 
 these pacific lands still the property of Saxons, certain to 
 stickle to the last for good King Edward's custom, but there 
 was no motive of policy — there cannot even have been 
 Norman precedent — to lead William to change that custom 
 into Primogeniture; and he never changed a custom cause- 
 lessly. We might rather conjecture that the partibility of 
 these lands would recommend itseK to him as a means by 
 which Saxon estates would soon safely fritter themselves 
 down — an euthanasia of Saxon power. But so subtle a 
 policy hardly belongs to the eleventh century. 
 
 The compilation of laws to which William's name has 
 been given, represents the Saxon rule of inheritance as 
 still in vogue (Law xxxiv.) : " Si quis paterfamilias casu 
 aliquo sine testamento obierit, pueri inter se hsereditatem 
 paternam equaliter dividant.f 
 
 But a sharp contrast to this becomes apparent when we 
 turn to the estates of the king's great tenants-in-chief. By 
 the help of Dugdale and of our numerous county histories, 
 
 * Freeman, v. 783, 794. 
 
 + "Ancient Laws and Institutes,'' p. 207. Our best authority, the Holkham 
 MS., unhappily ends too soon for us to say with certainty whether this law 
 gives the inheritance to the sous, or, as Hale claims, to all the children. The 
 reading given above is that of the next best authority, the Harleian MS., and 
 is corroborated by all the presumptions of legal history. The supposed 
 Ingulph, on the other hand, has " les enfans ; " but his version of the laws 
 is in French, and is too corrupt to carry much weight in a disputed reading. 
 Unfortunately Wilkins followed the Lichfield Chronicle, which similarly reads 
 " llberi ; " and historians following him have assumed as certain a version 
 ■which, if genuine, would constitute a grave historical problem. 
 
13 
 
 the descent of many of these may be traced from the very time 
 of the Conquest; and the priority given to age amongst 
 sons becomes apparent from the outset. Testaments, it must 
 be remembered, had ceased to operate upon lands. Hence 
 this preference of the eldest son is due to law, and not, as in 
 Saxon times, to the father's devise. The only fact that 
 bears even a semblance of the older system is the occa- 
 sional separation of the Norman from the English inherit- 
 ance; but this is explicable by the evident policy of the 
 King-Duke. 
 
 Thus, when the Earl of Arundel died, in 1094, his eldest 
 son, Robert, took his Norman earldom, and his second son, 
 Hugh, took the English one; but that this did not arise 
 from any rule of equality of partition is evident from the 
 fact that the three younger sons went without any inherit- 
 ance at all.* 
 
 So sudden and so important a change calls imperatively 
 for explanation. Primogeniture can scarcely have obtained 
 already such a hold in Normandy as to be the custom which 
 a Norman colony would inevitably adopt. Nor does the 
 aristocratic tendency which we have seen at work in the 
 Saxon mind go far to explain the revolution. We may 
 solve the problem if we recollect how quick William was to 
 discern the political tendency of institutions, and how ready 
 to change and shift them to the form most favourable to his 
 own supremacy. He detected the disintegrating tendency 
 of feudalism; and by the oath at Salisbury he saved the 
 English king from the weakness of continental lords-para- 
 mount. He saw the peril of governing through the 
 hereditary counts of France, or the vice-regal ealdormen of 
 England; and he remodelled the administration, to bring the 
 sheriffs into direct dependence on the Crown. He dis- 
 cerned the danger of continuing to identify the State 
 and the Church ; and he created the ecclesiastical courts, 
 
 * Dugdale's " Baronage," p. 27. A knightly inheritance is said in Fosbroke's 
 " Gloucestershire," II. 471, to have been divided, a century after the Conquest, 
 between Margaret de Bohun and her five brothers. But this is an error ; 
 Margaret only succeeded on the death of the last brother. See Rudder's 
 "Gloucestershire," p. 612. 
 
14 
 
 established the Royal supremacy, and defined the limits 
 of Papal interference. Such a statesman would not be 
 slow to discern the advantages he would derive from 
 Primogeniture. The fewer the leaders by whom his 
 army was contributed and controlled, the readier 
 and more united would be its action. The smaller the 
 dominant caste of nobility, the more accessible it would 
 be to regal influence. The wealthier the Norman families, 
 the less would be the importance of the Saxon houses. 
 William was not a man to perceive these advantages without 
 at once striking a blow to secure them. The danger which 
 might ensue to monarchy from the concentration of aristo- 
 cratic power in fewer hands, he guarded against by geogra- 
 phical divisions. The estates given to one great vassal were 
 scattered over twenty counties; those of another over 
 twenty-one. 
 
 Lord Chief Baron Gilbert reminds us* that a further 
 incentive to military Primogeniture was found in the 
 mediaeval physiology, which taught that to the eldest son 
 the best blood and spirits of the father were transmitted, 
 apparently on the principle by which Drj^den accounts for 
 Monmouth's superiority to Charles's other sons. Modem 
 statistics point in a different direction. The perils of 
 primiparity are so great, that amongst firstborn children the 
 proportion of idiots is half as large again as amongst their 
 younger brothers and sisters. There are physical as well 
 as moral dangers to warrant the Scornful Lady's con- 
 gratulation. 
 
 " I joy to hear you are wise. 'Tis a rare jewel 
 In an elder brother. Pray be wiser yet."+ 
 
 Too few of William's charters of gift to secular vassals 
 have been preserved for us to judge whether the continental 
 precedents were ever followed, and the new line of inherit- 
 ance specified in the grant. The few that we possess show 
 no change in matter or form from those of the Saxon kings. 
 
 * " Tenures," note xiv., Walkins' edition. Contrast Duncan " On Fecundity," 
 pp. 289—291. 
 
 t Beaumont and Fletcher, " Scornful Lady," Act iv. Sc, 1. 
 
15 
 
 As charters were not yet in use in Normandy, there was 
 little likelihood of the feudal forms being introduced. It 
 is enough for us to know that all the changes of ownership 
 were followed by a change of descent, and that both altera- 
 tions were effected without any legislative act. Equally 
 silently were the other peculiarities of English military 
 tenure created by Flambard in the following reign. 
 
 How soon the tenants-in-chief began to pursue a similar 
 policy with their own knights we can only conjecture. 
 They may have adopted the plan with readiness, the more 
 so as it set a new distinction between their lands and those 
 of the conquered race. But more probably its military 
 advantages would be less apparent to them than to their 
 far-seeing leader ; and some years, or even reigns, may have 
 elapsed before Primogeniture became — as within a century 
 of the Conquest it did become — the universal accompaniment 
 of even the humblest military tenancy. The establishment, 
 under Rufus, of the claim to wardship and marriage, would, 
 indeed, dispose lords rather to favour the custom of parti- 
 bility, which multiplied the chances of an infant's succession, 
 
 In this, as in all other points, the new system of land 
 tenure came in only by degrees. There was no one moment 
 at which a feudal system was imposed upon the country. 
 The seed which William sowed and Ranulf Flambard 
 watered, did not reach maturity until the time of Henry of 
 Anjou. From his institutions and from Glanville's code, 
 not from William's conquest, must the new era of English 
 law be dated. 
 
 The age of petty' wars and feudal exactions which fol- 
 lowed upon William's death, produced in the lands of 
 humbler men a change in the direction of Primogeniture. 
 England seemed a camp, and every man was his own constable. 
 Having little hope of protection from the central power of 
 the realm, men secured themselves by consolidating the 
 local power to which they could look for shelter. The 
 younger brothers of the yeoman, as well as the younger 
 brothers of the knight, preferred the shelter of a patri- 
 archate to the perils of independence. The experience of 
 
16 
 
 Wales is repeated in England, though it is against harsher 
 violence and by sterner weapons that the subjects of Rufus 
 and of Stephen claim their dadenhudd. 
 
 Thus within a short time of the Conqueror's death, 
 Primogeniture began to extend itself into the lands of 
 socmen. Sir Matthew Hale discovers one step of the 
 transition, a stage when " the whole land -did not descend 
 to the eldest son, but begun to look a little that way," in a 
 clause in the text-book which calls itself the "Laws of 
 Henry I." This clause seems to have been much misunder- 
 stood. A law copied from the Ripuarian code provides for 
 the succession of parents and collaterals if lineal heirs were 
 wanting, with priority for males over females, but ap- 
 parently no priority for age.* Then follows this law : — 
 
 " Primo patris feudum primogenitus filiua haheat; euiptiones vero vel 
 deinceps acquisitiones suas det cui magis velit. Si booland habeat 
 quam ei parentes dederint, non mittat eum extra cognationem suam.'' 
 
 Taking the whole passage together, the meaning of the 
 italicised clause is clear. It relates, not to descent like the 
 preceding law, but to the restraints on alienation. Inherited 
 land cannot be sold ordevisedbeyond the family. Land newly 
 acquired may, but with one exception; if it had been 
 received on the terms of feudal service, a strange tenant 
 cannot be forced upon the lord. This is simply equiva- 
 lent to Ixxxviii. 14: — "Nemo forisfaciat feudum suum 
 legitimis heredibus suis, nisi propter feloniam vel red- 
 ditionem spontaneam." Sir Matthew Hale, however, whom 
 Reeves and Blackstone seem to have copied without further 
 inquiry, punctuates the passage so as to make this clause 
 the conclusion of the preceding paragraph; and instead of 
 " primo," which would there be incongruous, makes sense by 
 reading "primum.""!" He also omits to notice that (as Mr. 
 Finlason points out) the whole chapter in which these para- 
 graphs occur does not purport to record the common law 
 
 * " Ancient Laws and Institutes," p. 249 ; Wilkins, p. 266. 
 
 + Prima is the reading both of AVilkins and of the Ancient Laws, and of all 
 their MSS. Yet Hale'a misquotation has obtained universal currency. 
 
17 
 
 but onty the provincial " Oonsuetudo Westsexe."* The only 
 connection of the clause with the history of descent would 
 seem, then, to be that it shows that near the beginning of 
 Hen. II.'s reign-f- a writer attached to the older elements of 
 the law nevertheless recognised that Primogeniture (true 
 and exclusive) prevailed wherever a strict feudal relation 
 had been established. This is no more than we leam from 
 Glanville immediately afterwards. Hale and Reeves must 
 have felt the difficulty of seeing how Primogeniture could 
 have been developed piecemeal, by the stepping stone of a 
 Prcecipuu7n; for Eeevesj refers the supposed "Primum 
 feodum " clause to knight-service lands, whilst Hale seems 
 to treat it as a part of the law of socage. The history of 
 law gives as little ground as does a priori reasoning, for 
 supposing that a limited privilege of this kind would 
 develope in time into exclusive Primogeniture. In every 
 mature system of Partitive Descent we find some such 
 provision for securing the continuity of the father's house- 
 hold, assuring fixity of tenure to that son, eldest or 
 youngest, whom the circumstances of the country identify 
 most closely with the family life. In Russia customs differ, 
 as we have seen, in the selection of the son who shall take 
 the roof -tree; but under both the customs, the widow 
 still remains in its shelter. The supposed "primum 
 feodum" would only be the counterpart of the youngest 
 brother's tyddyn in Wales, his covert del astre in Kent, the 
 " capitale messuagium " of Glanville's eldest Socman, the 
 " chefmois " of the Norman roturier, and the prsecipuum 
 which Scottish law in our own day concedes to the first of 
 the heirs portioners. 
 
 We have no authentic materials for the history of English 
 law between Domesday Book and the great treatise of 
 Glanville. The latter is our first picture of feudal law ; a 
 
 * The influence of Wesaex was less under Hen. I. than under the two 
 Williams. — Freeman, v. 160 — 162. 
 
 + The whole question as to the date of the " Laws of Henry I." is discussed 
 by Mr. Freeman ("Normau Conquest," V. 872). He considers them not earlier 
 than 1151. Mr. E. W. Eobertson refers them to John's reign. 
 
 J I. 76. 
 
18 
 
 picture of a wider field than its own words claim, for the 
 great Justiciar's rules reappear in the Begiam Majestate-m 
 beyond the Tweed, and in the Grand Coutumier across the 
 Channel. Glanville (1187-1189) writes after the lapse of 
 just a century from Domesday. Primogeniture is fully 
 established in knightly lands, and is making its way 
 amongst socagers. That its institution was due to military 
 considerations is made clear by the fact that in military lands 
 alone is it systematically established ; and that in them it 
 only holds good when the heir is of the military sex, or (if 
 we may suppose Bracton's rule to have been already adopted) 
 the inheritance is of value for strategic purposes. From 
 various motives, of personal safety, family pride, or aristo- 
 cratic example, it was spreading amongst socage tenants, but 
 to what extent it had yet gone Glanville's language scarcely 
 enables us to conjecture. " When the owner of a descendible 
 estate dies," he writes, " if he had an only son to be his heir, 
 it is universally true that this son succeeds to all the father's 
 property. If he left more sons than one, there arises the 
 question whether he was a knight or military tenant, or a 
 free socman. For if he were a knight or a tenant by knight- 
 service, then by the law of the realm of England the firstborn 
 son succeeds to the whole of his father's property, so that 
 none of his brothers can by law claim any part of it. But if 
 he were a free socman, the inheritance in that case will 
 be divided amongst all the sons according to their number 
 in equal shares, if this socage tenement tuere 2Mrtihle by 
 ancient custom; the chief messuage being, however, reserved 
 for the firstborn son in honour of his seniority, but on the 
 terms of his making compensation to the rest of his 
 brothers from the rest of the property. But if it were 
 not anciently partible, then by the custom of some places the 
 firstborn son will take the whole inheritance, but by the 
 custom of others the youngest son is heir."* From the 
 
 "■ Cum quia hsereditatem habens moriatur, si unioum filium lioeredem habuerit, 
 indistinct^ verum est quod filius ille patri suo succedit in toto. Si plures 
 reliquerit filios tunc distinguitur utrum ille fuerit miles seu per feodum 
 militare tenens, an liber sockmannus. Quia si miles fuerit vel per mililiam 
 tenens, tunc secundum jus regni Angliaj primogenitus filius patri succedit in 
 
19 
 
 priority of mention conceded to partibility, and, indeed, from 
 the whole tone of the passage, we must infer that in the 
 majority of socage tenements the traditionary Saxon rule 
 was still preserved, and that Primogeniture was merely a 
 local peculiarity like Borough-English. This inference is 
 confirmed by Glanville's more transient references to socage 
 descents. He speaks of " A plurality of heirs, of females, 
 for instance, in a militaiy fee, of either males or females in 
 free socage." — (xiii. 11.) Again — 
 
 " You must notice that if a man who possesses free socage 
 land has left several sons, who are all to be equally admitted 
 to the inheritance in equal shares, then it is universally true 
 that their father cannot out of his inherited estate, nor, if he 
 have no inherited estate, even out of a purchased one, make 
 an advance to any of the sons beyond his proportionate pre- 
 sumptive share of thewholeof thefather'sproperty."* Matters 
 may perhaps have gone so far that all legal presumption in 
 favour of partibility had ceased, and that now every plaintiff 
 who claimed as a socage heir had to show what form of 
 descent was customary in the lands in question. But it is 
 
 totum, ita quod nullus fratrum suorum partem inde de jure petere pote,st_ 
 Si vero fuerit liber sockmannus tunc quidem dividetur hajreditas inter omnes 
 filios, quot quot sunt per partes sequales, Bi fuerit socagium illud antiquitus 
 divisum; salvo tamen capitali messuagio primogenito filio pro diguitate 
 ^onecise suiB, ita tamen quod in aliis rebus satisfaciat aliis ad valentiam. Si 
 vero non fuerit antiquitus divisum, tunc primogenitus secundum quorundam 
 consuetudinem totum hajreditatem obtinebit ; secundum autem quorundam 
 consuetudinem postn^tus filius haeres est. Item si filiam tantum unam reli- 
 querit quis heredem, tunc id obtinet indistinct^ quod de filio dictum est. Sin 
 autem plures filias, tunc quidem indistinct^ inter ipsas dividetur hereditas, 
 sive fuerit miles sive sokemannus pater earum, salvo tamen primogenitas 
 filisB capitali messuagio sub formft prscscriptl — Qlanv. VII. 3. 
 
 * Plurium heredum conjunctio, muliorum scilicet in feodo militari, vel 
 masculorum vel foeminarum in libero socagio. — Glanv. xiii. 11. Sciendum 
 autem, quod si quis liberum habens socagium plures reliquerit filios, qui omnes 
 ad hsereditatem aequaliter pro scqualitus proportionibus sunt admittendi, tunc 
 indistinct^ verum est quod pater eorum nihil de hsereditate, vel de qusestu 
 si nuUam habuerit hsereditatem, alicui filiorum, quod excedat rationallem 
 partem suam qua; ei contingit de tota ha;reditate paternft, donare poterit. 
 Sed tantum donare poterit de hsereditate suft pater cuilibet filiorum suorum 
 de libero socagio in vitd sull, quantum jure successioiiis post mortem patria 
 idem consecutus eeset de eadem hsereditate. — Glanv. vii, 1. 
 C 
 
20 
 
 improbable that the change had yet got so far as to destroy 
 the natural presumption in favour of the ancient custom* 
 
 The warlike times of Richard I. have left us little legal 
 literature, and no direct evidence of the changes that were 
 going on in the custom of descents. But the crusade called 
 the great nobles abroad, and left humbler men a quiet time 
 of progress. The judicial institutions of Henry II. were 
 maintained and developed, and their influence, as we shall 
 shortly find, was hostile to the ancient custom. Hence, by 
 the outset of the following reign. Primogeniture had become 
 the prevalent custom of descent in socage lands. Under 
 John there is no longer even an equality of presumption 
 between the three customs; the brother who opposes the 
 right of Primogeniture tiow finds the burden of proof cast 
 upon his shoulders. 
 
 Before John had been two years on the throne, this change 
 in the law was fully established. In Michaelmas Term of 
 the second year of his reign (1200) a writ of rightf was 
 brought to decide the succession to some socage lands at 
 Gunthorpe in Rutlandshire. The plaintiflT, as we should 
 expect, was a younger brother; for the elder brother, having a 
 title under either custom, would seldom fail to take posses- 
 sion. Gilebert de Beivill, then, sues William de Beivill for 
 two virgatse out of their father's inheritance. The defendant 
 
 * The Scottish Segiam ' Majestatem, II. 27, copies the first passage cited 
 above from Glanville. Skene (a.d. 1597) thus translates it: — "Gif ony man 
 deceasis, and leavia behind him maa sons nor ane, either he is succomannus, 
 and haldis not his lands be service of ward, and then his heretage is divided 
 amangst all his sonns ; or he is miles, in the quhilk case, the eldest sonne sue- 
 ceedis in the hail lands quhilk heretably perteined to liis father." But he 
 adds — " This distinction is not observed be the practieque of this realm. Be 
 the quhilk the eldest son succeedis to his father ex asse — that is, to all and 
 haill his father's heretage and landes." If Scotch feudalism ever did recognise 
 these customs of partibUity — and it is a matter of controversy whether Segiam 
 Majestatem as a whole represents the actuill Scottish law of its time — the final 
 victory of Primogeniture was more rapid and more complete than south of 
 the Tweed. Scotland has no Kent. 
 
 t Rot. 7, in dorso. Printed in the "Abbreviatio Placitorum," p. 28, col. 2. 
 Hale (Hist. C. L., p. 187) cites this case, but mistakes the party for whom 
 judgment was given ; perhaps from " Qs." being the abbreviation of each 
 brother's name. 
 
21 
 
 pleads " That that socage was never parted nor partible ;" 
 and in the absence of evidence to oppose this plea, judgment 
 is given for the defendant. "Quia Gilebertus nuUam 
 probam perduxit, consideratuiu est quod Gulielmus eat 
 sine die et quietus." In later practice such a plaintiff would 
 have been required to aver, as well as to prove, the 
 partibility. 
 
 The establishment of this new presumption throughout 
 the rest of England would bring into vivid contrast the 
 permanence of the older custom in Kent. It is at this period, 
 when for the first time the partibility of Kentish lands has 
 sunk into a local peculiarity, that their peculiar name makes 
 its way into our jurisprudence. The records of proceedings 
 before the justices in Eyre in Kent in the fourth and in the 
 ninth ji-ears of John's reign* contain pleas by the defendant 
 in assize which describe his land as " gavelykinde." 
 
 It need hardly be said that this change of presumption 
 would have a powerful effect in destroying the partibility of 
 lands. When two, three, or four successive owners of the 
 same tenement had only left daughters or single sons as 
 their heirs, it would be difficult to produce evidence of 
 some earlier parted male descent to rebut the new presump- 
 tion. Three descents is the point to which we shall find 
 title traced in such cases in Edward I.'s Year Book. Yet in 
 those days, when the proportion of children, who reached 
 to adult life was, from bad hygiene, much smaller than 
 at presfent, we may fairly calculate that one estate in 
 every eight would pass through at least three descents, 
 without any owner being survived by a plurality of sons. 
 In other words, the two generations that had elapsed before 
 Bracton wrote had given time for the "rule in Beivill's case " 
 to have disgavelled at least one-fourth of the partible land in 
 the country. 
 
 Throughout that period the custom of Primogeniture was 
 steadily on the increase, favoured by circumstances the very 
 opposite of those which had favoured it a century before. 
 From Domesday to Glanville it had been resorted to by the 
 
 * Pasch. 4 Job. rot. 6, in iorio. Kane. ; Pasch. 9 Job. rot. 7. Kane; quoted 
 by KobiDSon in bis " Gavelkind." 
 
 c 2 
 
22 
 
 socagers in consequence of the decay of legal organisation- 
 From Glanville to Bi-acton it is forced upon the socagers in 
 consequence of the revival of legal organisation. The 
 establishment by Henry II. of a strong central tribunal 
 caused a rapid development of jurisprudence, whilst the 
 frequent visits of the itinerant justices carried the new 
 principles into every part of the country.* The fascinating 
 ideal of Roman law had just seized upon the minds of 
 Englishmen. The effort to simplify and systematise custom 
 was at its height. The metropolitan judge construed local 
 custom strictly, and, moreover, never carried it into other 
 neighbourhoods. Hence the uniformity of descent in free- 
 hold lands contrasts vividly with the eccentric customs of 
 copyhold inheritances, which did not fall under the jurisdic- 
 tion of a central court until two centuries after this. Still 
 stronger is the contrast with the endless complications of 
 the French provincial laws, over whose peculiarities no 
 metropolitan tribunal ever exercised supervision. 
 
 By a further paradox, the military change which set in 
 simultaneously with this judicial one was also, and as 
 unexpectedly, favourable to Primogeniture. The institution 
 of Scutage undermined the military system, for the sake 
 of which alone Primogeniture had been introduced. But 
 by so doing it removed from view the motive for establishing 
 a double system of descent, and by rendering this system to 
 all appearance an objectless complication, gave free scope 
 to the reforming spirit of the time. 
 
 Two illustrations of the ease with which estates passed 
 from the old custom to the new are to be found in those 
 early year-books which the Master of the Rolls has lately 
 reprinted from the Cambridge MS. In 1292 two younger 
 brothers suefthe eldest for their purparties of the inherit- 
 ance, and the history of the estate is carried back for three 
 successions. Their great-grandfather had six brothers. Two of 
 them had divided the inheritance with him ; but as this left four 
 unprovided for, it is not unlikely that the two entered only as 
 
 * Stubba' Const. Hist., I. 387—390, 596—601 ; Stubbs' Select Charters, 
 131 ; Digby, 54—57. 
 t De Mautely V. De Mautely, 20 Edw. I. p, 230. 
 
23 
 
 purchasers from their brother and not as co-heirs with him. 
 StUl this succession must have been regarded as questionable, 
 for when the eldest brother died, all the six younger "agreed 
 and granted for themselves and their heirs that the land was 
 not partible; and thereupon they levied a fine." This solemn 
 declaration settled the question for the time, and their eldest 
 brother's eldest son succeeded him, to the exclusion of 
 five younger sons. Again, in a similar action ten years 
 later,* the estate appears to have been parted in Richard's 
 reign, and again in John's ; but the father of the present 
 litigants had succeeded by exclusive Primogeniture. This 
 case is also valuable as showing that the analogy of the 
 Statute of Westminster the First had already been adopted, 
 and the accession of Richard taken as the limit of legal 
 memory; that date is here stated as the point beyond which 
 evidence of ancient partition need not be carried. 
 
 But the great turning point in jurisprudence was reached 
 on the day when the presumption of custom was reversed. 
 After this, the mere extension of geographical area involved 
 no modification in the rules of law. Bracton, seventy or 
 eighty years after Glanville, states the law of socage descent 
 in terms which vary less than might be expected from the 
 rules of Glanville. One change alone is prominent. If the 
 free socman's land is not partible, no one but the eldest son 
 can be heir of it. It is only in villein, socage that Primo- 
 geniture remains a mere "quorundam consuetude," contesting 
 the field with Borough English.-f- A little earlier he had 
 laid down,J in the words which Fleta copies, as the general 
 principle of inheritance law, that " If a man have more sons 
 
 * Sedman v. Sedman, 30 Edw. I., p. 56. 
 
 t " Si liber socmannus moriatur pluribus relictis heredibus et participibus, 
 si hsereditas partibilis sit et ab antiquo divisa, hscredes quotquot erunt habeant 
 partes suas aiqualea ; et si unicum fuerit meauagium, illud integre remaneat 
 primogenitd, ita tamen quod alii habeant ad valentiam de communi. Si autem 
 non fuerit hereditaa divisa ab antiquo, tunc tota remaneat primogenito. Si 
 autem fuerit sooagium villanum tunc oonsuetudo loci erit observ."inda. Eat 
 enim consuetudo in quibusdam partibus, quod poatnatus prsefertur primo- 
 genito, et e contrarift." — Bracton, fol. 76. 
 
 t Si quia plures haberet filios, jus proprietatis semper descendit ad primo- 
 genitum, eo quod ipse inventus est primo in rerum natura. — Eracton, 64b. 
 
2i 
 
 than one, the right of ownership always descends to the first- 
 born, since he was the first to come into existence." He 
 once speaks, as does Fleta in the corresponding passage, 
 of the partition of a tenement held by military service, in 
 terms which imply that even there a partition might 
 arise among male coparceners. How this is to be reconciled 
 with Glanville's absolute statement about knightly Primo- 
 geniture it is vain to inquire at the present day. Exceptional 
 local custom may in some rare instances have kept a 
 military fee partible; or the writers may have had in their 
 minds only a partition between sisters' sons; but the cor- 
 ruptness of the pi-esent printed texts of both Bracton and 
 Fleta renders it more probable that in " primogenitus " and 
 " primogenito " we have copyists' errors for " primogenita " 
 and " primogenitse," and that the partition in view was not 
 among coheirs but coheiresses. 
 
 Bracton* lays down a further rule, copied by Fleta and 
 by Britton,*!- which vividly illustrates the military' advan- 
 tage of Primogeniture. Where a partition takes place, the 
 manorhouse or castle which is the chief building of a county 
 or a barony, must not be parted. It must be given into the 
 sole charge of the eldest son or daughter, " for the right of 
 the sword, which suffers no division." But that the reason 
 of this rule lay in the military policy of having a single 
 leader at the head of a beseiged force, and not in any belief 
 in a birthright of the eldest child, is clear; as well from the 
 fact that the child who so received the castle had to pay a 
 compensation for the others' share of it, as from the further 
 rule that where there were more such chief buildings than 
 one, they should not all go to the eldest, but be given to the 
 children in succession so far as their number allowed. Primo- 
 geniture similarly obtains amongst daughters when an 
 hereditary office, like that of Constable of England, descends 
 to them ; the husband of the eldest alone can exec ate its 
 duties. This principle of the indivisibility of a public func- 
 tion is most prominently illustrated by the descent of the 
 royal crown to the eldest of the King's daughters. In the 
 
 * Fol. 76. + III. 8. 1. 
 
case, however, of mere titles of honour the principle of indi- 
 visibility, is applied without adliering to the principle of 
 Primogeniture. Bracton recognises, unlike Continental Feu- 
 dists, the right of female descendants to a title of dignity, and 
 gives it to the eldest daughter. But Henry III. seems to 
 have rejected in practice* the claim of female heirs; and 
 when later law recognised their right, it recognised also the 
 light of the Crown to choose any one of the daughters to 
 he the peeress. (But the lands will of course descend to 
 them all, as coparceners.) This power of selection represents 
 a stage through which the inheritance law of land has also 
 passed; for after the Continental Feudists had recognised 
 the hereditary nature of the vassal's tenancy, they continued 
 for some time to give the lord the right of selecting the son 
 who should succeed. Similarly the Canon Law, after 
 establishing the absolute duty of paying tithe, originally 
 permitted the payer to select the priest to whom his con- 
 tribution should be given.-f- 
 
 In one point Bracton's law of descent shows a marked 
 advance upon Glanville. In Henry II.'s time it was still 
 " magna juris dubitatio "J whether at a military tenant's 
 death his fief must go to his eldest living son; or whether 
 a grandchild by a predeceased elder son would have a prior 
 right. When Primogeniture comes to be regarded as the 
 fundamental principle of the law of descent, the right of 
 representation seems a necessary logical consequence. But 
 in earlier days, when men still regarded Primogeniture as a 
 mere means to an end, they could not fail to see that it was 
 the eldest descendant, not the descendant of the eldest line, 
 that would best serve the military purpose of the rule. 
 The principle of Representation established itself in France 
 whilst the controversy was still waging in England. Hence 
 whilst across the Channel Arthur was generally regarded as 
 Henry's lawful heir, and John as an usurper; John, though 
 already personally unpopular, found his claim recognised in 
 Normandy and England. But in spite of this great precedent, 
 
 * SeMen, "Titles of Honour," p. 881 ; and p. 644. 
 t On the whole of thia subject see Co. Litt. 165a, with Butler's notes. 
 • t Glanville, vii. 3. Bracton, 64b. 
 
26 
 
 English legal opinion ultimately adopted the Continental inile, 
 doubtless because the institution of scutage and the settled 
 state of the country had now destroyed the original motives for 
 Primogeniture. Hence Bracton gives it as settled law that the 
 descendant always represents the ancestor in his rights of 
 inheritance. 
 
 Mr. Barrington* has published some old French verses 
 which assert that in 1263 (about the time when Bracton was 
 writing) the law of Primogeniture, then " de tres long tenue" 
 in England, became the subject of a debate in Parliament. 
 It is contrasted unfavourably with the custom of France, 
 which prescribed 
 
 " Que les enfans d'un pbre nez, 
 
 S'engendrez fussent loyauement, 
 
 Partiasent a leur ygaument 
 
 Et selon I'ordre qu'ils devoient, 
 
 Comme cil de France faisoient." 
 
 Fleta, twenty years later, gives a mere repetition of 
 Bracton, and the language of an advocate of Fleta's time 
 puts socage Primogeniture on but a qualified basis. In 
 De Mautely v. De Mautely,f the eldest son's counsel only 
 urges that " The tenements are socage, it does not thereby 
 follow they are partible; for hi some 23laces as well the 
 tenements holden in socage as other tenements are governed 
 by the common law." But Britton, though very little later 
 than Fleta, expressly recognises Primogeniture as the general 
 law of land, saying without qualification, " Age is material, 
 because he who is the firstborn is admissible before the 
 younger son of the same father and mother."| 
 
 Indeed, the Statutum Walliae, enacted in A.D. 128-1!, a year 
 or two before the publication of Fleta, makes it clear that 
 by that time. Primogeniture was familiarly recognised as 
 the common custom of English inheritances. It treats the 
 partibility of land among males as a Welsh peculiarity, 
 sharply opposed to English usage.§ This partibility it per- 
 
 * " Observations on the Statutes," note on the Statutum Wallise. 
 + See above. 
 
 J Britton, vi. 2, 3 (Mr. Nichol's translation). 
 
 § 1 2 Edw. I : — " Quia aliter usitatum est in Wallia, quam in Anglia quoad 
 successionera hereditatis, eo quod hereditas partibjlis est inter heredes mas- 
 
27 
 
 mitted the Welsh to retain; a concession which they doubt- 
 less regarded as a proud national distinction, whilst Edward 
 saw in it a lasting security for their military impotence. 
 He let confusion rest upon their banners. But where only 
 civil policy was concerned, he fearlessly introduced the 
 English rules of succession, excluding bastards, admitting 
 daughters in default of sons, and giving widows a right to 
 dower. The gavelkind of Wales was henceforth identical 
 with that of Kent. 
 
 We have already said that the old Welsh gavelkind was 
 of Keltic origin, and is merely Irish gavelkind modified in 
 one point, though by far the most important point of all. 
 We may pass with a smile the patriotic theory of Somner* 
 that Wales and Ireland borrowed the custom in admiration 
 of the men of Kent. The independence of the two currents 
 of custom — apart from the common Aryan element — is 
 sufficiently marked by the three peculiarities which dis- 
 tinguish the Teutonic from the Keltic form,-]- and by the 
 difference of name. " Welsh Gavelkind " and " Irish Gavel- 
 kind " are the barbarisms of English jurists— phrases unin- 
 telligible in the countries which they concerned. The utter 
 inapplicability of such a name to the Rhein-ta-loon of 
 
 culos, et a tempore cnjus non extitit memoria partibilia extitit ; Dominua 
 Kex nou vult quod consuetude ilia abrogetur, aed quod hereditates remaneant 
 partibiles inter consimiles heredes, sicut esse consueverunt, et fiat partitio 
 hereditatis illius sicut fieri consuevit ; hoc excepto, quod bastardi non habeant 
 de cetero hereditates et etiam quod non habeant de cetero propartes cum 
 legitimis nee sine legitimis. Et si forte hereditas aliqua extunc pro defectu 
 heredis masculi descendat ad legitimas mulieres heredes ultimi antecessoris 
 sui inde seisiti, volumus de gratia nostra speciali quod eodem mode mulieres 
 legitimEC habeant propartes suas inde sibi in curia nostra assignandas, licet hoc 
 sit contra consuetudinem Wallensicam antea usitatam." And again : — " Quia 
 mulieres hactenus non extiterant dotatjc, rex conoedit quod dotentur." 
 
 * "On Gavelkind," p. 54. 
 
 + This is evident from the following summary : — 
 Gavelkind Land. Ibish. Welsh. Kentish. 
 
 Partible among Clansmen Sons Sons. 
 
 Bastards Included Included Excluded. 
 
 Daughters Excluded Excluded Postponed,, 
 
 Dower Refused Refused ■ Allowed. 
 
28 
 
 Ireland, sets a stumbling-block before the English reader at 
 the very outset of Irish histoiy. 
 
 But Gavelkind has long been a favourite field for theorists. 
 Indeed, the anomaly of its survival in Kent is a problem 
 that arrests the attention of every student. It has been 
 said that the "Welsh retained PartibUity in order that noble 
 blood might never be landless, since " every son is as good a 
 gentleman as his elder brother." It has been said that the 
 Kentishmen retained it because they were not gentlemen, 
 but plain farmers, indifferent to family dignity. It has been 
 said that Bishop Odo and his Normans forced it upon the 
 men of Kent. It has been said that it was preserved in the 
 teeth of the Normans by the daring of the men of Kent at 
 Swanscombe. It has been said that Wales and Kent retained 
 it for military reasons, one being exposed to Ireland and the 
 other to France, " that eveiy man might have means to resist 
 the enemy." Whilst it has been observed as plain matter 
 of fact, that in Kent, as in the rest of England, partibility 
 never extended to military land. 
 
 But the history of Primogeniture remains gravely defec- 
 tive, so long as the unique position of Kent remains unac- 
 counted for. It is an anomaly of the highest value for the 
 historian; for it enables him to test his general theory by a 
 strict application of the Method of Difference. The popular 
 explanation,* which refers this peculiarity, the Kentish sur- 
 vival of Saxon custom, to the special favour of the Conqueror, 
 itself requires explanation. It is quite possible that beneath 
 the fable of the moving wood of Swanscombe some true 
 story is concealed. It is quite possible that William did 
 covenant with the men of Kent for the preservation of their 
 Saxon laws. It was a covenant which he made with other 
 Englishmen. It was a covenant which he confirmed by 
 charter and by statute. But the difiiculty comes back in 
 another form. Why was the covenant kept in Kent, when 
 it was forgotten everywhere else?i" 
 
 * Stephen's Blackstone, I. 222. 
 
 + Palgrave (Hist. Norm, III. 364) accepts the "substantive truth" of the 
 story. But Mr. Freeman (Iforman Conquest, III. 538n) observes, " There is 
 nothing to show that Kent was better treated than the rest of England, As 
 
29 
 
 The fact is that William dealt with the land of Kent as 
 he dealt with the land of every county. What he gave to 
 military tenants, he gave to descend by Primogeniture — and 
 every manor mentioned in the Domesday survey of Kent 
 was held by military service, except those that lay in 
 frankalmoign. What he left in the hands of the old owners, 
 he left to descend by the old custom. It was only in later 
 days than William's that any distinction arose between Kent 
 and the rest of England: In the country at large, as we 
 have seen, Primogeniture was introduced into military lands 
 from above, and avowedly, by the ambition of the superior as 
 he granted each new tenement ; but into socage lands, from 
 below, and silently, by the timidity of the socagers as they 
 sought each other's protection. In Kent it was the socage 
 lands alone that escaped Primogeniture. Was there any- 
 thing peculiar in the position of the Kentish socagers? 
 
 There was. They had less danger to fear, and far more 
 strength to resist danger, than their brothers in any other 
 part of England. Even at the date of Domesday, the 
 cultivators of Kent held a far different position from that of 
 their brethren in other counties. In name alone had the 
 " ceorl who sat upon Gafol-land " sunk into a villein. He 
 is stiU alodiarius, and so can sell his land without licence 
 from the lord; though he may be outlawed if he quit it. He 
 has not lost his place in the freemen's hundred-moot. The 
 villani of Kent were free socage tenants, and the 
 bordarii free husbandmen; only the cotarii and servi 
 were in the same position of serfdom as the villani 
 of other counties,* In other words, three-fifths of 
 the population of England were in a state of degra- 
 dation, in which only one-eleventh of the Kentish folk lay. 
 By Edward I.'s time it had become a proverb that " there 
 
 it was put under Odo, it was, perhaps, treated a little worse." And again 
 (v. 810), "Nothing better upsets the legendary belief that Kent obtained 
 special privileges from William than a glance at the Kentish Domesday. .... 
 At the time of the survey there was not a single private English tenant in 
 capite in all Kent." 
 
 * Elton, "Tenures of Kent," pp. 121, 134, 147, 148.; E. W.Robertson, 
 " Scotland under her Early Kings," II. 166, 264-6. 
 
30 
 
 are no villeins in Kent;" and the son of a villein, if born 
 there, became free.* By far the larger portion of the soil 
 "was cultivated by freeholders; everywhere else the great 
 body of the cultivators were the mere playthings of the 
 lord's will. Hence the paucity of copyholds in Kent at this 
 day. In Domesday Book these freeholders, the 6597 villani 
 and 3118 boi^darii, hold land to the extent of 2332 sulings, 
 or ploughlands.f All the rest of the inclosed land of the 
 county, all the demesnes of the military and the spiritual 
 lords, amount only to 680 sulings.J 
 
 But the free cultivators had another advantage. The 
 lords of Kent were less terrible than those of other counties. 
 In the Domesday of 1086, as in that of 1876, Kent stands 
 out as the shire of pious uses. Besides the Church's vast 
 possessions in frankalmoign, she was the great military 
 tenant of the county. Of the 278 knights' fees holden in 
 capite, 108 were hers.§ Whatever were the vices of a 
 spiritual rule, it was not one from which the tenant need fear 
 violence or bloodshed; it was not a rule of wanton wrong. 
 
 Finally, the geographical position of Kent was a safeguard 
 to the socager. The oppression in which a feudal lord could 
 safely indulge in a remote shire became too perilous within 
 a short march of the metropolis, and on the highway of 
 armies to the Cinque Ports. It is a signiiicant fact that 
 nowhere in England is the hold of Primogeniture so limited 
 as in the counties which lie between London and the 
 Channel seaboard. Gavelkind is supreme in Kent ; Surrey 
 and Sussex are the strongholds of Borough English.|| 
 
 * So held in 30 Edw. I. ; and see Y. E. 7 H. 6, 33a. 
 
 + Elton, pp. 121, 134, 147, 148. — Mr. Elton points out the errors into which 
 Lingard (I. 372) has fallen on this subject. 
 
 J It was even said judicially, in 18 Edw. II., that "all the land in Kent is 
 holden in socage ;" but this (even allowing for the creation of petty serjeantiea 
 and the diminution of frankalmoign, in the intervening centuries) was, of 
 course, an exaggeration. 
 
 § Hasted, in the eighteenth century, computed that the episcopal and other 
 corporations held lands in Kent (independently of glebes and tithes) to the 
 value of £80,000 a year (Hist. Kent, I. 301). 
 
 II No less than 143 manors in Sussex are said to preserve this custom, thus 
 making it " almostthe common law of that county." Mr. Corner, who reckonp 
 136 such manors in Sussex, only found 183 in all the rest of England. 
 
31 
 
 These three causes combined to preserve in Kent the 
 Saxon law of inheritance. The unusual -predominance of 
 socagers among the freeholders who declared folkright in 
 the shiremote, sufficed to presei-ve also other Saxon customs 
 which stood in less peril. The lord could claim no fine on 
 alienation. The lord could not eject the sons of the 
 convicted felon. In Bracton's time* socage tenants all 
 over England were regarded as minors until fifteen. The 
 influence of the Proculian rule reduced this, before Little- 
 ton's day, to fourteen. But in Kent the socage majority 
 among the suitors of the shiremote was strong enough to 
 outvote the change. On this point, at any rate, the differ- 
 ence of law could not be due to any conduct of William the 
 Conqueror. "* 
 
 Where the influence of the socagers and their shire- 
 mote did not extend, gavelkind became as obsolete in 
 Kent as elsewhere. The mihtary tenants adopted Primo- 
 genitui-e. Nay, when the socagers themselves accepted 
 demesne land in villein tenure, they had at first to submit to 
 Primogeniture. The men who held of the Priors of Canter- 
 bury in villein socage, who could sell neither their lands nor 
 their bullocks without licence from the monastery, inherited 
 those lands by the knightly rule; "antenatus succedet in 
 totum." By the end of Richard II.'s reign, however, 
 gavelkind had spread itself over every kind of ancient socage 
 land throughout the shire. 
 
 The security which the socagers in Kent derived from 
 their numbers, was possessed also throughout England by 
 the burgesses of towns. Here, again, there was no military 
 service which could lead the lord to desire Primogeniture, 
 for the firnia burgi bought oiF all exactions. A Borough 
 English, or in plainer phrase, a Saxon town, thus left 
 unaffected by either of the currents of circumstance that 
 were spreading Primogeniture in the rural districts, would 
 preserve its ancient custom unimpaired. Hence arose vivid 
 contrasts like that which was visible in Edward III.'s time 
 at Nottingham,"!- and which was still perceptible there in the 
 
 • Fo. 86. 
 
 .+ y. B. 1 Edw. III. 12a. Compare the Domesday (179) account of Hereford 
 t— a place whsre Borough English is still strong. 
 
32 
 
 eighteenth century. In the old hui'gh Engloyes the land 
 went on descending to the youngest son, whilst beyond its 
 "West end a new settlement had sprung up since the Norman 
 Conquest, and in that burgh Frauncoyes Primogeniture 
 prevailed. It' must be remembered that the old Saxon right 
 of devise was also preserved in towns, so that a home-keeping 
 elder son would not be left destitute. 
 
 Yet from time to time Primogeniture made headway even 
 in Kent. Record remains of at least two busy periods of 
 disgavelment — the thirteenth and the sixteenth centuries. 
 The earlier one is due to regal prerogative; the latter to 
 statute. The extension of Primogeniture to socage lands 
 was avowed as an object of statecraft, and political 
 authority was exercised directly on its behalf. The 
 king would turn into knight service the gavelkind lands 
 of his tenant-in-chief, or would ratify a corresponding 
 conversion made by a mesne lord. Nay, John gave to the 
 Archbishops of Canterbuiy, by an anticipatory charter, full 
 power to make such conversions whenever they should will. 
 By the law of that time,* all such changes of the tenure 
 destroyed the custom of partibilit3^ The gavelkind lands 
 which John de Cobeham held of mesne lords in Kent 
 were brought under the law of Primogeniture by Edward I. 
 The charter purports to make this change solely by way of 
 special favo\ir and honour, in return for Cobeham's services 
 to the crown. But it is a significant fact that its only 
 recital is not a statement of those services, but an 
 impeachment of gavelkind on grounds of pubHc policy. 
 The passage stands in vivid contrast with the Statutum 
 Wallise. Edward's power lay in the strength of Kentish- 
 men and the weakness of Welshmen. From Kentish 
 gavelkind, says the king, "it hath frequently come to pass 
 that lands and tenements, which whilst in single hands and 
 unparted were large enough to give strength to the realm 
 and decent support to many dependents, have presently 
 been torn and split amongst joint heirs into so many 
 parts and parcels, that at last no man's share was large 
 enough for his own support."f 
 
 * Kot in later times. Y. B. 26 H. VIII. 4b. John's charter is of 1202. 
 + The charter is given in Robinson's work on Gavelkind, p. 77 : — "Ad 
 
33 
 
 But the next genei-atlon saw this prerogative abandoned. 
 Early in Edward II.'s reign* a plaintiff in the Common 
 Pleas boldly asserted in his replication the invalidity of a 
 charter by which Henry III. had ratified a similar con- 
 version of gavelkind lands, made by a seignoress who held 
 under a treble subinfeudation. Before the question could be 
 argued, Edward addressed to the judges a royal writ in 
 assertion of the prerogative, citing Cobeham's charter as a 
 clear precedent, and declaring such conversions to have 
 an evident object and to be for the necessary interest of the 
 realm. But legal opinion must have become strong against 
 the prerogative, for the justices remained unconvinced; they 
 avoided the royal displeasure by giving no judgment for 
 either side. The prerogative was never exercised again, 
 even on behalf of tenants-in-chief. 
 
 A century and a-half elapsed before Parliament began the 
 work of disgavelment. There were in 1439, according to the 
 preamble of 18 H. VI., c. 2,-f not more than forty men 
 in Kent holding lands that were not gavelkind. In 
 1496 Sir Richard Guldeford's lands, and in 1524 Sir 
 Henry Wiat's were disgavelled by private Acts. But 
 immediately after the dissolution of the monastex-ies a more 
 sweeping measure was passed. The favourites whom the 
 king endowed out of his Kentish spoils would not let 
 the families they were founding be dissolved by Kentish 
 partitions. I The Act which was passed for their protection 
 
 regiaj oelsitudinia potestatem pertinet et offioium, ut partium suarum leges efc 
 consuetudines quas justas et utiles censet, ratas habeat, et observari faciat 
 inconcussas ; illas autem quse regni robur quandoque diminuere potius quam 
 augere aut conservare videntur, abolere couvenit, aut saltern in melius apud 
 fideles suos et bene meritos de speciali gratis commutare ; cumque ex diutina 
 consuetudine qua; in comitatu Kanoia: quoad divisionem et partitionem 
 terrarum et tenementorum quae in gavelikendam tenere solent, frequenter 
 aociderit, ut terrse et tenemeuta qua; in quorundam manibus Integra ad 
 magnum regni subsidium et ad viotum multorum decenter sufficere solent, in 
 tot partes et partioulas inter cohajredes postmodum distraota sunt et divisa, 
 ut eorum nuUi pars sua saltem sufficere possit ad victum." 
 
 * Gatewyk v. Gatewyk (6 Edw. II. 80, according to Eobinson). 
 
 + Mr. Elton gives, however, some reasons for supposing that this estimate 
 ■was not quite exhaustive. 
 
 J It must be remembered that the Statute of Wills was not yet passed, and 
 that the Kentish custom of devise was not established as valid till Chas. II.'s 
 reign. Intestate succession was still universal, except as regarded uses. 
 
34. 
 
 was important enough to be placed among the public 
 statutes (31 Hen. VIII., c. 3); it disgavels the lands of 
 thirty-four proprietors. Early in Edward VI.'s reign a 
 further disgavelling Act was passed, covering the lands of 
 forty-four proprietors ; and three Acts of slight importance 
 followed, the latest being in 1624. All these statutes aimed 
 solely at the introduction of Primogeniture, and leave the 
 other gavelkind customs still in force.* 
 
 The work of disgavelment was hardly over when, by the, 
 indirect operation of the local law of Evidence, an opposite 
 process began. In Kent the ancient presumption in favour 
 of the partibility of socage land had never been abandoned. 
 Hence, no eldest son can establish his exclusive right except 
 by giving express evidence of previous exclusive descents, or 
 by showing a statutory disgavelment. But as the Acts 
 only name the proprietors without describing their estates, 
 the identity of the disgavelled land can seldom be established 
 after the lapse of three hundred years. Nor is much help 
 usually obtainable from evidence of previous descents, since 
 intestacy has long been rare in England, and only 
 half the cases of intestacy (those where the nearest 
 degree of heirs included more than one male) would afford 
 any evidence in point. The field of Primogeniture in Kent 
 has, therefore, long been narrowing, under the operation of 
 the same cause which from the year 1200 has been extending 
 it in the rest of the country — the rule of judicial presump- 
 tion. Even in Charles II.'s time the process was already 
 observable ;•[■ in 17-iO Robinson declared that there was then 
 nearly as much gavelkind land in Kent as before the dis- 
 gavelling Acts began; and the evidence given before the Real 
 Property Commissioners of 1830| went to show that the 
 known sphere of Primogeniture in Kent was by that time 
 quite as narrow as it had been four hundred years 
 previously.§ 
 
 * " Solement a toller le partibility del estate, per que mults families per 
 division del leur estates fueront reduce a plus base degree." — Wiseman v. 
 Cotton (1 Lev. 79). 
 
 + 1 Sid. 138. 
 
 t First Report, pp. 366 and 808. 
 
 § But it is possible that the documents which we owe to the Record Com- 
 missioners may now serve in some cases to ungavel parts of these estates 
 
35 
 
 It was not in Kent alone that Henry VIII. set himself to 
 spread Primogeniture. In 1541, the year following his 
 great Kentish statute, Primogeniture was established by 
 32 Hen. VIII., c. 9., throughout the Soke of Osweldbeck, in 
 Nottinghamshire, the lands of which had hitherto been 
 partible. Two years later it was carried into Wales. 
 
 The Welsh custom had been expressly assailed a little 
 before this, when in 1536 the union of England and Wales 
 was re-declared — (27Hen.VIII.,c.26). Of course in the general 
 extension of Primogeniture it could not fail to be noticed 
 that the policy of Edward I. was out of date. Welsh 
 patriotism had decayed. The Principality might safely be 
 reorganised upon the English model. Accordingly, by 34 
 and 35 Hen. VIII., c. 26, s. 91, it was finally enacted that " all 
 manors, lands, tenements, messuages, and other heredita- 
 ments, and all rights and titles to the same in any of 
 the shires of Wales, are to be taken, enjoyed, used, and 
 holden as English tenure to all intents, according to the 
 common laws of this realm of England; and nqt to be 
 partible amongst heirs male after the custom of gavelkind as 
 heretofore in divers parts of Wales was used and ac- 
 customed." A memorial of that custom survived, however, 
 to our own day, in the petty holdings of less than an acre, 
 often found in Wales, mere fragments of a single field.* 
 
 This steady course contrasts vividly with the policy 
 which postponed till 1777 the final establishment of Primo- 
 geniture in England's more westerly Keltic conquest. From 
 the time of Henry's conquest of Erin, the English settlers 
 had introduced within the pale their own system of descent ; 
 the written code which John is said to have deposited 
 in Dublin was probably a copy of Glanville. But 
 the Irish had retained the two systems of Tanistry and 
 Partition, with which Mr. Maine's last work has made 
 modern readers familiar. Both disappeared in James I.'s 
 reign under the hand of the English judges ; whom the 
 imperative political necessity would have made indifierent 
 
 again. On this, and indeed upon the whole subject of Gavelkind, Mr. Elton's 
 elaborate volume, "The Tenures of Kent," makes invaluable additions to the 
 scantier materials of Somner, Taylor, and Robinson. 
 * Hansard, oxxxi. 485. 
 D 
 
36 
 
 to the fact, could they have foreseen it, that a wider juris- 
 prudence, "looking before and after," would detect in 
 the one custom the germ of English Primogeniture, and 
 in the other the germ of Kentish gavelkind. The partitive 
 succession of the clansmen was declared an invalid custom in 
 1605 ; and two years afterwards the elective succession of 
 their chieftains was similarly abolished. Henceforth the 
 lands of the Sept, of its Canfinny, and of the English 
 invader, must all descend alike by the rule of Primo- 
 geniture. 
 
 But the sun was to go back upon the dial. The 
 uniformity thus created under the first Stuart was not 
 to survive his dynasty. In the eighteenth century 
 there were two nations in Ireland, for there were two 
 religions. One ruled the other, and the rulers' aim was 
 not the wealth but the poverty, not the consolidation but 
 the disunion, of their subjects. The policy by which William 
 had broken up the Saxons, and Edward the Welsh, was now 
 adopted by the Protestant against the Catholic. By 2 Anne, 
 c. 6, s. 10 (Irish), under the plea that the fear of disherison 
 prevented the conversion of young people to Protestantism, 
 the lands of Papists were made descendible among " all and 
 every the sons share and share alike," unless the eldest son 
 declared himself a Protestant.* The division was imperative, 
 and no settlement or devise could prevent it. The family 
 estate thus broken down could not be raised again by an 
 ambitious son, for Papists were by the same Act (s. C) 
 declared incompetent to acquire lands by purchase. It was 
 not until seventy years afterwards that, by 17 and 18 
 Geo. III., c. 49, all these partitions were abolished, and 
 Primogeniture finally established throughout Ireland.f 
 
 Our survey has carried us throughout the lay freehold 
 lands of England. But in one-third of England, if we may 
 trust the calculation attributed to Lord Coke, the rise of 
 
 * Some writers seem to have overlooked the fact that this is not the resto- 
 ration of the Irish custom, but an introduction of the Kentish one. 
 
 t Gans actually supposes the Keltic custom to be still in force in Ireland 
 " Die Irische Sitte hat ebenfalls noch heute das Becht des Gavelkind[behalten." 
 (" Das Erbrecht," IV. 368). This would be startling, if it were not that an 
 Edinburgh Seview (Vol. 40) seems equally at sea upon the subject. 
 
Primogeniture remains still nntraced by us. Copyhold 
 lands, as we have already said, were not the subjects of an 
 ownership that the king's courts would recognise, until the 
 fifteenth century. Yet long before this the forbearance, or 
 the policy, of the lords had accustomed them to permit the 
 heir of the tenant in villeinage to purchase admittance 
 to the lands of his deceased ancestor. By what step that 
 custom spread from demesne to demesne we shall never 
 know, unless before moths and worms have done their work 
 the last great hiding-place of English law be explored, and 
 the rolls of our manor-courts given to the hands of the 
 printer. It suffices for our present purpose to know that the 
 claim of inheritance had been conceded in nearly all manors 
 — in some it remains to our own day foraially unrecognised 
 — at a time when it still could be asserted only by petition 
 to the lord, and had no colour of legal right. Hence, when 
 the Chancellor undertook — and, till the eighteenth century, 
 no court but his did undertake — to enforce the claim as a 
 right, he found systems of rules for the devolution of the 
 claim already firmly established. It was inevitable, as we 
 have seen, that schemes of descent growing up thus uncon- 
 nectedly, the fruit of the prejudices or caprices of thousands 
 of arbitrary lords should exhibit every eccentricity of rule. But 
 the eccentricities had taken root too firmly to be eradicated. 
 Lawyers contented themselves with a Prsesumptio Juris, 
 applying their own familiar system where no evidence of 
 contrary custom appeared. By the side of manors which 
 admit all the sons and all the daughters, manors which 
 admit all the sons, manors which admit only the youngest 
 son, manors which admit only the youngest of either sex, 
 and manors which admit only the eldest of either sex, 
 we find a predominant majority of manors where the rules 
 of the common law hold sway. In our time, indeed, the 
 Legislature has caused an extension of these rules to some 
 few of the lands originally subject to the rarer customs. By 
 the Copyhold Act of 1841 (4 and 5 Vic, c. 35, s. 79), it is 
 provided that the lands included in any commutation made 
 •under its powers are "to cease to be subject to the custom of 
 d2 
 
38 
 
 Borough English or gavelkind or any other customary 
 descent" (unless they are Kentish land), and to descend 
 thencforth like free and common socage. The lands that 
 thus cease to follow the manorial custom nevertheless 
 remain copyhold. Land that by enfranchisement ceases to 
 be copyhold, of course ceases to be descendible by any copy- 
 hold custom, and must descend as socage. The Copyhold 
 Act, 1852, s. 34, confirms this principle. The area of eccentric 
 copyhold descent is steadily diminishing, in consequence of 
 these enfranchisements and commutations; eight thousand of 
 which have been effected by the Copyhold Commissioners, 
 in addition to the numberless instances where the change 
 has been carried out by lord and tenant alone. 
 
 A rarer kind of base tenure remains still for discussion, 
 and it is one which curiously illustrates an important 
 principle of juridical history. A constant peril of customary- 
 law is that of spontaneous depravation by false analogy;* as 
 where sanitary rides swell into a ceremonial code, or class 
 distinctions harden into caste. The peril is greatest when 
 the custom is not of native growth, for among foreign 
 surroundings the clue to its original principle is usually lost. 
 Thus it was when in the sixteenth century the customary 
 freeholders of Cumberland and the adjoining counties 
 established their right of property against their lords. The 
 tenant-right which had been their only advantage over the 
 mere tenants at will now became a right to retain the land 
 itself and to transmit it to their heirs. But to what heirs ? 
 The custom of Primogeniture, dominant among all other 
 classes of landowners, was the natural model for their adop- 
 tion; they adopted it. Thus, starting from the outset with 
 the idea that priority of birth entitled one child to exclude 
 the others, and knowing nothing of the causes which 
 had created and had limited that rule, they naturally applied 
 it universally. In the peaceful England of Elizabeth, there 
 was nothing in the landowner's duty, either to lord or 
 kinsfolk, that would emphasise the distinction of sex. The 
 eldest son has a better right than his brothers. The eldest 
 daughter must have a better right than her sisters. Had 
 * Maine, "Ancient Law," pp. 18 — 20. 
 
39 
 
 not the good queen herself been wholly set aside by Mary ? 
 Just as the English judges, not knowing the history of the 
 rules they were copying, excluded the consanguineous half- 
 blood as well as the uterine ; so the Northcountrymen, from 
 similar ignorance, excluded the younger daughters as well as 
 the younger sons. The exotic custom was extended by 
 false analogy.* 
 
 It is probably to the independent operation of the very 
 same cause that we owe the establishment of the same 
 extreme form of Primogeniture in the Isle of Man.^f^ There 
 the tenants did not acquire a legal right of inheritance in 
 lieu of their old straw tenure until the Act of Settlement, in 
 1703. Their intercourse with the mainland was too much 
 with counties where, like Westmoreland and Lancashire, 
 customary freeholds were little known, for us to suppose 
 the Primogeniture of daughters to have been copied by 
 them from Cumberland. In Holland the same abnormal 
 rule prevailed ; but the foreign influence which created it, 
 operated not at the commencement but at the conclusion of 
 the history of Inheritance Law. In Holland, Feudal Law 
 never reached the same stages of development through 
 which the Feudists elsewhere carried it ; the Proper Feud 
 remained to the last presumably intransmissible to females. 
 But in the more modem grants it sometimes happened that 
 the grantor expressly declared that females might succeed. 
 The foreign custom prematurely forced in such cases upon 
 Dutch law did not take the natural shape that it assumed 
 in the foreign countries, and in the inferior Dutch lands, 
 where it had grown up normally. There all females of 
 equal degree inherited together. In the Proper Feud, 
 Dutch law insisted upon Primogeniture, whatever were the 
 sex of the heir.| 
 
 With frankalmoign lands we have no concern. The 
 
 * Third Eeport of the Real Property Commissioners. Appendix, p. 4. 
 
 t Jeffoott's "Statute Laws of the Isle of Man," p. 116. In 1777 Primo- 
 geniture was extended to purchased lands, which had previously been treated 
 as personalty. 
 
 J See Neostadt, "De Feudi HoUandici Successione," Lugduni, 1620, 
 pp. 6, 15. 
 
40 
 
 lands of a deathless owner lie beyond all laws of inherit- 
 ance. But there remains for consideration one form of 
 landed proprietorship transmissible to successors, though, 
 unlike all of which we have spoken as yet, not transmis- 
 sible in perpetuity. Unlike them, again, it is never trans- 
 missible by Primogeniture. Bracton* describes the writ of 
 Ejectio firmcB, which had just been introduced for the pro- 
 tection of leaseholders. But his account is too brief for us 
 to learn whether under that writ the land itself could in his 
 day be recovered. Perhaps it was not until Equity set the 
 example of specific restitution that the farmer's interest 
 became a jus in rem. But whatever may have been the 
 date at which the right to damages was raised into a right 
 of property, the point of special interest to us is this — 
 that the gradual transition from the one to the other so 
 identified the two in men's minds that even when the 
 property right had got thoroughly established, it still 
 remained descendible like the personal rights, and never 
 became subject to Primogeniture. In Scotland the lessee's 
 jus in personam was in 1449 turned into a jus in rem by the 
 operation of an express statute ; and the suddenness of the 
 transition made its real character apparent. The logical 
 consequence followed ; and to this day a term of years in 
 Scotland is not a moveable right, but a heritable one — not 
 partible, but Primogenitive.'f- The fact has not been with- 
 out eflPect upon Scottish agriculture. | 
 
 A survey of English inheritance law vividly illustrates 
 the peculiarities of English feudalism. It has a stronger 
 hold as a system of land tenure, and a weaker hold as a 
 system of political life, than the feudalism of the Continent. 
 In no continental nation was everj' inch of soil brought into 
 feudal subjection; even Normandy permitted the franc aleu 
 to exist, and in Scotland and Jei-sey a few allodial holdings 
 
 * Fo. 220. 
 
 t Erskine, "Principles of the Law of Scotland," p. 132. 
 
 X Lavergne, "Rural Economy of England," p. 289. 
 
41 
 
 survive to this day, In no continental nation was Primo- 
 geniture so absolute in its operation or so general in its 
 adoption; in England it left nothing for the younger sons, 
 and it prevailed in every tenure. In no continental nation 
 does Primogeniture still retain its hold as the typical rule of 
 succession. In no continental nation are the lands, labour, 
 and capital requisite for agriculture, still contributed by the 
 co-operation of three separate classes. The rapidity with 
 which our feudal law was developed was probably the cause 
 of its peculiarity. But the Primogeniture with which 
 William so deeply impressed it saved us from an aristocratic 
 caste ; as the centralising policy, which began in his Salis- 
 bury oath of fealty, saved us from aristocratic oppressions. 
 The doctrine that only one son succeeds to the father's 
 position saved us from an order of gentilshommes and barons 
 of sixteen quarterings, and gave us a hierarchy of gentry 
 and yeomanry, filling up every step of the gulf that lay void 
 between the continental noble and the continental peasant. 
 When such a policy was at work, it was natural that 
 feudalism should be equally weak in the sphere of finance ; 
 that the taille should be unknown, and the tenths and 
 fifteenths be levied impartially from all lands, knightly or 
 pacific, base or free. It was natural that the liberty of 
 alienation should be established unusually early, that entails 
 should be introduced unusually early to replace it, and that 
 they in their turn should be rendered briefer and weaker than 
 in any other monarchy of prte-revolutionary Europe. 
 
 III. — The Successive Safeguards of Primogeniture. 
 
 We have now traced through every species of English 
 land the history of Primogeniture — the rule by which an 
 intestate's property descends to his eldest son. But there is a 
 cognate subject which it may not be altogether out of place 
 to deal with. 
 
 Under the phrase " Law of Primogeniture " popular con- 
 troversy often assails the law of entail and the law of 
 settlements. Absurd as the confusion may appear to a 
 
42 
 
 lawyer, it is not unnatural to a lay observer. For the 
 rareness of intestacy has long rendered the operation of the 
 law of Primogeniture comparatively rare; and it is by 
 settlements amongst the higher classes and by Wills amongst 
 the middle classes that the corresponding habit — the 
 aristocratic preference of eldest sons — is perpetuated into 
 future generations. Let us trace the stages by which these 
 have been admitted to supplement the operation of the law. 
 The Saxons had allowed a grantor of bocland to prohibit 
 the grantee from aliening or devising it beyond the circle 
 of his family.* The early Feudal law gave the heir still 
 greater security by a general abolition of devises, and a 
 prohibition of all alienations that were extensive enough to 
 produce entire disherison.f By Bracton's time the prohibi- 
 tion was obsolete; but every fee simple conditional produced 
 temporary inalienability. Meanwhile — about the same time 
 that Primogeniture became predominant in socage lands 
 — efforts were made by the lords to restrict alienation ; and 
 these, though intended for their own protection, protected the 
 heir also. The Magna Charta of 1217+ imposed a limited 
 restriction, which in the case of tenants in chief soon 
 became an absolute one, upon restrictions without licence. 
 Bracton§ describes the mesne lords of his day as endea- 
 vouring to impose a similar absolute restriction upon their 
 own tenants, but in vain. At the beginning of the reign of 
 Edward I. — about the same time that Primogeniture became 
 universal in socage lands — they changed their policy. They 
 changed it in a manner doubly injurious to the heir. By 
 the statute Quia Emptores,\\ of 1290, they not only gave 
 up all power to restrict alienations, but they enacted that 
 alienation should always take place in the mode by which 
 the heir was most impoverished. Substitution was to 
 supersede subinfeudation. No changes, however, took 
 place in a statute of very opposite tendency, which they 
 had passed five years previously in the interests of their 
 own heirs. By this enactment, the De Bonis Condition- 
 
 * Laws of Alfred. Stubbs' "Select Charters," p. 63. + Glanville, vii. 1. 
 t Cap. 39. § II. 19. II 18 Edw. I., c 1. 
 
43 
 
 alibus* a new species of estates in lands was created, which 
 was placed beyond the possibility of alienation. Wherever 
 a fee-tail was created, the eldest son now became indefea- 
 sible heir. No feoffment could oust his expectancy — no 
 devise could oust it. Primogeniture was fastened upon all 
 such lands with a chain of iron. 
 
 Much about the same time that the eldest son began to 
 acquire a legal claim to copyhold inheritances, his hold upon 
 freehold lands became relaxed. The fifteenth century saw 
 Testaments reappearing through the operation of the law of 
 Uses; and almost immediately after the Chancellor had 
 thus recognised the power of devise, the Common Law 
 judges legalised the employment of Recoveries for the 
 destruction of entails.-|- From that century Primogeniture 
 ceased to be an indefeasible right. By a Will the eldest son 
 might be excluded from the succession to any estate in fee 
 simple ; and by the mode recognised in Taltarum's case, any 
 fee-tail in possession might be converted into a fee-simple. 
 
 In Henry VII.'s reign a statute was passed to prohibit 
 wives from aliening estates tail which had been given to them 
 by their husbands (ex provisione viri). Such gifts at once 
 became common ; and long continued to be the chief safe- 
 guard of family estates. 
 
 All other estates tail, if vested in living persons, became 
 freely alienable as soon as Henry \II.l dealt the last blow at 
 baronial perpetuities by supplying, in the Fine, a means by 
 which even an expectant tenant in tail might defeat the 
 prospects of his heir. The subsequent destruction, by the 
 Statute of Uses, of the power of devise was soon followed 
 by its restoration in a simpler and more potent form than 
 before. 
 
 Not many years, however, before the judicial recognition 
 of Recoveries, the judges had permitted an innovation in 
 conveyancing, which was destined in after years to be 
 employed as a measure of protection against the peril of 
 
 * 13 Edw. I., c. 1. 
 
 t Taltarum's case was decided in 1473. Wills of Uses were first enforced 
 in the preceding reign. 
 t Or Hen. VIII. See Butler's note to Co. Litt. 290b. 
 
44 
 
 disentailment. In the reign of Henry VI. a contingent 
 remainder was for the first time allowed to be valid. As 
 soon as tenants in tail who were not in possession received 
 the power of barring their estates by Fines, the ingenuity 
 of conveyancers fell back upon these contingent remainders 
 as aiding the postponement of that power.* The land 
 which was to form a family patrimony was given, as to 
 this day it is, to the living head not as an estate tail, but only 
 as a life estate; and the remainder in tail was sent "in 
 gremium legis" to await the birth of another generation. 
 (Under the Commonwealth, the risk of attainder for 
 treason led to the insertion of Trustees to preserve the re- 
 mainder ; and when powers of appointment were afterwards 
 introduced, settlements finally assumed their present form.) 
 There was no living man who could sell or devise the estate. 
 It must inevitably become the property of the yet unborn 
 eldest son ; and not only until his birth, but until at, the age 
 of twenty-one, he acquires the power of barring the entail, 
 the land becomes an assured family possession, certain to 
 pass from owner to owner in the very order in which a 
 descent by Primogeniture would have carried it.. How far 
 such an assurance could be carried remained a disputed 
 point, but legal opinion has long settled that beyond the age 
 of majority of the first unborn generation, the liberty^ of 
 alienation cannot be restrained. As soon, however, as that 
 age is reached, the existing entail is destroyed, and the 
 estate resettled; and thus for generations each successive 
 eldest son comes into his patrimony as an ascertained 
 remainderman, and not under the law of Primogeniture. 
 
 IV. — The Effects of the Law of Primogeniture. 
 
 We have already sketched the military advantages which, 
 as the Conqueror foresaw, resulted from the establishment 
 of Primogeniture. The most apparent was the concentration 
 of martial force. In war, as in diplomacy, silence and 
 
 * The earliest recorded precedents were drawn in 3 and 4 Philip and Mary. 
 (See Mr. Joshua Williams' paper in the "Juridical Society's Transactions," 
 I. 47, 48.) 
 
45 
 
 secrecy are powers. The fewer the leaders who share or 
 execute the counsels of a general, the more rapid and more 
 direct will his operations be. The feudal army consisted of 
 groups of tenants looking to their landlords, not of a body 
 of soldiers looking to their one commander. Each man, in 
 modem phrase, thought more of his colonel than of his 
 general, and more of his regiment than of his cause. William 
 reduced to a minimum the friction of the ill-hinged machine, 
 and the embarrassments in which the conflicting interests, 
 jealousies, and plans of his various barons incessantly 
 involved their chief. But it was not only among the great 
 vassals that military advantages resulted from the establish- 
 ment of Primogeniture ; they were perceptible in the very 
 lowest ranks of the feudal army. The risk of a knightly 
 feud devolving on an infant heir was reduced to its lowest 
 degree, whilst in gavelkind succession it rarely happens that 
 all the coparceners have attained majority. A further 
 advantage of Primogeniture lay in its preventing that 
 abbreviation of the period of service, which a subdivision of 
 the knight's fee would have caused. Forty days were the 
 limit of time for which each fee was bound to furnish its 
 horseman yearly. In an age of bad roads and slow marches, 
 so many days elapsed before the whole army could be 
 gathered to the destined field, that but little margin was left 
 for the campaign. A hundred years later, when Henry of 
 Anjou had to defend a realm that stretched from the 
 Orkneys to the Pyrenees, a six-weeks' soldier became worth- 
 less; and first by joint equipments, and afterwards by 
 scutage, the whole system was broken up. But if the forty 
 days were thus inadequate, what must twenty or ten have 
 been? Yet when the knight's fee was subdivided, the 
 necessary apportionment of the services could only be 
 effected by a subdivision of their duration. The feudal levy 
 from some great Honour would go in one generation for its 
 forty days, and turn the fortunes of a war. Sixty years 
 afterwards, if gavelkind prevailed in it, it would set out, 
 quadrupled in numbers, for a ten days' march, and never 
 reach the field in time to strike a blow. 
 
46 
 
 We have already enumerated some political institutions 
 which testify to this day William's foresight as a statesman. 
 That as a general he was equally farseeing, he proved when he 
 delivered his realm from the disintegrating law of gavelkind, 
 which shattered the military strength of Wales and Ireland, 
 where, like Csesar's Britons, the Kelts to the last singuli 
 pugnabant, vmiversi swnt victi. 
 
 But in days of club-law it was not merely in the arena 
 of national hostilities that Primogeniture was found a tower 
 of strength. Even for local self-protection, and even 
 among peace-living socmen, it had a pai-t to play. Between 
 the death of the great Norman and the accession of the 
 Empress's son, there was many a time when in many a 
 district younger brothers found themselves richer by their 
 poverty. The wealth of the firstborn around whom they 
 circled, was a far more powerful shield to each of them than 
 his own apportioned share of it could ever have been. 
 We have already seen how deeply the sad experience of 
 a single century had engraved this lesson upon socmen's 
 minds, when the great Justiciar wrote. Purparties were 
 disappearing before Primogeniture. 
 
 The next age saw a change. Under the reign of law, the 
 protection of Primogeniture was no longer needed by men of 
 peace, and when armies of mercenaries could be hired with 
 scutage money, it had no longer any influence upon the men 
 of war. In modem England the possessor of an acre is 
 as safe as the possessor of a countj'-. No man is his own 
 policeman. Henceforth, the only effects of Primogeniture 
 upon English society — ^whether in early days, as an intestacy 
 law, or in later ones as a custom of Settlement — are 
 administrative, or economical. 
 
 When the Statute of Tenures completed the destruction 
 of the feudal military system, the social and judicial organisa- 
 tions of England were still as feudal in their essence as 
 they had been when that system was undermined five 
 hundred years before by the Scutage of Toulouse. And when, 
 in our own day, the creation of a citizen army formed another 
 epoch in English military history, it found the pacific 
 
47 
 
 organisation of the country feudal still. Our county taxa- 
 tion is not in the hands of a representative body, nor is our 
 county judicature in the hand of a bureaucracy. In every 
 agricultural parish there is a dominant and resident landowner, 
 the centre of intelligence, of charity, and of social life. Upon 
 a body composed almost exclusively of such men, the 
 judicial and financial work of each county is devolved by 
 our constitution. Hereditary public duty created an here- 
 ditary public spirit, which secured the due performance of 
 all these functions, even in days less conscientious than our 
 own. In a hard winter, when the porridge and the faggots 
 had got scarce, the Gloucestershire peasants would ill 
 have spared even Justice Silence and Justice Shallow; 
 and we know that Squire Western was as zealous amongst 
 the quorum as at the coverside. How invaluable the powers 
 of such a position became, when they were exercised by 
 an Allworthy, has been told by the great master of English 
 life and feeling. Such men, independent of a Minister's smile 
 or frown, formed the rallying points of English political life. 
 In every generation our country has had her Hampdens, 
 her Saviles, and her Althorps,the trained and trusted captains 
 of proud followers, to lay their steady hands upon the helm of 
 her fate. France, to-day, possessed of no leader with a visible 
 stake in her prosperity, lies at the mercy of adventurous 
 avocats and pressmen, whilst her peasant-proprietors doze in 
 political lethargy through the intervals between the pl^is- 
 cites. 
 
 Yet for these social advantages there was a social price to 
 pay. It is as true in the parish as in the nation that a 
 paternal government makes a childish people. A man whose 
 brothers and neighbours are dependent upon him is prone 
 to become overbearing, whilst the neighbours, and even the 
 brothers, are apt to become obsequious. The effect of 
 Primogeniture on national character could not be ennobling. 
 The " statesman " of the Northern dales might love to scan 
 his rights,* and the men of Kent might cherish the bold and 
 
 * To Wordsworth's pictures in poetry and prose add the estimate of a 
 political economist — Alison, " On Population," II. 31. ' 
 
48 
 
 boisterous spirit to which Jack Cade appealed, and which 
 nerved them under Wyatt to shake Queen Mary's throne. 
 But in the counties where tenantry and peasantry felt the 
 influence of Primogeniture, there were no villagers less 
 fabulous than those of Auburn, whom the Traveller could 
 have found learning to venerate themselves^ as men. The 
 next few years of our own time will show what feelings the 
 leaders of agricultural trades unions may kindle among their 
 followers. It is impossible to foresee how great a sedition a 
 little fire may kindle amongst men who have no stake in 
 their country. One thing at least is sure: an English 
 revolution would be no mere change of dynasty, like the 
 periodical revolutions which ruffle so little the even tenor of 
 French life. It would strike at the very root of property 
 and order, for on this side of the Channel we have not six 
 million small proprietors with their hands on the throat 
 of Communism. 
 
 There was also a penalty of a more palpable character 
 to pay. In Portugal, where Primogeniture held greater 
 sway than in any continental country, the blue blood of 
 disinherited younger sons could not brook the touch of 
 even sword or robe, and they preferred instead to live 
 on casual alms. But in England, as in France, the gentil- 
 homme was less proud, and the public purse more ample. 
 There was always a pair of colours, a sloop, an embassy, or 
 a benefice, for a portionless younger son. In days not 
 altogether forgotten by living men, an overgrown diplo- 
 matic service, excessive armaments, and a secularised and 
 simoniacal Church, attested to the world the presence of 
 Primogeniture in England.* 
 
 This darker side of the picture naturally suggests an 
 inquiry into the general eSects of Primogeniture upon 
 national wealth. With reluctance we approach a question 
 which Mr. J. S. Mill has declared to be "one of the most 
 disputed in the whole range of political economy." The 
 
 * There ia extant in the Probate Registry a nobleman's will, bequeathing to 
 his three younger sons annuities of £600 until they should receive Govern- 
 ment places exceeding that value. — " Hansard," cix. 1210. 
 
49 
 
 controversy lies between the partisans of small properties 
 and small farms, and the partisans of large properties and 
 large farms. Two other conceivable combinations may be 
 dismissed from notice. The division of large properties into 
 small farms is defended by no economist; though the lesson 
 was not learned until that system of tenure had desolated 
 Ireland with famine. 
 
 " Westward where Dick Martin ruled 
 The houseless wilds of Connemara," 
 
 the landlord's estate was vast enough to allow of his porter's 
 lodge being built twenty -iive miles from the hall door;* and 
 the tenants' holdings were smaller than a French peasant's. 
 The second arrangement, that by which small properties are 
 combined into large farms, though sometimes adopted in 
 parts of France,"!" can never become general. The whole 
 spirit and feeling of small proprietors is opposed to it, while 
 the farmer would find it attended with economical difii- 
 culties, which — I say it withi hesitation — seem to have 
 escaped the notice of Mr. Mill. Had that great writer lived 
 in the country, he perhaps would not have revolutionised 
 English thought, but he might have learned by sad 
 experience that contiguous fields will command a monopoly 
 rent, and that scattered fields can only be cultivated at a 
 profitless expenditure of the time of men and horses. 
 
 If, then, we have small properties, we must be content 
 with small farms ; if we have large properties, we must have 
 large farms. A large farm means, of course, one that 
 is large as farms go, though small in comparison with the 
 size of properties, for no one supposes the possibility of 
 a great English landowner finding the time and the capital 
 necessary for the cultivation of a great English estate. 
 The results of the controversy that has i-aged between 
 the advocates of these two systems may perhaps be fairly 
 summarised now. The " English " system of large estates 
 subdivided into large farms, a system which can exist only 
 under Primogeniture, is the system by which the greater 
 net produce is realised, by which, with equal expenditure of 
 
 * Lavergne, p. 290. t MiU'a " Political Economy," I. 365-6. 
 
50 
 
 manual labour, the greater profit is -won from the land ; and 
 by which a hierarchy of agricultural classes is created, 
 rendering possible an order of capitalist farmers, the equals 
 of their landlords in manners, taste, and culture. The 
 " Continental," or old Kentish, system of small farms tilled 
 by the owners gives the greatest gross produce. Greater profit 
 is won from the land, but it is won by a more than propor- 
 tionate expenditure of labour. " The magic of property," as 
 Arthur Young found in France, "turns sand to gold." It has 
 raised to fertility the blowing sands of the Pays de Waas; 
 through it the Lilliputian farms of Belgium have received a 
 Lilliputian minuteness of culture, which has made their 
 country the garden, now that it is no longer the cock- 
 pit, of Europe." There is no day and no moment when 
 a man, whose land is his banker, cannot pay in 
 something to his own credit. Even when " endimaneh^" 
 Jacques Bonhomme will slip away from estaminet or 
 mass to keep an eye on the vines or the beetroot. 
 And though political economists may care little for 
 an increase of produce that is eaten up by the men 
 who cause it, the statesman looks at matters from a wider 
 view. To the " wealth of nations " equal profits are of 
 equal value. To the statesman seeking the weal of nations, 
 the profit that remains after a vast population of busy 
 and contented toilers have satisfied their wants, is a 
 thousand times more precious than an equal profit left by 
 agricultural skill and clever machinery, after the pay- 
 ment of competition wages to a minimum number of 
 half-fed and improvident labourers. Yet, as we have seen, 
 either France or England may contrast favourably with 
 the Irish system — infandum renovare doloreTn—vindev 
 which the nation obtained the smallest net as well as 
 the smallest gross produce, and the cultivator, besides being 
 improvident and ill-fed, always smarted under a sense of 
 injustice. 
 
 The drawback of the peasant proprietor's position lies in 
 the very excess of the industry to which it urges him. The 
 material welfare which he gains, and the assiduity with which 
 
51 
 
 he pursues it, deter him from mental cultivation and from 
 moral enthusiasm* 
 
 These are not abstract theories, nor examples vaguely 
 compared by the " Method of Agreement." Try them by 
 the " Method of Difference " in its strictest application. 
 Go where capital, labour, climate, soil, and government 
 are all alike, and only the land tenure different ; that 
 difference will always tell. Devonshire has the climate 
 of Jersey and a better soil ; but Devonshire has the law 
 and custom of Primogeniture, whilst the Jersais give only 
 a prdciput to the eldest son.f The consequence is that 
 Jersey, with larger exports, maintains a population four times 
 as dense as that of Devonshire, thrice as dense as that of Great 
 Britain. | Compare again the gavelkind county with the 
 other shires of England. Kent lies at the worst edge of 
 that great clay basin of which London is the centre, in the 
 
 * See " Letters of Edward Denison, M.P.," pp. 149, 150. 
 
 + The exact rule in Jersey is that the eldest son, or eldest daughter failing 
 sons, first takes the house and garden (and in the country two acres of land), 
 a tenth of the remaining land, and a further plot as allowance for his 
 liability to pay " musket money " to the militia. Partition then takes place, 
 every son taking twice a daughter's share. — Le Quesne's "Constitutional 
 History of Jersey." See also the Report of the Royal Commission, 1871. 
 
 X Jersey, like Kent, had her period of reaction towards Primogeniture. In 
 1616, and again in 1666, the " States " petitioned the Crown for a law to 
 permit entails upon eldest sous, and to make all Fiefs of Dignity descendible 
 by Primogeniture. They alleged that the latter change " would be a fondatiou 
 of men to serve the king and the country in the greatest offices and charges, 
 and a constant surety and ornament to that island ; " whilst by the former 
 " the island shall be always provided of sufficient men able to maintain muskets 
 and other serviceable arms for defence, and carts for his Majesty's service, 
 whereof there is now a miserable defect." They pleaded that " the infinite 
 partitions do wholly impoverish the people, and leave not men in any measure 
 able to find arms or much contribution for defence, or to do his Majesty and 
 the country any good service. And the children of the better sort, depending 
 upon their partitions, give not themselves to trades ; and so by suits for 
 portion and idleness an inundation of beggary diveth upon the island." 
 Modern history has shown that the poverty which they deplored sprang not 
 from Primogeniture, but from the laws which limited prices and prohibited 
 exportation. The attempt to divide Jerseymen into seigneurs and serfs soon 
 came to an end. But to modern lawyers, accustomed to associate French law 
 with the policy of the Code Napoleon, which recognises no preferences of age 
 or sex, it seems strange to find a patriotic jurist of Jersey, Le Geyt, denounce 
 the attempt as the work of a traitor " imbu des maximes de France " (II. 606). 
 E 
 
52 
 
 soil most refractory and most unprofitable before modern 
 days of drainage and grass-farming set in.* Yet in the 
 England of the Tudors it was already a proverb that 
 
 A squire of Gales, and a kuight of Wales, 
 
 And a laird of the north countrie ; 
 A yeoman of Kent with his yearly rent 
 
 Would buy them up all three. 
 
 Lambard,f in the sixteenth century, " perambulated " Kent, 
 and pronounced that "the common people or yeomanry 
 is nowhere more free and jolly than in this shire." But 
 after his time a new era commenced in the distribution, 
 and therefore in the cultivation of the land. Arthur Young, 
 two hundred years afterwards, found Kent one of the best 
 cultivated counties in England ; and Lavergne, in our own 
 day, pronounced it superior to its neighbours, Surrey and 
 Sussex, although its soil is less favourable than theirs. But 
 these testimonials of excellence show that the excellence was 
 decaying as its causes decayed. In Young's time there were 
 still nine thousand freeholders in Kent,| besides all the 
 estates that lay in moi'tmain. The example of other 
 counties and of the upper classes of Kent was superseding 
 the law of gavelkind by a custom of Primogeniture, whilst 
 irresistible economical causes were concentrating land in the 
 hands of rich purchasers. Hence it is not sui-prising that in 
 the " New Domesday " of our own day, though the law of 
 gavelkind still holds, the lands of Kent are found not more 
 subdivided than those of other counties. If we include the 
 mortmain lands, they are even less subdivided; for there are 
 in Kent 7758 properties of upwards of an acre in size, 
 which gives an average to each of about 122'53 acres, whilst 
 the average in the rest of England proper is only 116-7, or 
 in the rest of England and Wales about 122-4<8§ (London 
 
 * Lavergne, "Rural Economy of England," p. 199. 
 
 t "Perambulation," p. 8. t Haated, I. 301. 
 
 § The exact disproportion is stiU more in favour of Kent, for the above 
 averages are reckoned on the total acreages ; since the acreage owned by pro- 
 prietors who own less than an acre is not distinguished in the " Landowners' 
 Return." From the nearness of Kent to London, house property is so frequent 
 that this class of proprietors are more numerous than in the rest of England, 
 in the ratio of about seven to six. 
 
53 
 
 being omitted in all the calculations.) Kent contains thirteen 
 mortmain estates of over 1000 acres each. 
 
 The introduction of Primogeniture into Wales by Henry 
 VIII. was a severe blow to the economical progress of the 
 Principality. In a country where wealth was still purely 
 agricultural, there was but a scanty portion of personalty 
 for each younger child; the eldest had only an equally 
 scanty one wherewith to stock all his land. An age of 
 poverty and discontent set in, and Eebecca with her riotous 
 sons stalked through the land. Had not the sudden 
 developement of her mineral resources in railroad days 
 opened a new field for the enterprise and industry of 
 Wales, she would have sunk to the level of Ireland; and 
 English politicians would have discovered additional evidence 
 of the innate impracticability of the Kelt. 
 
 The Bdinhv/rgh Review (in an article attributed to Mr. 
 MacCulloch) prophesied in July, 1824,* that if the system of 
 partible descents should "be supported in its present vigour 
 for another half -century, la grande iiation will certainly be 
 the greatest pauper warren in Europe, and will, along with 
 Ireland, have the honour of furnishing hewers of wood and 
 drawers of water for all the other countries of the world." 
 A sufficient commentary on this prediction was furnished 
 forty-eight years afterwards by the subscribers to the loan 
 which redeemed the soil of France from the hands of her 
 invaders. In July, 1872, M. Thiers asked for £140,000,000, 
 and received in reply the offer, mainly, though not entirely, 
 from France, of £1,720,000,000. 
 
 But the conclusion which we may form on the respective 
 merits, political or economic, of large properties and of 
 small ones, will throw little light on the modern aspects 
 of the law of Primogeniture. It is quite true that there are 
 legal causes which tend to keep English estates from 
 increasing in number ; and which, whenever the number is 
 lessened by a large proprietor buying out a small one, keep 
 it down to its narrowed limit. But in the face of the misap- 
 
 * XL. 369. 
 
 e2 
 
54 
 
 prehensions and mistiomers of popular controversy, it is of 
 the utmost importance to make it clear that of all these 
 restrictive causes the law of Primogeniture is beyond 
 comparison the least influential. It is not a frequent 
 thing for the owner of real property to die intestate; and 
 it is one of the rarest of casualties for the owner of a 
 large estate to die without having made either a settle- 
 ment or a will. Very small, therefore, is the total extent 
 of land which in the course even of a generation descends 
 under the law of Intestacy (largest, probably, in proportion, 
 if we may trust Parliamentary witnesses, in the districts 
 where Primogeniture is unknown).* That concentration of 
 property, which in our earlier feudal days certainly was 
 preserved and intensified by the law of Primogeniture, has 
 for centuries depended for its support upon other branches 
 of our jurisprudence. It is by the laws of Entail and 
 Settlement that the estates of the great proprietors are 
 preserved from alienation. It is either under a Settlement 
 or under a Will, it is as a remainderman or a devisee 
 and not as an heir, that an eldest son usually receives 
 his right to his father's lands. These laws do the work 
 that once was done by the law of Primogeniture. At the 
 same time it is true as matter of history that the mode 
 and purpose of their operation are due to habits of 
 thought and feeling which the law of Primogeniture 
 created, and which, probably, would be seriously weakened 
 by its abolition. 
 
 It must also be remembered that besides these legal causes 
 which keep the number of landed proprietors from increasing, 
 there are economical causes at work to diminish that number. 
 Ambition for the social distinction attached to the possession 
 of a landed estate raises the price of large properties, and 
 the " earth-hunger " of busy townspeople raises the price 
 of small ones, until the value of land grows out of all 
 proportion to its rental. Hence the yeoman finds that by 
 retaining his few acres he locks up a capital which if 
 turned into money would stock a farm of ten times the 
 
 • First Report of Real Property Commissioners, pp. 253, 271, and 368. 
 
55 
 
 size, and would yield in profits fourfold what it now saves 
 in rent. There are laws of human action less sublime, but 
 scarcely less unerring than those of the planetary move- 
 ments. In a time when wages and prices are rising much 
 faster than agricultural profits, it is not surprising that 
 every day sees some dignified estate rounded off, and some 
 small proprietor turned into a tenant farmer. Land-owning 
 15 now a luxury, not a livelihood. 
 
 We are justified, then, in concluding that upon the 
 interests of the country at large the law of Primogeniture 
 exercises no appreciable influence at the present day. Its 
 operation is so rare, that we may dismiss from consideration 
 those national effects which once were so tremendous, and 
 regard only the results which it produces in the limited 
 circle of family life. Tested on that small scale, its effects 
 are too evident to leave much scope for controversy. It is, 
 as Lord Houghton calls it, " a little pin point of a law ;" but 
 its prick is a keen one. 
 
 In the vigorous days of feudalism, the eldest son's 
 pre-eminence was far more marked in his duties 
 than in his rights. It is, as Mr. Maine says, not 
 likely that he " had any advantage over his brethren and 
 kinsfolk in occupations, interests, or indulgences." But 
 when his armed hand was no longer needed by either king 
 or kinsmen; when the rent services came to be paid in gold 
 instead of in blood; and, most of all, when it was replaced 
 by an excise duty, and cast upon the whole nation; then his 
 privileged position assumed the shape of an injustice. In 
 the old Primogeniture, neither the father nor the younger 
 sons had seen any real inequality of provision; in the new 
 Primogeniture, there was an inequality whose grossness, to 
 those sons at any rate, was evident enough. Young soldiers 
 and Templars were not like Ben Jonson's thresher — 
 
 " Who can stand 
 With a huge flail, -watching a heap of corn ; 
 And, hungry, dares Bot taste the smallest grain, 
 But feeds on mallows, and such bitter herbs." 
 
 Hence arose family animosities, especially in times or coun- 
 tries where neither commercial nor- colonial life had been 
 
56 
 
 sufficiently developed to furnish a field for the energies of 
 the disinherited. On this subject the testimony of Coleridge* 
 is emphatic : — 
 
 " The mournful alienation of brotherly love occasioned by 
 the law of Primogeniture in noble families, or, rather, by the 
 unnecessary distinctions engrafted thereon, is still almost 
 proverbial on the Continent, especially (as I happen to know 
 from my own observation) in the South of Europe; and 
 appears to have been scarcely less common in our own 
 island before the Revolution of 1688, if we may judge from 
 the characters and sentiment so frequent in our elder 
 comedies." 
 
 "The firstborn," says Locke,-|- "has not a sole or peculiar 
 right by any law of God and nature." Observers of more 
 sophisticated or less sophisticated minds may couch the 
 sentiment in a different phraseology. The fact remains that 
 few parents could deliberately dispose of their property as 
 the English law will dispose of it for them, and that few 
 heirs could accept in its entirety the " insolent prerogative " 
 which the English law confers upon them, without exciting 
 the surprise and reprobation of their neighbours. A 
 father would be considered to disregard all the respon- 
 sibilities of parentage, if he did what the law does. The 
 disposition that was not unreasonable, when land was 
 weighted to the full with seignorial burdens, becomes 
 flagrant injustice when land is of all forms of property 
 the most privileged and prized. A law so violently opposed 
 to the moral sentiment of the nation, remains in life only 
 because it remains in lethargy. 
 
 The main reason for this disapprobation is evident. The 
 disposition of the law disappoints the prevailing expecta- 
 tion of the children. The rule of Primogeniture and the 
 power of testation have not eradicated the principle of a 
 Legitim. Even amongst the upper classes of this country 
 the custom of Primogeniture has never been adopted in 
 that exclusive shape which it wears in law. The lands 
 which are settled on an eldest son are always charged 
 
 * "Literary Remains," 1. 191. + "Of Government," I. 92. 
 
57 
 
 with portions for his brothers and sisters; portions, too, 
 which are made to carry interest at a higher rate than that 
 which the rental of the land returns. 
 
 Among smaller proprietors the usual dispositions of 
 land are still further removed from Primogeniture. The 
 factory, the farm, the row of villas, which the father has 
 made the investment of his capital, are turned at his death 
 into a provision for all his children as impartially as the 
 money itself would have been. Thus the law of Intestacy 
 disposes of real estate in a mode utterly different from 
 the private dispositions that are made amongst any class of 
 Englishmen, except, indeed, by incredibly undutiful fathers, 
 or by the fathers of incredibly undutiful families. A soli- 
 citor instructed to draw such a disposition would be bound, 
 by professional honour, to remonstrate with his client.* And 
 this disposition is of apeculiarlyevil character. Itaccumulates 
 wealth upon the child who has already had most opportunity 
 of acquiring it, and for his benefit not merely diminishes but 
 destroys the shares of those whose youth has less fitted 
 them, or whose sex has disqualified them, for providing a 
 livelihood for themselves. The evil of having different laws 
 of succession for land and for money reaches its height in 
 days like our own when either is so readily convertible into 
 the other. An estate is bought because it was going at a 
 low price; but if the precaution of devising it is forgotten, 
 the younger children are left destitute in consequence. 
 " Distressing cases of this kind," says Lord St. Leonards,-f- 
 " are continually happening." (In the Isle of Man this 
 danger was prevented, by treating all purchased lands as 
 personalty.) Does a man lose the moral obligation to provide 
 for his children by merely taking his money out of Consols 
 and putting it into bricks and mortar, or by exchanging his 
 leasehold sti-eet for a freehold one? It may be urged that 
 the brotherly affection of the eldest son will prevent his 
 taking full advantage of the law. But it must be remembered 
 that he will in many cases be an infant, legally incompetent 
 
 * Cf. the evidence cited in Hansard clii. 1122. 
 + Handy Book on Property Law, p. 11. 
 
58 
 
 to waive, even by his guardian's consent, a tittle of his 
 rights. 
 
 To say that the rule of absolute Primogeniture disappoints 
 the expectation of children, implies of course that in the vast 
 majority of cases it disappoints the intention of the 
 father. He knows, indeed, that he has made no will as 
 yet, and he knows what must be the result if he do not 
 make one. Rarely, indeed, does he desire that result. 
 He is firmly resolved to make a will, but, as every solicitor 
 knows, the association of a will with an approaching death 
 is so strong in most men's minds, and so repellent, that 
 the prudent purpose is deferred from day to day, and 
 often until too late. Or if the will is made, but made 
 invalidly, the result is as fatal ; and our Reports testify 
 that it is not only by the " Country Schoolmasters," whom 
 the Northern Circuit used to toast, that inadequate forms 
 of execution have been prescribed to clients. It is quite 
 true that it is " only from accident or carelessness " that 
 these disappointments arise. But in neither case are the 
 children to blame for it. There is no reason why the law 
 should turn the accident into a calamity, or make the father's 
 carelessness equivalent to his cruelty. Moreover, a man's 
 intestacy may arise from absolute legal incapacity to make 
 a Will. It is rather hard for the majority of his children to 
 be deprived of their fortunes, merely because their father 
 died insane. Where law operates, it should operate for 
 justice, not for injustice, assuredly not for desolation. 
 " Law," said Hamilton, " should govern accidents, not lie at 
 their mercy." Its single aim should be, to do what the 
 mischance has left undone. If the State makes a Will for a 
 man, it should try to make the same Will that he would 
 have made for himself. If it cannot discover, or cannot 
 approve, his intentions, it has only one alternative — to try 
 to make the same Will for him that he ought to have made 
 for himself. Neither of these courses would lead it to 
 our absolute Primogeniture. As the Real Property 
 Commissioners wisely reported, " The distribution of 
 property which, in the majority of cases, a pi'udent 
 
59 
 
 owner would himself direct, must be considered the proper 
 distribution to be made upon intestacy by the law."* 
 It is certain to be the distribution most generally expected, 
 and it bids fair to be the distribution most generally just. 
 This can never be said of our present law of intestacy 
 Moreover, by an unhappy coincidence, the class amongst 
 whoni intestacy is most frequent is the very class to whose 
 intentions the law of intestacy is most repugnant. Great 
 landed proprietors, whose wills and settlements are based 
 on a qualified Primogeniture, are in constant communication 
 with their lawyers, are familiar from their earliest manhood 
 with the idea of posthumous disposition of their property 
 and almost never die without having, by settlement or will, 
 provided for each and every child. Middle-class proprietors 
 often die intestate, though seldom intentionally. Peasant 
 proprietors usually die intestate deliberately, too ignorant of 
 the cruelty of the law to know that they leave their wives and 
 daughters destitute; and peasant proprietors areavastbodyat 
 the present day, when Building Societies and Freehold Land 
 Societies have dotted our manufacturing districts with hun- 
 dreds of thousands of tiny tenements. The law of Primogeni- 
 ture does not often take effect, but when it does, it is almost 
 invariably in families where, even in a qualified form, it 
 would be unwelcome, and where there is least of consequent 
 family dignity or of moveable wealth to mitigate the im- 
 poverishment it causes.f 
 
 V. — The Probable Future of the Law of Primo- 
 geniture. 
 This picture of the effects which Primogeniture produces 
 at the present day prepares us to suppose that it has long 
 been on the verge of abolition. For forty years past, efforts 
 have been made in the House of Commons to repeal it, but 
 in vain. The law of mediaeval militaiy inheritances still 
 
 * Third Report, p. 12. 
 
 t For authentic instances of the misery sometimes caused by the existing 
 law of Primogeniture, see Hansard cxxxi. 475 ; clii. 477 ; cxcvii. 1826, 1849 ; 
 ccxxx. 594. 
 
60 
 
 governs all English lands in the last quarter of the nineteenth 
 century. 
 
 By what arguments has the change been resisted so 
 succGssfully ? 
 
 The name of argument can scarcely be bestowed on the 
 plea that Intestacy is too rare for the change to be worth 
 making. If the law is to operate even once, it is worth 
 while to make its operation just. Yet the Attorney and 
 Solicitor-General of 1836 considered that plea sufficient 
 reason for rejecting the proposed reform. Sir John Camp- 
 bell declared that the biU " would produce no eifect," and 
 Sir R. M. Rolfe that it " would be perfectly nugatory." Sir 
 Robert Inglis, however, whilst concurring in opposing the bill, 
 took a remarkably diiferent view of its potency, declaring 
 that " the real question is, whether the House of Lords is to be 
 overthrown or destroyed !"* That a law of partible descent 
 would operate very rarely is quite true. The stamp returns 
 show that, even of personal property, ten times as much 
 passes under wills as under intestacy. But it must needs 
 operate just as often as does the existing law to which the 
 opponents of change attach so much importance. 
 
 Scarcely compatible with the last-mentioned argument is 
 the one which, probably, has most effect in creating opposi- 
 tion to a law of Pai-tible Descent — the fear that it would 
 " cut up properties " too minutely. It must be conceded by 
 the most zealous friends of the petite culture that there is a 
 point at which subdivision ceases to be economically 
 beneficial — ^the point at which the paw'ceZZe becomes too 
 small to occupy the whole time of its proprietor. That 
 point has been reached and passed in many inheritances in 
 France, for the shares often do not exceed a rood in extent, 
 and 1,134,490 French proprietors are eking out a livelihood 
 by their wages as day labourers."!" It must also be admitted 
 that, rare as intestacy is, it is amongst the small proprietors 
 that it most frequently — disproportionately frequently — 
 occurs. (We have, indeed, insisted upon this fact as a main 
 
 * Hansard xxxii., 906. 
 
 t Foreign-office Report, Parliamentarj' Papers, 1870, vol. Ixvii., pp. 59-69. 
 
61 
 
 argument against the existing law.) It is therefore inevi- 
 table that, here and there, inheritances would be found in 
 which each coparcener's share would not exceed those which 
 Mr. Watkins occasionally heard of in manors with a gavel- 
 kind custom, and which did not suffice to defray the fines 
 for the heir's admittance. (But we need not fear that, even 
 in the poorest and most prolific families, subdivision would 
 go on to the same extent as in that Cingalese inheritance 
 which Bishop Heber* was assured had been cut up into the one 
 hundred and fifty-fourths of a single tree.) Kentish cases 
 are on record where one property was split up into one 
 hundred and forty-fourths; and anothei-, not worth more 
 than £300, was divided among twenty-nine coparceners.f 
 
 It may, however, be confidently asserted that very minute 
 rights of inheritance would be far too rare to produce any 
 appreciable waste of the agricultural labour-power of the 
 nation. But without insisting upon this, it is sufficient to 
 remark that, when such rights arose, they would hardly ever 
 be exercised by an actual partition, but would almost always 
 be bought out by one of the sons. Some of the children 
 will be too young to undertake the duties of a cultivating 
 proprietor; whilst most of the older ones will be settled in 
 other districts, or in other callings, which they cannot pro- 
 fitably quit. Hence, as experience abundantly shows, in 
 countries of partible descent a custom may grow up by 
 which the eldest home-keeping son buys out the rights of 
 the other children, and prevents actual partition, long before 
 the estate has reached the point at which further subdivision 
 would be excessive.! Sometimes, indeed, this custom takes 
 such deep root that, as in Wurtemburg and Silesia, the 
 younger children not only acquiesce in being bought out, 
 but habitually content themselves with a piice considerably 
 below the market value of their legal share.§ 
 
 * Alison, II. 5. 
 
 t First Report of Real Property Commissioners, app. p. 270. 
 
 t In J eraey, " an arrangement is usually entered into whereby the eldest 
 son purchases from his co-heirs their portion of the land, and the estate is 
 thereby kept together ; and it is remarkable how, notwithstanding the law 
 which divides property among co-heirs, estates have remained in the same 
 family for several generations." Le Quesne, Oonstit. Hist, of Jersey, p. 290. 
 
 § Foreign Office Report of 1870, pp. 80, 133. 
 
62 
 
 It has been urged that Primogeniture contributes mate- 
 rially to the increase of national wealth. The energies of 
 the younger children, it is said, are stimulated by their 
 poverty ; and the stimulus is additionally heightened by the 
 spectacle of their elder brother's luxurious existence. Those 
 who advance this argument can scarcely have remembered 
 the sex of the heir whom Primogeniture selects for the career 
 of luxury. It remits to poverty the whole of the daughters ; 
 though society allows them no honourable means of raising 
 themselves to competence or station, however keenly the 
 pressure of poverty may dispose them to the task. It 
 paralyses with riches a member of that sex to which ambition 
 and enterprise are not forbidden, and selects the very- 
 member whose age and experience would best have fitted 
 him for the perilous pursuit. The defenders of Primogeni- 
 ture who lay so much stress on the advantage of " depriving 
 a man of every adventitious assistance,"* and regard broad 
 English acres as a danmosa hcerecUtas, may fairly be asked 
 why the eldest son, too, should not obtain this advantage, 
 and surrender his lands to public uses ; or why the 
 advantage now conceded to the younger sons should not be 
 intensified, by relieving them of the adventitious assistance 
 with which they are encumbered by the Statutes of Distri- 
 bution. A man of energy and business habits may, indeed, 
 make his share of personalty a stepping-stone to fortune ; 
 but the education and prejudices of younger sons of the 
 upper classes will seldom lead them to turn their portions 
 into capital for merchandise or manufacture. Their pittance 
 secures them from want, and serves to eke out the meagre 
 incomes of the more aristocratic professions. Glasgow and 
 Liverpool, Manchester and Birmingham, may be searched 
 far and wide without finding any great proprietor's younger 
 son distinguished as a manufacturer or eminent as a 
 merchant. On ne s'encanaille pas. 
 
 It has been said that the hope of founding a family is the 
 main incentive which urges our leading capitalists to repeated 
 enterprise. Were the prospect withdrawn from them of 
 
 ♦ Edinburgh Review xl., 363. See a reply in the WestmimUr Review, vol. ii. 
 
63 
 
 being able to " make an eldest son," the mere love of money, 
 or the mere excitement of business, would soon cease to 
 sustain them in their anxious career. Let the enterprises of 
 England's merchant princes be remitted, and she sinks to 
 her old state, a bleak and sunless island in the North Sea. 
 We need not pause to consider whether the position of a 
 mere millionaire is really so unattractive as to be of itself no 
 stimulus to the ambitious spirits on 'Change. For, granting to 
 the full the force of the argument we are considering, admitting 
 it conclusive as a justification of the law of Entails and of 
 Testation, it has little value as a defence of Primogeniture. 
 No capitalist that ever resolved to found a family, ever 
 dreamed of trusting to the law of Primogeniture to effect 
 his object. He taxes to the utmost the skill of conveyancers 
 in drawing assurances to perpetuate the eclat of his name. 
 Declare such efforts void, prohibit gifts to the unborn, 
 abolish Wills, entitle every child to an indefeasible Ugitim, — 
 in a word, repeat the policy of the 17th Nivose — and the 
 ambition of the capitalist may really be in peril. But it is 
 the height of absurdity to suppose that a man who has set 
 his heart on founding a family, and on making a fortune for 
 that purpose, wiU relax his efforts merely because he learns 
 that if a particular contingency which depends solely on his 
 own will, and which he has always resolved to prevent, be 
 not prevented, his hopes will suffer disappointment. A man 
 inured to the hazards of Mark-lane, or the perils of Capel- 
 court, will scarcely be unnerved by so remote a chance as 
 this. 
 
 A sounder objection is drawn from the evil of cutting up 
 those estates which support titles of nobility. Such estates 
 so very seldom come under the operation of the law of 
 Intestacy, that the evil would be most rare. But the inde- 
 pendence of all life-long legislators is of too great importance 
 to the State to permit the abandonment of even its smallest 
 safeguard. Were the law of Primogeniture to be whoUy 
 abolished, an exception should be made in favour of the 
 heirs of Peers. This provision of a distinct law of inherit- 
 ance for noble classes marked many of the feudal systems of 
 
64 
 
 jurisprudence, and commended itself to the mind of Napoleon. 
 He qualified the equal divisions which the Revolution had 
 prescribed, by conceding to senators the right of creating 
 majorats for their eldest sons. 
 
 A further point remains to be considered — whether the 
 abolition of the law of Primogeniture would cause the decay 
 of the custom of Primogeniture. The direct operation of 
 that law is so rare that the warmth with which all attempts 
 to alter it have been made and have been met, show that the 
 debaters felt it had some remoter effect more potent than 
 those upon which they avowedly laid stress. At heart the 
 assailants hoped, and the defenders feared, that any change 
 in the law of Intestacy would be followed by a corresponding 
 change in men's customs of disposition. It may appear 
 unlikely that an ancient and deeply rooted prepossession 
 should be undermined by the passing of a statute which in 
 no way deals with it, and which will operate upon only a 
 minute fraction of the total number of the landed estates of 
 the country, and upon an extremelj'- minute fraction of their 
 total extent. But the power of law in moulding public 
 opinion is too constant not to operate even here. To believe, 
 to imitate, and to obey, are instinctive impulses in the 
 human mind. "Melior est dispositio legis quam hominis," is 
 not a mere pedant's crotchet, but the natural presumption 
 of all citizens. They will assuredly copy, sooner or later, 
 closely or loosely, whatever principle they see the State 
 adopt and honour. Even the seeming exceptions confirm tliis 
 law of history. If legal establishment has failed to make 
 Presbyterianism aristocratic in Scotland, or to make Kentish 
 settlors and testators adopt the principle of partibility, it is 
 not because law does not mould opinion. It is because it 
 moulds it so irresistibly that all local rules are powerless 
 against the influence of even an extraneous system, if it be 
 felt to represent 'the State's collective will.' 
 
 From the day when Jefferson carried the repeal of the 
 Virginian law of Primogeniture, the principle of partibility 
 took root in American jurisprudence. It prevails now in 
 every State and Territory of the Union. So universally 
 
65 
 
 has public opinion, even amongst European immigrants, been 
 moulded by the present law, that all private dispositions are 
 made in accordance with it; and a parent would \)e reprobated 
 by his neighbours if he enriched one child at the expense of 
 the others. " There is only one family in the State of New 
 York which has had the boldness to disregard this popular 
 feeling."* It would, however, be a much harder task to 
 change the current of opinion on this subject in aristocratic 
 England. Even those who most strongly approve of the 
 effects which the law of Primogeniture has had in moulding 
 our private settlements, need not desire its preservation for 
 the mere sake of preserving these effects. Practices so 
 inveterate will not be undermined by a collateral innovation 
 so slight, if they really possess one-half of the political and 
 social advantages which their admirers claim for them. 
 
 Some change in the law we may pronounce to be inevitable. 
 The remarkable survey of the land tenures of Europef 
 which was made a few years ago by our diplomatic agents, 
 at the bidding of the Foreign Office, shows vividly the utter 
 opposition of the English law of inheritance to the general 
 judgment of civilised mankind. Securus judicat orhis 
 terrarum. Here and there by extraordinary local customs, 
 as in parts of Silesia and Darmstadt — or by extraordinary 
 privilegia, enacted for favoured individuals, as in Austria — • 
 Primogeniture of the English type may be found lingering 
 on the European continent. But an iceberg in the Gulf 
 Stream is scarcely rarer or more durable. The Consular 
 reports show that the system of equal division is as popular 
 as it is general. Nowhere is any desire expressed for its 
 abandonment. Even the most questionable of its results — 
 
 * Speech of Mr. Beresford Hope. Hansard clii., 11 46. See also Brougham's 
 " Statemen,"ed. 1845, vi. 69 ; and Washburn's "American Law of Real Property,'' 
 Bk. 3, oh. 2. It ia amusing after the lapse of more than two hundred years to 
 read the lines in which old Taylor, in his work on Gavelkind (p. 27), recom- 
 mended that custom to the English plantations in America, and bade them 
 " examine of what avail in probability and policy it might be to them ; and in 
 particular to that most famous plantation of Virginia, the most fertil and most 
 consonant to English bodies of any whatever, and will prove of greatest use in 
 time to the English nation." 
 
 t Parliamentary Papers of 1870, vol, kvii. See also those of 1871 and 1872. 
 
66 
 
 the morcellement of estates — ^is reckoned usually a national 
 advantage. 
 
 Forty-eight years ago, Gans, completing his survey of the 
 laws of Inheritance in all ages and nations, marked with 
 astonishment the imique survival of mediaeval jurisprudence 
 in England. He predicted the speedy repeal of the Corn 
 Laws, and, in its train, the abolition of that system of inhe- 
 ritance " whose rigid feudal organisation is out of harmony 
 with our time and its tendencies."* The prophecy was 
 sagacious. The Corn Laws have passed away, and our law 
 of descent has been stripped of many of its mediaeval pecu- 
 liarities. Half-blood kinsmen and lineal ancestors have 
 entered into their rights; but the younger children's claim 
 of kindred is not yet allowed. 
 
 Eight times since has that claim been urged within the 
 walls of Parliament. In 1836f the debate, which commenced 
 the new campaign, took place on the " Landed Property of 
 Intestates Bill," by which Mr. Ewart proposed to make 
 undevised real estate vest, like personalty, in the executor 
 or administrator, and be distributable by him among the 
 next of kin. Leave to bring it in was refused by 45 to 29. 
 His motion was renewed in the following April,:j: and 
 defeated by 54< to 21. Fourteen years elapsed, and the 
 struggle was revived by Mr. Locke King. In 1850 he intro- 
 duced the subject in one clause of a motion on the transfer 
 of Landed Property, which was defeated by 110 to 52. In 1854 
 he proposed a Parliamentary inquiry into the law of descent 
 — a proposal which, in the somewhat premature judgment of 
 Montalembert, "neither found an echo nor left a trace." His 
 " Succession to Real Estate Bill" was rejected by 203 to 82.§ 
 In 1859 the second reading of his "Real Estate Intestacy Bill" 
 was lost by 271 votes against 70.|| In 1866 he reintroduced 
 the Bill, and was defeated by 281 votes against 84 ;1T but 
 was more successful in 1869, when he obtained a majority 
 of 25, having 169 ayes against the 144 noes of his opponents.** 
 
 * Gans' " Das Erbrecht," Stuttgart, 1824-1829, vol. iv. 
 
 + Hansard xxxii., 898. t Hansard xxxvii., 734. § Hansard cxxxi., 506 
 
 II Hansard clii., 1157. IT Hansard clxxxiii., 1975. ** Hansard cxcvii., 18C3. 
 
67 
 
 When Mr. Locke King lost his seat at the last election, 
 Mr. T. B. Potter took up the cause. His " Real Estate 
 Intestacy Bill " was discussed on June 28th, 1876, and the 
 second reading was negatived by 210 to 175.* 
 
 This series of defeats will not discourage those who 
 remember the history of Romilly's attempts to reform far 
 graver errors in our law. That the current of opinion no 
 longer sets as strongly as it did in favour of Primogeniture 
 is sufficiently shown by a comparison of the earlier and later 
 Parliamentaiy divisions. Further evidence of it appears in 
 the fact that though the Real Property Commissioners of 
 forty years ago recommended the abolition of gavelkind in 
 favour of the common law, and a bill for the purpose was 
 introduced into Parliament, no such measure would be 
 attempted at the present day. Six years ago a Royal 
 Commission collected evidence as to the nature and working 
 of the partible descents of the Channel Islands, and reported 
 — " We do not consider that it would be desirable to alter 
 the law of succession to real estate in Jersey."-]- It may 
 safely be said that if gavelkind ever be abolished — as is 
 much to be desired — it will be in favour of a more impartial, 
 not a more unjust, system of descent. Nor is it unworthy 
 of notice among the advantages of the reform which is here 
 recommended, that it would afford an invaluable opportunity 
 of terminating all those local peculiarities of descent, which 
 serve only to introduce doubts into titles and complexity 
 into conveyances, breeding litigation, and rendering land 
 unmarketable. | 
 
 Reformers have hitherto attempted to supersede Primo- 
 geniture by the simple plan of assimilating the succession 
 laws of realty to those of personalty. Such a plan, con- 
 ferring rights upon the whole group of children, necessarily 
 involves, as in the case of personalty, the appointment of a 
 single successor, from whom purchasers may take their con- 
 
 * Hansard, ccxxx., 606. t Report of 1871, p. 13, 
 
 t An instance ia given by the Real Property Commissioners — First Report, 
 p. 170 — of a single house whose site was partly freehold, partly copyhold, and 
 partly leasehold. The owner died intestate ; the concurrence of the eldest son, 
 the youngest son, and the executor became necessary for its conveyance. 
 
 b 
 
68 
 
 veyances, and be relieved from the difficulty of tracing out all 
 the members of a family, and the expense of securing the 
 concurrence of them all in the deed. This simple and logical 
 plan introduces no new rule, but merely relieves our code 
 from the complexity of a double system of Succession Law, 
 making it deal with freehold lands just as it has dealt for 
 six hundred years past with leasehold ones. Yet, as 
 we have seen, it is doubtful whether, so long as our 
 political constitution remains based upon the distinction 
 between the Second and Third Estates, a corresponding 
 distinction must not also be preserved in our system of 
 inheritance. Let it be freely admitted that there is no 
 reason in the nature of realty why it should not be made to 
 descend by the rules which govern the distribution of 
 personalty; yet we would urge that, in any attempt to 
 effect that desirable reform, there is an absolute political 
 necessity for exempting from distribution all estates which 
 otherwise would descend, unsevered, to support the rank and 
 independence of a peer of England. 
 
 It may further be admitted that in the partible descent of 
 the lands of commoners, grave social and economical ends 
 would be furthered, with little disadvantage to the younger 
 children, and that the probable preference of the deceased 
 father would be consulted, if statutory provision were 
 made for the eldest son to have the option of purchasing the 
 real estate at its market value. Such purchases have been 
 found frequent wherever a system of partition is in force. 
 In Jersey local institutions exist which facilitate them — 
 there being in each parish six official appraisers permanently 
 appointed to effect all partages. In Wurtemburg it is the 
 duty of the SchuUheiss, or parish magistrate, to assess the 
 price at which the eldest son may redeem the land.* 
 
 A third provision may be suggested — that, to prevent 
 excessive morcellement, no estate should be actually par- 
 titioned if it were so small that the purparty of each child 
 would amount only to (say) two acres or less. It might be 
 made the duty of the executor to sell such an estate by 
 
 * Foreign Office Beport of 1870, ii., p. 80. 
 
G9 
 
 public auction, unless it were redeemed from him by one of 
 the children themselves. This provision would satisfy the 
 fears of many of the opponents of the proposed reform ; but 
 the experience of English leaseholders, as well as of Jersey 
 peasants, seems to show that the same end may be suffi- 
 ciently secured by the common sense of the coparceners 
 themselves. In France, however, public opinion now sets 
 in favour of a law of this kind ; and in Belgium such a law 
 exists, awarding all minute inheritances to the eldest son, 
 and charging him with pecuniary portions for the other 
 children.* 
 
 It may, indeed, without grudging the blessing which old 
 Plowden invoked upon " the amending hand," be questioned 
 whether the Parliamentary efforts that we have enumerated 
 were not made upon too sweeping a plan. Between the 
 artificial injustice of the present Primogeniture, and the 
 theoretical simplicity of the proposed reform, there lies a 
 mean; a mean which has the advantage of satisfying the 
 chief requisite of a good Intestacy law, for it represents the 
 prevailing practice of men who do not die intestate. Akin 
 in its relative estimate of children's claims to that principle 
 of a Prdciput, which obtained such general acceptance in 
 mediaeval times, it effects the apportionment in a manner 
 more in harmony with the varied requirements of children 
 in an age of busy commercial enterprise, and also with the 
 exigencies of modern conveyancing. We refer, of course, to 
 the everyday plan of giving the whole estate to the eldest 
 son, but charging it with pecuniary portions in favour of 
 the younger children. This course, familiar to every con- 
 veyancer, has once already within these kingdoms been 
 embodied in legislation. It was established for the lands of 
 conforming Papists, by that statute of 1704, which has 
 already been cited. It is enacted by 2 Anne, c. 6, s. 10 
 (Irish), that — 
 
 " In every case where such eldest son shall be intituled as aforesaid 
 by reason of his being a Protestant, such real estate shall be chargeable 
 and charged with siieh sum and sums of money for the maintenance 
 and portions of the daughters and younger sons of such Papist as 
 
 * Ibid., p. 128. 
 1? 9 
 
70 
 
 the Court of Chancery shall direct and appoint to be raised for them, 
 and shall he raised and paid according to such directions, such 
 portions not to exceed the value of one-third part of such estate." 
 
 The Primogeniture of feudal France was, except in 
 Normandy, usually qualified in this way. Similarly in Kent; 
 the copyholds of the manor of Eleham descend to the eldest 
 son ; but the Homagers assess the value of the land, and the 
 heir must pay each younger son the price of his aliquot 
 share.* 
 
 No stronger proof of the safety of such a rule can be given 
 than the fact that it is sanctioned by the authority of the most 
 strenuous and scientific of the defenders of Primogeniture, 
 large properties, and entails — the late Mr. McCulloch. He 
 fully admits that — 
 
 " The same rule should be adopted in distributing the property 
 of those who die intestate, which experience has shown as most 
 advantageous in the making of wills. When, therefore, there is a 
 landed estate, it should go to the eldest son, being, however, burdened 
 with a reasonable provision for the other children."t 
 
 This mode of reform has the further merit of preserving 
 the mother's inheritance to her children, and not making the 
 widower absolute owner, as the law of Personalty would do. 
 It is a question of detail, lying beyond the limits of the 
 present essay, whether the Legislature should fix the exact 
 proportion which the younger childrens' portions must bear 
 to the whole value of the land ; or should fix only the maxi- 
 mum and minimum proportions, leaving the actual propor- 
 tion in each case to be settled by the High Court of Justice 
 (or in successions of small rateable value by the County 
 Court judge), upon consideration as well of the respective 
 amounts of the personal and the real estate, as of the public 
 or merely private position to which the eldest son had suc- 
 ceeded. The necessity of supporting a Peerage would, of 
 course, form a weighty reason for lessening the charges to 
 be imposed on the land ; whilst a Primogeniture of this 
 qualified character might well be allowed to supersede the 
 present system of female coparcenery when a Peerage 
 descends to one of several daughters. 
 
 * Hasted, viii. 97. t Political Eccnomy, ed. 1843, p. 267, 
 
71 
 
 And now to bring to a close our task. We have described 
 an early age in which Primogeniture was unknown in Eng- 
 land. We have described a further age in which the pressure 
 of new social necessities introduced it with so steady and 
 resistless an advance, that it became at last a distinctive 
 peculiarity of England. We have found that those neces- 
 sities have disappeared, (as the objects which Primogeniture 
 was intended to secure have ceased to need its aid) ; and that 
 Primogeniture itself bids fair to follow them ere long 
 Finally, we have ventured to suggest the outlines of a law- 
 more in harmony Avith modem life. Tempora mutantur, 
 nos et mutam/wr in illis. 
 
APPENDIX. 
 
 Note A. 
 
 P. 8. — " Too'scanty to he ivorth partition.'' 
 
 The importance which considerations of the size of estates may have 
 in determining the law of inheritance is vividly illustrated by the 
 custom of some manors, where " the land is gavelkind if it exceed a 
 particular value ; if less, it is borough English." (First Report of the 
 Real Property Commissioners, p. 254.) 
 
 Note B. 
 
 r. 16.—" The Laws of Henry I." 
 
 The erroneous reading which has thus seriously obscured the 
 history of English Primogeniture, was probably derived by Hale from 
 Lambard's Archaioiiomia (Cambridge, 1644 ; p. 203). Henry's sup. 
 posed " Laws " are there reprinted from the Exchequer MS., with the 
 reading " Primum " for " Primo." 
 
 Note C. 
 
 P. 17. — " The son who shall take the roof tree." 
 
 Some readers may propose to explain these preferences, shown to a 
 particular son in partitive descents, upon a different principle, and 
 interpret them by Sir Henry Maine's Oriental illustrations (Early 
 Institutions, p. 1^1), as being merely a reward given to that son for 
 his impartial distribution of the family patrimony. Such a principle 
 did, in fact, establish a " reconnaissance de primogeniture " in the 
 Jersey law of personalty ; and Le Geyt, seeing this (I. 309), conjec- 
 tured that the same motive might, to a limited extent, have contri- 
 buted to the establishment of the eldest son's pr^ciput in realty_ 
 But that explanation is, I venture to think, sufficiently refuted by the 
 law of Normandy, under which (Terrien, book vi., chap. 3) the youngest 
 son is the apportioner of the lots, yet it is to the eldest that the 
 mansion house is given. 
 
 Note D. 
 
 P. 51. 
 
 The law of Intestacy, so rarely operative in England, has largely 
 influenced the economical condition of Jersey. For in that island 
 
11 APPENDIX. 
 
 wills of land wnv imknown till 1851 ; and as regards lands acquired 
 by descent, they are still only partly legalised. 
 
 Note E. 
 
 P. 67 
 
 The testimony of Mr. Nassau Senior is emphatic " I have made 
 thousands of wills and settlements, and not one in a hundred was 
 based on any principle but that of equal partition." {Furtnigfdly 
 Review., Oct., 1877, p. 539.) 
 
LAW AND CUSTOM OF 
 
 PRIMOGENITURE 
 
 BEING AN ESSAY WHICH, JOINTLY WITH ANOTHER, OBTAINED THE YOKKE 
 PEIZE OP THE UNIVERSITY OP CAMBEIDGE). 
 
 By PERCEVAL M. LAtTRENCE, RA., 
 
 FELLOW OF CORPUS CHRIST! COLLEGE, 
 
 WHEWELL SCHOLAR AND MEMBERS' PRIZEMAN IN THE UNIVERSITY OF CAMBEIDGE, 
 
 AND OP LINCOLN'S INN, 
 
 TANORED STUDENT IN COMMON LAW. 
 
 Le partage des biens, les lois sur ce partage, lea Buocessions aprfes la mort de 
 oelui qui a eu ce partage ; tout cela ne peut avoir ^t^ rig\4 que par la socidt^, et 
 par consiSquent par des lois politiques ou civiles. — Montesquieu, Esprit des 
 Lois, xxvi. 6. 
 
 CAMBRIDGE :— J. HALL AND SON, TRUMPINGTON STREET. 
 
 LONDON :— BEEVES AND TURNER, CHANCERY LANE. 
 1878. 
 
TO 
 
 SIR HENRY SUMNER MAINE, K.C.S.I., LL.D., F.R.S., <fcc., (Lc, 
 
 MASTBK OF TRINITY HALL, 
 
 THIS ESSAY IS BY PERMISSION RBSPBCTrULLY INSCRIBED 
 
 IN TOKEN or THE WRITER'S GEATEEUL SENSE 
 
 OF THE INVALUABLE AID HE HAS RECEIVED 
 
 IN THE. STUDY OP JURISPRUDENCE AND 
 
 COMPREHENSION OJ HISTORY 
 
 FROM THE PUBLICATIONS OP THE AUTHOR OF 
 
 •■ ANCIENT LA W." 
 
LIST OF STATUTES REFERRED TO. 
 
 20 Hen. III. c. 6 (Statute of Merton) 
 
 3 Edw. I. c. 36 (Westminster the First) . . . 
 13 Edw. I. c. 1 (Z)e /)omm) 
 
 18 Edw. I. c. 1 (Quia emptores) 
 
 25 Edw. I. c. 5, 6 {Confirmatio Chxxrtarum) 
 
 1 Edw. III. c. 12 (Tenants in capite) 
 34 Edw. III. 0. 13 (Fines) 
 
 9 Eic. II. c. 3 (Life Tenants) 
 15 Ric. II. c. 5 (Mortmain) 
 
 1 Ric. IIL c. 7 (Fines) 
 
 4 Hen. VII. c. 24 (Proclamation of fines) 
 
 32 Hen. VIII. c. 1 (Wills) 
 
 33 Hen. VIIL c. 39 (Crown Debts) 
 
 34 & 35 Hen. VIIL u. 5 (Wills) ... 
 12 Car. II. c. 24 (Feudal tenures) 
 
 22 & 23 Cae. IL c. 10 (Distribution) 
 
 Uac. IL c. 17 (Ibid) 
 
 1 Jac. VII. c. 22 (Scotland— Tallies) 
 
 4 & 5 Anne c. 16 (Attornment) 
 
 3 & 4 Will. IV. c. 74 (Fines and Recoveries) , 
 3 & 4 Will. IV. c. 106 (Descents) 
 
 10 Geo. III. c. 51 (Scotch entails) 
 
 8 & 9 Vict. c. 106 (Contingent remainders) 
 
 11 & 12 Vict. c. 36 (Scotch entails) 
 
 15 & 16 Vict. c. 51 (Copyholds) 
 
 16 & 17 Vict. c. 94 (Scotch entails) , 
 
 17 & 18 Vict. c. 113 (Mortgage debts) ... . 
 
 19 & 20 Vict. c. 120 (Leases and Sales) ... . 
 
 21 & 22 Vict. c. 94 (Copyholds) 
 
 25 & 26 Vict. c. 53 (Title) 
 
 30 & 31 Vict. c. 69 (Mortgage debts) 
 
 33 & 34 Vict. c. 23 (Attainders) 
 
 37 & 38 Vict. c. 78 (Vendor and Purchaser) 
 
 38 & 39 Vict. c. 87 (Laud transfer) 
 
 38 & 39 Vict. c. 92 (Agricultural holdings) 
 
 39 & 40 Vict. c. 74 (Ditto amendment) . , , . 
 
 40 & 41 Vict. c. 18 (Settled Estates) ... . 
 
 PAGE. 
 
 39 
 
 38 
 
 49, 53 
 
 45 
 
 38 
 
 45, 53 
 
 58 
 
 57, 60 
 
 55 
 
 58 
 
 58 
 
 45, 59 
 
 56 
 
 45 
 
 59 
 
 135 
 
 135 
 
 64 
 
 39 
 
 59, 62 
 
 43 
 
 66 
 
 62 
 
 67 
 
 106 
 
 67 
 
 56 
 
 106 
 
 106 
 
 111 
 
 56 
 
 65 
 
 110 
 
 110 
 
 107 
 
 107 
 
 107 
 
E R E A T A. 
 On p. 30, line 4, and p. 31, line 12, for ahow read shew. 
 On p. 75, line 14, /or Mommson read Mommsen. 
 On p. 83, note, /or corn per hectare read bushels of corn per acre. 
 
TABLE OF CONTENTS. 
 
 PAGE. 
 
 Section 1. — The origin of Primogeniture in the early 
 
 HISTORY OF Aryan institutions 1 
 
 Section II. — Primogeniture and Feudalism in England... 25 
 
 Section III. — The History of Entails 51 
 
 Section IV. — Economical aspects of Primogeniture 70 
 
 Section V. — Social and political aspects of Primogeniture 115 
 
 Section VI. — The Law of Intestate Succession 133 
 
 Section VII. — On the policy of change in the land laws ... 150 
 
 Index 157 
 
THE 
 
 yato antr Citstnm 0f 1|iim00^mturt. 
 
 Section I. — The Origin of Pbimogeniture in the Early 
 History of Aryan Institutions. 
 
 The history of the custom of Primogeniture in England 
 cannot be satisfactorily treated without some preliminary 
 examination of the circumstances, conditions, and laws — 
 whether imposed by sovereign power or sanctioned by custom 
 and tradition — in a word, of the social atmosphere in which 
 the privileges of the eldest son first arose. And this takes 
 us back to a very remote period in the history of society. 
 It is true that the traces of any similar institution which we 
 are able to discover in the recorded history of those ancient 
 peoples with whose annals we are most familiar are extremely 
 slight; and to a superficial observer they would perhaps 
 appear most palpably to disclose themselves in the records of 
 a branch of the human family unconnected with our own — 
 those Semitic tribes, I mean, into whose social institutions 
 we obtain some precarious* insight from the incidental 
 testimony of Scriptural history, and from whom it is impro- 
 bable that any material portion of Aryan law or custom 
 has been borrowed or derived. At the same time, the very 
 scantiness of these vestiges in one sense increases the 
 importance of their careful examination. For though we 
 are unable to affirm the existence of what we understand by 
 
 * By this epithet I of course merely mean that the Old Testament neither 
 contains, nor affects to contain, a philosophical account of the ancient Jewish 
 institutions. It is in the main a political history of the vicissitudes of a 
 theocratic State. 
 
 B 
 
Primogeniture among tlie ancient Greeks and Romans of the 
 South, or the Franks and Gauls of Northern and Western 
 Europe, we may yet feel some confidence that a patient 
 scrutiny will reveal its germs. Otherwise it is not easy to 
 comprehend how the period of anarchy which gave birth to 
 Feudalism should have also produced this institution as its 
 inseparable appendage. The seeds must have been lurking 
 somewhere; and it is interesting to observe the conditions 
 which brought the embryo into light. "There are always 
 certain ideas," writes Sir Henry Maine, "existing ante- 
 cedently 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."* 
 
 In the chapter wherein the above passage occurs. Sir 
 Henry makes it probable, for reasons which I shall subse- 
 quently endeavour to develop, that the origin of this custom 
 is to be found in the primitive family life which confronts 
 us on the very threshold of Aryan society. It may at least 
 be affirmed with safety that we need not pursue our back- 
 ward search to an earlier period than that in which the 
 family ties and the family relations, knit together by the 
 paternal power, are supreme, while society itself is based on 
 consanguinity alone. It is not here asserted that this is the 
 most archaic form of social organisation which modern 
 inquiry is able to detect. It is possible that there may have 
 been a prre-Aryan period, of which all that we know as 
 Aryan — that social life of which the above are the most 
 salient characteristics — was merely a developinent, instead 
 of being, as until recently was assumed, the immemorial 
 heritage of one alone among the great races of mankind. 
 It is possible that as the family, according to the testimony 
 of Aristotle and of experience, produced the tribe, so in a 
 yet more primitive period the family itself arose out of a 
 modification of an antecedent tribal system. There can be 
 little hesitation in attributing this modification to the intro- 
 duction of monogamy. Mr. McLennan and other writei'S 
 
 * Ancient Lav/, p. 233, 
 
have shewn that there is some reason to believe that mono- 
 gamy was generally preceded by a prEe-historic era in which 
 polyandry was the ordinary form of sexual union. In 
 barbarous ages, as among many savage tribes of the present 
 day, the practice of female infanticide produced a vast dis- 
 proportion between the male and the female population. 
 -The feminine sex was regarded as an unproductive luxuiy, 
 of which the preservation could only be tolerated under 
 severe restrictions. If a tribe were weak, policy forbade it 
 to burden itself with a superfluous number of beings whom 
 nature had incapacitated for performing substantial service 
 in the battle or the chase. When it became stronger, it 
 seemed both convenient and agreeable to obtain such women 
 as were required by conquest, violence or theft. Tribes 
 , once endogamous by necessity thus became exogamous by 
 choice ; and an opportunity sometimes occurred under these 
 circumstances, when warlike success had produced riches, 
 for the chiefs of a powerful tribe to go to the other extreme, 
 and substitute polygyny — or polygamy in the ordinary 
 sense — for the converse practice of polyandry.* It is by 
 this latter custom alone, repulsive as it may seem to modern 
 feeling, that we are able to explain the rule which we know 
 to have prevailed, by which relationships were traced exclu- 
 sively through the female parent. Another stage was 
 reached when, as the security and stability of life increased, 
 perhaps simultaneously with the introduction of agriculture, 
 a return to endogamy once more took place. Mr. McLennan 
 indeed shews, as might have been expected, that this order 
 of events was not invariable ; but their course was probablj^ 
 in the large majority of instances somewhat as indicated 
 above. The era — usually polyandrous — of " captiire " gave 
 place to a — frequently polygjoioits — era of " purchase," 
 which was itself eventually superseded by a era of " pre- 
 sents," in the main coincident with the establishment of 
 monogamy, and the beginning of Aryan civilisation. Without 
 here asserting any absolute generic difference between 
 
 * Traces of polyandry are to be found in some of the institutions which we 
 know to have existed at Sparta. 
 
 B 2 
 
" Aiyan" and other races, we are at least justified in saying 
 that we meet with no Aryan people, in which what is best 
 known as the "patriarchal system" did not in some form or 
 other exist. At the same time it would probably be incor- 
 rect to reverse the proposition, and affirm that every race so 
 organised, at the earliest period at which history begins, was 
 of Aryan origin ; since we have abundant evidence that a 
 similar state of society — though always complicated and 
 debased by the practice of polygamy — prevailed among 
 several of the Semitic tribes. 
 
 The extension of our social retrospect to so early a period 
 in the history of institutions as that which coincides with 
 the establishment of monogamy, may perhaps suggest a 
 reproach analogous to that incurred by the historian of the 
 Trojan war, who commenced his narrative with an account 
 of the incubation of Leda's egg. However, as has already 
 been remarked, in the more advanced stages of Aryan 
 society we meet with but scanty evidence of any pro- 
 prietary privileges attached to the position of eldest son. 
 Such privileges may possibly have once existed ; but when 
 the family had grown into the village community, still more 
 when it had been absorbed in the organisation of the citj', 
 they had almost entirely disappeared. We find little trace 
 of any similar institution among the Hindus, the Greeks or 
 Romans, the ancient Germans or the ancient Kelts. And 
 yet a brief examination of the main features of the succession 
 laws which prevailed among these nations •will not, I bebeve, 
 be altogether irrelevant to our present purpose. 
 
 It is well known that in India the partition of the family 
 inheritance has never been an ordinary result of the demise 
 of its head. It was, in fact, this very retention of domicile 
 and land in common which must have originally produced 
 those village communities with the nature of which the 
 observers of Indian institutions have made us so familiar.* 
 It appears, however, that so far from the eldest son having 
 any rights of ownership superior to those enjoyed by his 
 
 * See, for example, " Tagore Law Lectures, 1874-75 : The Law relating to the 
 Land Tenures of Lower Bengal." By Arthur Bhillips, M.A., Officiating Stand- 
 ing Counsel to the Government of India, V. 10, "The Origin of the Village." 
 
brothers, the native customary law vested in every son, from 
 the moment of his birth, a share in the paternal estate, and 
 indeed gave him a technical right, seldom actually exercised, 
 of demanding, on attaining full age, a partition of the pro- 
 perty. The consent of every male child was always neces- 
 sary to its alienation, and whenever a division was effected, 
 each received an equal portion* This practice in its main 
 features still subsists. Indian law is as solicitous as that of 
 England in its efforts to preserve the connection between 
 each family and its ancestral lands, but its modus operandi, 
 as thus appears, is widely different. The representative 
 rights of the eldest son must be subsequently considered; 
 but it may safely be asserted that it is not until a compara- 
 tively recent period in the history of the Indian law that 
 any traces disclose themselves of proprietary advantage 
 being involved in priority of birth. We for the first time 
 encounter something analogous to our own system of Primo- 
 geniture when we arrive at the period of the Zemindars and 
 Talookdars, classes which owe their importance to the 
 Muhammadan period, and whose proper position with 
 reference to the land and the rival claims of the village 
 communities has for many years presented so perplexing a 
 problem to the British Government.^ Mr. Arthur Phillips, 
 in his valuable and exhaustive lectures on the land law of 
 Lower Bengal, inclines to the belief that the Zemindars 
 were in many cases the lineal descendants of the village- 
 Headmen. J The Zemindars, however, gradually absorbed 
 the rights and functions of many such local heads, and for 
 the purpose of collecting the revenue represented to the 
 Muhammadan, and subsequently to the British Government, 
 not a single village but an entire district, or fiscal division. 
 It appears from Dr. Hunter's admirable work on Orissa 
 
 * See Maine, Ancient Law, pp. 228, 233, 280. The sons as a, rule were 
 only recommended by the Law of Manu and regular custom to provide their 
 sisters with portions. See La CiU Antique, par M. Fustel de Coulanges, 
 p. 81. 
 
 + See Maine, Village Communities, pp. 149-161. With regard to the orlijin. 
 qf this class, see especially p. 156. 
 
 t Tagore Law Lectures, ut supra, pp. 31, 64, 66. 
 
that, as the result of careful investigation and personal 
 observation in that province, he arrived at conclusions with 
 regard to the origin and nature of this class of superior land- 
 holders not greatly dissimilar to those which Mr. Phillips 
 deduces from his researches in Bengal.* We are especially 
 indebted to Dr. Hunter for a lucid explanation of the manner 
 in which, under the lax rule of the Musalmans, the Zemin- 
 dars and Talookdars grew from mere revenue officers and 
 local representatives into the position of proprietors, claim- 
 ing, though without complete success, an indefeasible right 
 to the soil. I now come to the point which has induced me 
 to dwell on the position of these Zemindars. Their power 
 arose in turbulent times, when the central Government was 
 extremely weak, little able to resist the encroachments of 
 strong local chieftains, and scarcely anxious to do so, pro- 
 vided the customary revenue dues were punctually paid to 
 the imperial treasxiry. The Zemindars and other subordinate 
 landholders owed their position to a gradual and fraudulent 
 assumption, and could not reckon on retaining it except by 
 their own strength. We hear of their unjustifiable preten- 
 sions as early as the beginning of the fourteenth centuiy, in 
 the reign of Ala-ood-deen. Now in this era of violence and 
 — to borrow a convenient phrase of Sir Fitzjames Stephen — 
 of " dormant anarchy,'' it became of the utmost importance 
 to the Zemindars to convert the system of appointinents 
 to the posts they held into a system of hereditary 
 succession. The feeble government of the Muhammadans 
 was unable to assert its rights, and the customary mandate 
 of appointment, on the demise of a Zemindar, dwindled into 
 a tacit recognition of his son and successor.f It is very 
 interesting to observe that it was under these circumstances 
 and among this class that a system of Primogeniture seems 
 to have first arisen in India. The encroaching landholders 
 appear to have discovered that the only method of securing 
 the privileges they had won lay in transmitting their pos- 
 
 * Orissa. By W. W. Hunter, LL.D. London : Smith, Elder, and Co. 1872. 
 See Vol. II., pp. 214-230, 239, 240, 255-261. 
 
 t Ibid, p. 227. 
 
7 
 
 sessions to the eldest son alone. Mr. Phillips, indeed, con- 
 siders that this method of succession, "which is almost confined 
 to the superior Zemindaries, points to a descent of the 
 Zemindars from the ancient Rajahs, the raj — which was of 
 course in the main a political oifice — having undoubtedly 
 descended in this manner.* It is somewhat remarkable 
 that this Indian form of Primogeniture was on the whole 
 unfavourably regarded by the British administrators up to 
 the time of the Permanent Settlements effected, by Lord 
 Cornwallis in Lower Bengal in 1793, and subsequently, in 
 1815, in the province of Orissa. The eleventh Regulation of 
 1793 deals with this matter ; and after reciting that " by 
 custom originating in considerations of financial convenience," 
 some of the most extensive Zemindaries descended by 
 Primogeniture ; that such a custom was repugnant both to 
 Hindu and Muhammadan laws, and subversive of the rights 
 of the other members of the family; that it moreover 
 hindered improvements, " from the proprietors of those large 
 estates not havinsr the means, or beino; unable to bestow the 
 attention requisite for bringing into cultivation the exten- 
 sive tracts of waste land comprised in them ;"-f it was 
 accordingly enacted that for the future, on any Zemindar or 
 independent Talookdar dying intestate, his property was to 
 be equally divided among his lineal representatives. J The 
 equal division of landed property on intestacy is earnestly 
 advocated by a section of law reformers and economists in 
 England ; the discussion of the policy of such a change must 
 be reserved for another section ; it is, however, worth while 
 to notice that it was considered desirable to establish a 
 uniform rule to that effect in India more than eighty years 
 ago. At the same time it should be added that in the year 
 1800 a subsequent regulation excluded from the operation of 
 the law of 1793 certain districts in which Primogeniture pre- 
 vailed as a general local custom, and not merely as the 
 
 * Tagore Law Lectures, ut supra, pp. 64, 99. 
 
 t This view of the effect of large holdings on the cultivation of waste lands 
 in India differs very widely from that put forward by Sir Henry Maine : see 
 Village Communities, pp. 161-165. 
 + Tagore Law Lectures, p. 390. 
 
usage of particular estates. "To this day," says Sir 
 George Campbell, "I believe that it is not very clear 
 what estates do, and what do not, descend to a single 
 heir; but the matter is not so important because the courts 
 have recognised the power of Hindus to make wills. The 
 Hindu laws say nothing of wills, and it is very doubtful 
 whether they should have been admitted; but the courts 
 acting on English precedents* having once admitted them, 
 this curious result has followed that, in the absence of any 
 provisions to limit them, the power of a Hindu in Bengal to 
 tie up his property by will is almost unlimited."-f- 
 
 Were it not for the extreme importance to the histoiy of 
 social development of Indian institutions, such as we either 
 see them now, or know them to have formerly existed, and 
 
 * Some very interesting remarks on the effect of English law and English 
 precedents on the Indian Courts, Sudder as well as Supreme, are to be found 
 in Maine's Village Oommunities, pp. 36-47. The following passage may be 
 quoted as illustrating Sir George Campbell's observations: — "The judges who 
 presided over the most important of these courts very early recognised the 
 existence of testamentary power among the Hindus. It seems that, in the 
 province of Lower Bengal, where the village system had been greatly broken up, 
 the head of the household had the power of disposing of his patrimony during 
 his life. Whether he could dispose of it at death, and thus execute a disposi- 
 tion in any way resembling a will, has always been a much disputed question, 
 which, however, contemporary opinion rather inclines towards answering in the 
 negative. However that may be, the power of making a will was soon firmly 
 established among the Hindus of Lower Bengal by, or through the influence of, 
 the English lawyers who first entered the country." — p. 40. He then proceeds 
 to give some examples of the capricious manner in which this power has occa- 
 sionally been exercised. In one case, decided after the publication of Village 
 Communities, " a Brahmin of high lineage, who made a fortune at the Calcutta 
 Bar, aimed at disinheriting or excluding from the main line of succession a 
 son who had embraced Christianity." Writhig pendente lite Su' Henry adds: — 
 " All I can say without impropriety is that, in those parts of India in which the 
 collective holding of property has not decayed as much as it has done in Lower 
 Bengal, the liberty of testation claimed would clearly be foreign to the 
 indigenous system of the country. That system is one of common enjoyment 
 by village communities, and, inside those communities, by families. The 
 individual has almost no power of disposing of his property; even if he be chief 
 of his household, the utmost he can do, as a rule, is to regulate the disposi- 
 tion of his property among his children within certain very narrow limits." 
 Pp. 41-42. The validity of the will here referred to was subsequently affirmed 
 by the Privy Council (Ganendro Mohun Tagore v. Rajah Jotendro Mohun 
 Tagore and others. Law Reports, Indian Appeals, 1874, p. 387). 
 
 + Systems of Land Tenure in Various Countries, p, 177. 
 
9 
 
 the remarkable analogy which a careful scrutiny has so often 
 detected between portions of the Indian land-law and that 
 which prevails, or, up to comparatively modern times, has 
 prevailed in Western Eui-ope, I should fear that too much 
 space had been already occupied with the discussion of topics 
 only indirectly connected with the immediate subject of this 
 essay. The law of intestate succession in Greece and at 
 Rome has been so often and so fully discussed that it may 
 be here passed over with the briefest mention. At Athens, 
 as is well known, the sons in such case inherited in equal 
 shares, being, however, under an obligation to maintain 
 their sisters and provide them with marriage portions. Where 
 there were no sons, the daughters were still excluded from 
 succession, the property going, subject to a similar condition, to 
 the nearest male kinsman. At Sparta, the women occupied 
 a better position ; and we learn that at the period when 
 Aristotle wrote his Politics the number of heiresses was 
 very considerable, so great, indeed, as to have been regarded 
 by the philosopher as presenting a grave political danger. 
 We know that at Rome the inheritance by women of the 
 property of an intestate father, who had been enrolled on 
 the census, was circumscribed by the Voconian Law ; and 
 we know also that by the legislation of Justinian daughters 
 were placed on the same footing in respect to succession to 
 property on intestacy as sons. The period, however, during 
 which the Lex Voconia exercised a sensible influence — ^before 
 its evasion by the system of fidei-coinmissa — has not 
 been ascertained with precision ; and there is still greater 
 uncertainty as to the rules of distribution which prevailed 
 in the early Republican period. Some controversy has 
 arisen as to the exact interpretation of the well-known 
 fragment of the twelve tables, " Si intestato moritur cui 
 suus haires nee sit, adgnatus proxhnus familiam habeto."* 
 The general opinion, adopted among others by Hugo, Orto- 
 lan and Maine, is that, where an intestate father left sur- 
 viving children, the paternal inheritance was equally divided 
 
 * See Ortolan, Histoire de la Legislation Eomaine, Third Edition, p. 90, 
 nt. 1. 
 
10 
 
 among all the uncmancipated sons and daughters. M. Fustel 
 de Coulanges, on the other hand, argues with considerable 
 plausibility in favour of the opposite view, and maintains 
 that daughters were excluded at Rome as well as in India 
 and at Athens ;* and in any case it cannot be doubted that 
 a merely nominal equality on their part must have been of 
 little eiRcacity, on account of the system of perpetual tutelage 
 to which we know them to have been subjected. With 
 regard to the sons, however, the fact that they succeeded to 
 the paternal estate in equal shares has seldom been contested. 
 Mr. McCuUoch, it is true, has endeavoured to raise some 
 doubts on the point. " It is not easy to suppose," he says, 
 " that the equal division of property among the sons would 
 be generally practised by parties who resorted to such means 
 (he refers to the custom of adoption) for perpetuating its 
 descent in the same lines." This presumption, however, would 
 appear to rest on a very doubtful and probably deceptive 
 analogy ; and it certainly does not seem an irresistible infer- 
 ence from the circumstance that in one particular the Roman 
 method of perpetuating family estates differed — because ac- 
 tuated, as we know, by widely different motives — very greatly 
 from our own, that therefore in another particular it must 
 have resembled that with which we are ourselves familiar. 
 Mr. McCulloch proceeds to adduce the existence of the well- 
 known latifunclia in the later Republican and Imperial 
 periods, and their devolution in regular lines, as a proof that 
 the Roman paterfamilias was accustomed to devise his pro- 
 perty in a method more nearly resembling that of Primo- 
 geniture than that of equal division.^ When, however, we 
 take into consideration the fact that such hereditary estates 
 were probably the reverse of numerous, and that our infor- 
 mation concerning their character and origin is extremely 
 scanty, and when we also remember the many opportunities 
 which a Roman nobleman of the period ref ei-red to, especially 
 if engaged in the work of pi'ovincial government, must have 
 
 * La Cit^ Antique, Livre ii., t. 7. Le Droit de Succession, pp. 81, 82. See 
 also, A Treatise on the Succession to Property Vacant by Death, by Mr. McCul- 
 loch, pp. 18—21. 
 
 t A Treatise, &o., ut supra, p. 20, note. 
 
11 
 
 commanded for enriching himself, we shall certainly hesitate 
 to draw so bold a conclusion from such slight and precarious 
 premises. It is more probable that the Roman testament 
 was frequently employed in order to restore to the eldest 
 son a share in the family property, Avhich, owing to his 
 emancipation from the paternal power, he would have failed 
 to receive on a distribution ab intesfato than that he 
 habitually acquired by his father's bequest any extensive 
 proprietary advantages over the younger children. 
 
 Enough has been said to shew that among the Hindus, 
 Greeks and Romans, intestate succession was seldom if ever 
 regulated by the principle of Primogeniture. Neither was 
 it frequently adopted in the testamentary dispositions by 
 which the course of the law was modified and controlled. 
 It is important, moreover, to observe that the restrictions 
 which limited the disposition by will of landed property in 
 early times were always very great. In the Hindu law, as 
 has already been pointed out, there was no such thing as a 
 true will. At Athens there was none until the time of 
 Solon ; and that which was then legalised — but only in the 
 event of a testator having no surviving children — was so 
 partial in its operation as to be accurately described as a 
 merely " inchoate " " testament. A striking passage in the 
 Laius of' Plato attests the prejudice experienced by the 
 ancient promulgators of codes against any claim to a 
 posthumous control over landed property.* Among the 
 Germans, as among the Hindus, the allodial estate descended 
 in equal shares — though not habitually divided — to all the 
 
 • Plato's yiew is, that each man belongs not to himself, but to his family 
 and city; moreover, he distrusts an old man's judgment, perverted, it may be, 
 by declining faculties, and the interested flattery of those around him. The 
 main anxiety of the philosopher is to preserve the ancestral lots — 5040 in 
 number — intact ; for this purpose it is desirable to restrict the number of 
 children to two, to represent their parents in the succeeding generation. The 
 hereditary property must descend entire to one son ; but if the father has more 
 than 6ne, he may determine by will on whom it is to devolve. Whatever other 
 property the father may possess — his personal acquisitions, in fact — he may 
 distribute among his children in any proportion he pleases. — Plato, Legg. xi., 
 pp. 923, 924 ; Grote, Plato, Vol. III., pp. 434-436. The latter remarks on the 
 ■general coincidence of tone between the philosopher and the prevalent Attic 
 sentiment on these points. 
 
sons, on the parent's death.* We know that the rules which 
 regulated the Irish system of Gavelkind were equally rigid- 
 It is true that Sir Henry Maine considers it probable that, 
 as the Irish Gavellcind was only an archaic form of the 
 familiar custom still prevalent in the county of Kent and 
 certain other districts in England, so the Irish Tanistry was 
 really the form of succession from which the English Primo- 
 geniture itself descended ;f but it is important to notice that 
 Tanistry, like many other of the ancient privileges of the 
 eldest son to Avhich I shall shortly draw attention, was 
 rather a political than a ^proprietary institution ; it deter- 
 mined the right to the signory or chieftainship of the tribe 
 or sept, and any lands which the Tanaist acquired therewith 
 were incidental and not essential to his prerogative. In 
 the early history of feudalism in England we find similar 
 restrictions — of the gradual relaxation of which a full 
 account must be reserved for a succeeding section — on 
 testamentary alienation of the demesne land; and it is 
 not unreasonable to conjecture that they were to some 
 extent formed on the model of those rules which, 
 prior to the introduction of feudalism, determined the 
 succession to the allodial domain. As early as the reign 
 of Henry I., the distinction between inherited property and 
 that acquired by the independent exertions of the owner — 
 a distinction which may be said to have formed in almost 
 all Aryan societies a landmark in the history of the right 
 of alienation — was expressly recognised by the common law. 
 Acquisitiones suas, says the compilation known as the 
 Seventieth Law of that monarch, det cui mag is velit : si 
 Bodandl autem habeat quam ei jjarentcs sid dederint, non 
 viittat earn extra cognationem suam. 
 
 * Heredeg tamen sucoessoresque sui cuique liberi, et nuUum testamcntum. 
 Si liberi non aunt, proximus gradus in possessione fratres, patrui, avuncuU. — 
 Tac. Germ. 20. See also Maine, Ancient Law, p. 228 ; and Early History of 
 Institutions, p. 199. 
 
 + Early History of Institutions, p. 186. 
 
 t JBodand or " book-land " was that granted to individuals. In the period 
 previous to the Norman invasion, by charter. It wa,s contrasted with the folc- 
 land, or land of the people, which seems to have greatly resembled the Roman 
 agcr publicus : it could be occupied by individuals as tenants of the State, but 
 the king could not make grants out of it without the consent of the Witan. 
 
13 
 
 The result of the foregoing summary would appear to be 
 that the early institutions of India and Greece, of Germany, 
 Ireland and England, recognised the principle of equal dis- 
 tribution on intestacy, sometimes among all the children, 
 sometimes among the sons alone, occasionally, as in Ireland, 
 among a class of kinsmen who formed the sept, and who 
 appear to have practically corresponded to the Roman 
 agnates ; wills were either unknown, or strictly confined in 
 their operation to acquisitions, or movables, or "personal 
 property." At Rome, it is true, the case at first sight 
 appears to have been somewhat different. "We know that 
 at the very early period when practically every citizen was 
 a member of a gens, wills could only be made publicly in 
 the Comitia Curiata, and with the express consent of the 
 testator's Gentiles. But by the time of the decemviral 
 legislation these restrictions had evidently become ex- 
 tremely burdensome, and we accordingly find in the Fifth 
 Table the famous clause, Uti legassit super pecimia tutela- 
 ve sum rei ita ius esto. Sir Henry Maine thinks there can 
 be no doubt that this formula was intended to sanction the 
 plebeian or nuncupative testament by mancipation ; but very 
 different views have been maintained by other eminent 
 authorities; and its precise significance is still to some 
 extent a matter of doubt. What I wish, however, in this 
 place to particularly point out is that this fragment is 
 probably itself fragmentary ; and that it is extremely 
 dangerous to construe it, in ignorance of its immediate con- 
 text, as if it necessarily involved a plenary power of dis- 
 inheriting the suus hcares, or natural heir. That such a 
 power was at a later period occasionally exercised, and that 
 legislation was found necessary to check its abuse, is 
 sufficiently well known;* but there seems no reason to 
 assume with Sir Henry Maine that it was actually conceded 
 by the decemvirs, in the confident expectation that it would 
 never be exercised. The law of Solon contains the words 
 SidOeaOai ottwq av sOeAtj; had it not been that a limiting 
 condition — av (xn irdlScQ wat — immediately precedes them, we 
 
 * See especially Ancient Law, pp. 215-217. 
 
14 
 
 should have imagined that it also conferred an unlimited 
 liberty of bequest. It is surely by no means impossible 
 that the Eoman statute proceeded to add, or had previously 
 contained, some such clause as si cm nuUi sint liberi. In 
 this case the rights of the children would be carefully pre- 
 served ; and if the permission applied only to the plebeians, 
 there were at that time no Gentiles, possibly in the technical 
 sense no Agnates, whose rights could be infringed.* 
 
 It appears to be worth while to briefly consider the. reasons 
 which in early times produced this strict connection between 
 the family and the land, and which so constantly relegated 
 the actual possessor to a position little superior to that of a 
 life tenant. It is indeed only from an examination of this 
 point that we are able to comprehend the important 
 privileges which, notwithstanding all that has been said, 
 undoubtedly attached to the position of eldest son. Our 
 explanation of this question must necessarily depend on the 
 solution which we prefer to acceptof another andfarmder pro- 
 blem, to which only the slightest and most cursory allusion can 
 • here be made. What was thetiewhich bound the ancient family 
 together? Why did society at a primitive period assume the 
 shape and organisation which we know that it presented? 
 Two conflicting answers to this question have been suggested, 
 both of which appear to contain a certain amount of truth; 
 while at the same time each hypothesis has; I think, been 
 unduly pushed to account for phenomena which may be best 
 explained by the rival theory. According to the view of 
 which Sir Henry Maine — a writer to whose works, in any 
 investigation belonging to this department of inquiry, it is 
 almost impossible to avoid the most frequent reference — is 
 the principal exponent, the reply to the question suggested 
 above is extremely simple. Society was entirely based on 
 consanguinity because in its earlier stages there was no other 
 bond by which it could possibly be held together. The rules by 
 which authority was maintained, property administered, and 
 
 * By the mature jurisprudence of the Empu-e we know that the legitimate 
 claitas of the children were jealously protected ; the lec/itima portio was fixed 
 hy the Code of Justinian as one-half or one-third of the patrimony, according 
 as the children did or did not exceed four in number. 
 
15 
 
 its devolution regulated, in the Joint Undivided Family, the 
 Village Community, the Sept, the Tribe, and the archaic State, 
 existed because they were emphatically natural, and because 
 it could not possibly have occurred to those who framed and 
 obeyed them to frame or obey laws of any other kind. This 
 view is of course substantially the same as that adopted by 
 Aristotle, in the opening chapters of the Politics, where he 
 explains that before kings and lawgivers arose each family 
 was under the absolute government of its own head — who 
 exercised an authority theoretically as complete as that of 
 Homer's Cyclops — and that it was out of these isolated groups 
 that the kwjujj and ultimately the ttoXiq grew. 
 
 We are, however, at present more immediately concerned 
 with the counter-theory, of which the most complete exposi- 
 tion has been given in M. Fustel de Coulanges' interesting 
 monograph on La Cite Antique, and which has been warmly 
 adopted by the latest English historian of Greece, Sir George 
 Cox. According to M. de Coulanges, the ancient family was 
 knit together exclusively by the influence of a religious feel- 
 ing, or, as we should say, of a superstition of the grossest 
 kind. He thus explains the tenacity with which it resisted 
 all modifications from without, and its comparative inaccessi- 
 bility to the solvent influence of civic life. Similarly, Sir 
 George Cox regards the Family as an extremely unmalleable 
 institution, against which the State, strengthened in the 
 contest by extraneous elements, had to contend as best it 
 could, and is thus led to re-echo the bitter complaint of 
 the Epicurean poet against all the evils which religion was 
 able to counsel and suggest.* The superstition refejTed to 
 consisted in a belief that the dead ancestor of the family 
 still lived within the tomb, that his comfort and well-beino- 
 depended on the assiduity with which his material wants 
 were gratified by his descendants, and that he was able and 
 inclined, if neglected or despised, to exercise a malign 
 influence on the future prosperity of his house. There can 
 be no doubt of the extreme ingenuity of this hypothesis; it 
 accounts for much in ancient society which had hitherto 
 
 * Cox's History of Greece, To!. I., chap, ii., jip. 10-26. 
 
16 
 
 baffled explanation; and there is no lack of evidence to 
 believe that the superstitious belief in the duty of propitia- 
 ting an eponymous progenitor did exercise a very extensive 
 influence on the thoughts and actions of our Aryan 
 ancestors* At the same time it is almost equally certain 
 that M. de Coulanges has carried his theory much too far, 
 and that it in many points requires to be supplemented and 
 corrected by the simpler view of Aristotle and Maine. The 
 influence of religious feeling is too often pressed to account 
 for phenomena of -which other and more obvious explanations 
 may without difiiculty be found. Moreover — to adopt the 
 phrase used by Austin, in his celebrated analysis of the 
 theory of an Original Covenant — the explanation of M. de 
 Coulanges is in more than one particular " not only super- 
 fluous but inefficient." It is thrust in where it is not wanted, 
 to account for circumstances for which it could not in itself 
 afford a sufficient reason. Let us take for instance the 
 ancient prohibition of celibacy. "We know that voluntary- 
 celibacy among some nations, as in Sparta, involved ci\dl 
 degradation; and that in almost every ancient state it was 
 severely reprobated by public opinion.f M. de Coulanges 
 accounts for this by the necessity of maintaining the cultus 
 of the departed, of providing the dead ancestor with le repas 
 fionebre, and of maintaining a perpetual fire on the paternal 
 hearth.j It is obvious, however, that such a requirement 
 would not in a large family create a general obligation; if 
 the eldest son married, and had a family, all these objects 
 would be duly fulfilled, even should all his brothers remain 
 single. And yet there is not the slightest reason to suppose 
 
 * It is worth while to compare with the first and second books ot Za citi 
 Antique, pp. 1-134, and the chapter of Cox's history cited immediately above, 
 Sir H. Maine's observations on the paramount importance attached by the Hindu 
 law of succession to the due performance of the funeral obsequies. — Ancient Law 
 pp. 193, 194. 
 
 + Cf. Plutarch, Lycurgus: Apophth. Laced. Pollux, III., 48. Dion. Hal., IX., 
 22. yap apx^'tos avrCjp vofios yajxiiv t ?}vay«:a^£ tov^ tv I'lXtKia jcat tcl 
 yivvui^tva iiTTaifTa kirdvayKi?' rpkipuv. He is speaking of the alleged nearly 
 complete extirpation of the Fabian Gens, at the Cremera, B.C. 475. Similarly 
 Cicero, De Legihus, III., 3. 7, Censores. . . . caelibes esse prohibento. 
 
 X Book II., c. 3, p. 51. 
 
17 
 
 that marriage was more incumbent where there was only one 
 representative of the family than where there were several, 
 or on the eldest in a greater degree than on the youngest son. 
 There can be little doubt that in early times celibacy was 
 penalised — -just as at a later period, when morals had become 
 more corrupt, marriage was encouraged by enactments like 
 the ius trhi/m liberoi'um — solely or mainly for reasons of 
 State policy, and because it was considered advisable to 
 maintain and increase for military and social purposes the 
 number of legitimate citizens in each State. Other instances 
 might readily be found of deductions from this theory 
 equally plausible, and equally devoid of substantial warrant. 
 At the same time, what may be called the " religious" 
 theory undoubtedly constitutes one of the many valuable 
 contributions to our knowledge of the early history of 
 institutions, for which we have in recent years been indebted 
 to the patient application of the comparative method of 
 inquiry. It has been exaggerated and, in the hands of some 
 of its less careful exponents, almost caricatured; yet it 
 assuredly contains very much which is demonstrably true, 
 and of extreme importance. The earliest form of religious 
 rites evidently took the shape of a worship of the dead, 
 which their lineal descendants were bound to scrupulously 
 maintain, and which could not be offered without gross 
 impiety by any but the scions of the house. Hence, if not 
 entirely, at least in great measure arose the importance 
 universally attached to the preservation of the continuity 
 of the family, the violent prejudice entertained against the 
 alienation of its hereditary land, and the heavy penalties 
 with which Hindoo, Greek, and Roman law agreed in visit- 
 ing -the removal of ancient boundaries. Hence, too, may be 
 best explained the absence, in the earliest time, of all 
 conception of testamentary power, and the manner in which, 
 when the increasing value and quantity of other kinds of 
 property had engendered a liberty of bequest, permission to 
 dispose by will of the paternal estate was, as has been shewn 
 above, at first so rigorously refused. Hence, too, and hence 
 alone, we can understand the real meaning of those sacra 
 
 c 
 
18 
 
 which still form a material part of the succession to a 
 Hindu's estate, and which at Rome in time became so 
 burdensome that the juris-consult of the age of Cicero found 
 no more fertile field for his ingenuity than in devising 
 methods of conveyance which should separate them from 
 the' soil and elude their obligation. Many years before, a 
 parasite in one of the comedies of Plautus had found the 
 strongest expression of the value which he set on a patron's 
 hospitality, by exclaiming • that " at present prices, a dinner 
 is as good as an inheritance unencumbered by the sacra," * 
 and the point of the joke doubtless did not fail to be appre- 
 ciated by every citizen who owned a plot of land. . 
 
 The following considerations will, I think, justify the 
 apparent digression concerning the nature of the ancient 
 family on which I have ventured. When it is clearly seeii 
 that the continuity of the family and the maintenance of its 
 ancestral rites practically formed the basis of archaic society, 
 on which the whole superstructure was gradually raised, it 
 will become equally evident that this continuity, all import- 
 ant as it was, could not possibly have been maintained for 
 any length of time without a species of Primogeniture. We 
 have now, in fact, arrived at that germ of the modem 
 institution which I began by predicting that a careful 
 examination of the opinions and social organisation of our 
 ancestors would infallibly reveal. As long as the family 
 was an independent institution, and so long, after the State 
 had grown up around it, as it maintained its distinctive 
 character of an hn2Jeriwm in im,perio, it must have always 
 had a single head, who was at once its lawgiver and its 
 priest. He was also the sole administrator of the ancestral 
 land. His position, of course, was far removed from that of 
 a genuine owner ; it was rather that of a trustee, and the 
 cestui que trust, if we follow the view of M. de Coulanges, 
 was the eponymous progenitor, together with the descend- 
 ants yet to come. His character, in fact, was essentially 
 representative ; and he doubtless knew no indulgences and 
 opportunities for enjoyment denied to the other members of 
 
 * Cona hao anuonast sine saoris hcreditas. — Trimim. 2, 4, 83. 
 
10 
 
 the household. He administered a common fund for the 
 equal benefit of all. To strangers he alone was responsible 
 for the misdeeds of his kinsfolk ; and he had an exclusive 
 right to the emoluments they acquired. On the death of 
 such an one, who filled his place ? It obviously was unsus- 
 ceptible of joint occupancy, and must, we can scarcely doubt, 
 have devolved on the eldest son. In India, it was the eldest 
 son who performed the funeral obsequies of his sire, and 
 according to the law prevalent in some districts he received, 
 in the rare event of division, a double portion of the patri- 
 mony, probably in consideration of this solemn office. In 
 Greece, we know that each house and each clan had its 
 peculiar rites, which they met on appointed days to cele- 
 brate, and which manifestly presupposed the perpetual 
 existence of an individual representative of every family. 
 It is scarcely possible to imagine that the case was different 
 at Rome. We learn that in later days, when the paternal 
 domain was occasionally divided, the sacra were apportioned 
 also; we may hence conclude that up to a more or less 
 advanced period in Roman history they had been usually 
 transmitted intact. Moreover, when we consider how small 
 the value of such hereditary land must ordinarily have been 
 in proportion to the gains which a Roman patrician was 
 able to derive from conquest in Italy or abroad, or 
 from the exercise of professional pursuits, it does not 
 seem unreasonable to suggest that in many cases the 
 younger brothers preferred to leave their father's land 
 as well as his house in the hands of the eldest 
 son, rather than be burdened with their share of the 
 religious expenses it entailed. Such arrangements were 
 probably far from rare. The younger son in Greece or 
 Rome must have often migrated to a colony, or been 
 adopted by a childless parent, or married the only child of 
 another landholder, or received the share of land belonging 
 to an extinct family, or made his fortune in the forum or 
 the field. Although the fact that equal succession was in 
 both these countries the principle of the law may be i-e- 
 garded as incontestable, it by no means follows that the 
 
 C 2 
 
20 
 
 younger children always claimed their share in a " universal 
 succession " which must frequently have Vjeen embarrassing, 
 and sometimes, as long as there was no beneficiv/m in- 
 ventarii, the source of positive pecuniary loss. The most 
 ancient feeling on the subject of heritage seems to be indi- 
 cated by one of the older texts in the Laws of Manu, which 
 De Coulanges translates as follows : " L'£in^ prend possession 
 du patrimoine entier, et les autres frferes vivent sous son 
 autorit^ comme s'ils vivaient sous celle de leur pfere. Le 
 fils ain^ acquitte la dette envers les ancetres ; il doit done 
 tout avoir." * If we bear in mind the foregoing explanation 
 of the real character of the possession thus enjoyed by the 
 eldest brother, we shall have no difficulty in reconciling this 
 precept with the theoretical equality of all. The laws which 
 authorise a partition of the inheritance are said to be of 
 later date. Turning once more to Athenian law, we find an 
 incidental confirmation of the suggestion hazarded above — 
 that the paternal " demesne " was usually retained by the 
 eldest son — in an oration of Demosthenes. In the speech 
 on behalf of Phormio, it is stated that Apollodorus had 
 inherited his father's house by the privilege of the eldest 
 son ; " he got the lodging-house under the will by right of 
 Primogeniture," as Mr. Kennedy translates the passage.f 
 From the speech against Boeotus de nomine, we further learn 
 that the eldest son alone preserved the family patronymic. 
 A careful examination of the authorities on Attic law would 
 very probably supply evidence of other similar privileges. 
 The really important point lies in the circumstance that 
 while any proprietary advantages which may have once 
 existed have almost entirely disappeared from view under the 
 influence of ancient civilisation, the political or representative 
 importance of the eldest son seems to have diminished with 
 far less rapidity. In India, up to the present day, when 
 the afiairs of a village community are entrusted to the 
 management of a single head, he is usually, in theory at 
 least, the eldest son of the eldest line. Such was also very 
 
 * Laws of Manu, ix. 105-107, 126. CM Antique, p. <)2. 
 t TrpdTJitia XaPijiv rr/v avvoiiciav Karct ti)v diaBfjajV e'^Ei. Pro Phonu, § 43, 
 p. 955. 
 
21 
 
 frequently the case with the chieftain of a German tribe, or 
 Highland clan, and the tanaist of an Irish sept. In these latter 
 cases, however, headship was to some extent elective, seldom 
 travelling out of a single family, but often, for the better 
 security of the tribe in barbarous and warlike times, passing 
 over the infant son of the deceased chief in favour of his 
 younger brother, on the system which has been described as 
 " Keltic Primogeniture."* This was not indeed the only or 
 the most important alteration in the form of Primogeniture, 
 which the exigencies of uncivilised society produced. The 
 representative of the family tended more and more to become 
 the absolute owner of the property he protected. When the 
 family grew into a tribe or sept, a larger portion of its land 
 was gradually set apart as the private domain of its chief .f 
 Of the spoil of conquest, when it took the shape of an 
 increase in territory, he doubtless often secured for his 
 personal advantage the largest share ; it must frequently, 
 indeed, have happened that he was the only person capable 
 of employing it with profit. Since the publication of Ancient 
 Laiu, it has generally been agreed that it was under some 
 such circumstances as those indicated above, that the modern 
 system of Primogeniture arose. " Nothing in law," however, 
 as its author pointedly remarks, " springs entirely from a 
 sense of convenience." Had it not been for the important 
 representative prerogatives which archaic law and archaic 
 religion had always conferred on the eldest son, his proprie- 
 tary rights could scarcely have arisen during that period of 
 confusion which accompanied the gradual dissolution of the 
 Empire of the West. 
 
 Let me endeavour, before proceeding to the immediate 
 history of our own law of succession to real property, briefly 
 to sum up the most probable explanation of the circumstances 
 and ideas under the immediate influence of which the modern 
 system of Primogeniture arose. We first encounter it as the 
 customary method of devolution among those beneficiaries 
 who received grants of Roman provincial land on condition 
 
 * See Maine, Early Bistori/ of Institutions, pp. 200 — 202 ; Ancient Law, pp. 
 239—242. 
 ■j" Early History of Institutions, p, 204. 
 
9'? 
 
 of military service, from Karl the Great and other Frankish 
 chieftains* These estates were the cradle of Feudalism ; 
 they also became the cradle of Primogeniture in its modem 
 and Western form. Bestowed in the first instance for life, 
 or merely during the grantor's pleasure, their history presents 
 a very striking similarity to that of the Zemindaries under 
 Muhammadan rule, which I have already sketched. A 
 social state in Italy and other European countries, nearly 
 the same as that in India, produced approximately the same 
 results. The remoteness and feebleness of the central 
 Government had a twofold effect. As the Musalman 
 Governors gradually gave up their pretensions to appoint 
 a new holder to every vacant zemindary as practically 
 untenable, and contented themselves with a formal recogni- 
 tion of the representative of the deceased, so " the Benefice," 
 as Sir Henry Maine expresses it, "gradually transformed 
 itself into the hereditary Fief." Again, in either case, owing 
 to the fact that each Zemindar and each chieftain had to 
 look to himself alone for protection and defence, it was soon 
 found desirable to secure the stability of the estate by per- 
 petually vesting it in a single head. It would seem that 
 the thoughts of men in a troubled and lawless period almost 
 unconsciously reverted to a state of society which, as we 
 have seen, must have once existed in both East and West. 
 There had been a time when every family was a miniature 
 State. The paterfamilias at that period not only exercised 
 over his household the plenary authority of its political 
 head, and representative to the outer world, but was also 
 vested with full proprietary rights and their correlative 
 duties. On his death his position, as a rule, devolved on 
 the eldest male ascendant of the family, that is, in the usual 
 course of events, on his eldest son. At a later epoch, when 
 the family was absorbed in the State, and partitions of 
 inheritance were authorised by law, the eldest born still 
 maintained his quasi-political, and still more his religious, 
 but almost entirely lost his proprietary prerogative. But at 
 the time which we are now considering, when the State was 
 
 * Ancient Law, p. 229. 
 
23 
 
 practically disintegrated into its original elements, but the 
 original bonds of consanguinity had, with the disappearance 
 of the ancient religion, lost a great measure of their force, 
 the model which it seemed the most natural and convenient 
 to follow was that which the earlier state of social life sup- 
 plied. The main difference lay in the circumstance that 
 while, for the sake of internal security, and as a means of 
 protection against anarchy and violence, the proprietary 
 rights of the eldest son were again called into existence, his 
 correlative obligations were not equally revived. The law 
 which, at a somcAvhat later date, was called in to determine 
 his position, was the codified system of the latter days of 
 the Roman Empire ; and the application of its principles 
 always tended to establish the plenary ownership of the 
 holder of the fief. " The later Roman jurisprudence, 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 the legal proprietor of the inheritance 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 deter- 
 mine 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 im- 
 posed by the claims of the clansmen, and it was inevitable, 
 therefore, that it should convert the patrimony of many into 
 the estate of one." * 
 
 The narration of the circumstances under which the system 
 of military tenure gradually superseded the old domainial 
 form of property in Italy, and the ancient allod in Northern 
 Europe — the history of the era of conditional alienations on 
 the part of the larger, and more or less voluntary com- 
 
 * Maine, Ancient Lavi, pp. 238, 239. 
 
24 
 
 mendations on that of the smaller proprietors — would 
 scarcely be germane to our present subject. The gi'owth of 
 feudalism has been accounted for in many ways, and care- 
 fully discussed by many writers of ability On a subsequent 
 page I shall endeavour briefly to elucidate its connection 
 with Eoman law. The advantages of tenure by military 
 service to both lord and vassal must obviously, in troublous 
 times, have been sufficiently considerable to account in gi-eat 
 measure for its wide diffusion. It was an essential part of 
 this system that the estates which were subject to it should 
 be maintained at a considerable size, that each estate should 
 contain a single individual responsible for the services 
 attached to it, and that this individual should be of the male 
 sex. Both for the feudal lord and for the tenant himself* 
 partition was extremely dangerous and was everywhere 
 discouraged. Hence there is little reason to be surprised at 
 the rapidity with which the institution of Primogeniture, 
 exactly suited as it was to the circumstances of the time, 
 spread throughout Europe. After the Norman Conquest its 
 diffusion over our own country was scarcely less swift; and 
 it is here interesting to observe that one of the main reasons 
 for the exceptional stability with which it has maintained 
 its position in England lies in the fact of its having been 
 unaffected among ourselves by the dissolving influence of 
 that very legal system which had originally given it birth. 
 As Primogeniture in Europe flrst arose from the application of 
 the rules of Eoman jurisprudence to a certain form of owner- 
 ship, so one of its principal solvents on the Continent has been 
 the recent and general adoption of legal principles of another 
 kind, based on the Code NapoUon, and so ultimately on the 
 Civil Law. In England, Primogeniture owed its introduc- 
 tion to other causes than that of the influence of Eoman law, 
 and has remained unimpaired by any later application of the 
 Eoman rules of succession. 
 
 * " The security of a landed estate, the protection which its owner could 
 afford to those who dwelt on it, depended upon its greatness. To divide it was 
 to ruin it, and to expose every part to be oppressed and swallowed up by the 
 incursions of its neighbours." — Adam Smith, Wealth of Nations, p. 170; Ed., 
 McCulIoch. 
 
Section II. — Primogeniture and Feudalism in England. 
 
 I ALLUDED, at the close of the last section, to the influence 
 of Roman Law in determining the privileges and expanding 
 the rights of the eldest son under the feudal system of 
 tenure. It should also be observed that Roman Law — and 
 especially the law which prevailed in the western portion of 
 the Empire at the time of the invasion of the barbarians — 
 had no small share in producing the institution of feudalism 
 itseK One of the most characteristic features of that sys- 
 tem lies in the doctrine of a double property in land held 
 according to its rules, which it always involved. There 
 were the rights of the superior lord, and the rights of his 
 vassals ; these latter, in turn, as the practice of subinfeuda- 
 tion became more frequent, acquired tenants of their own, 
 often bound to render them service and fealty of a nature 
 precisely similar to those which they themselves yielded to 
 the grantor of the fief; and this is the form which, soon 
 after the compilation of Domesday Book, Feudalism very 
 generally assumed in England. The inferior, or paravail 
 tenants, held their lands from the barons, and the barons, 
 or mesne lords, were the grantees of the king. In any case, 
 however, the phenomenon of at least two sets of rights in 
 the soil necessarily presents itself in all benefices or fiefs ; 
 and the origin of such a conception must in all probability 
 be traced, not to the rude and simple Leges Barharorwm, 
 but to the institutions and laws of Rome. It has been sup- 
 posed by some writers that this " duplication of proprietary 
 right " was based on " the Roman distribution of rights over 
 property into Quiritarian, or legal, and Bonitarian, or 
 equitable."* There is much that is plausible in this opinion ; 
 and there is no doubt that the Roman element in Feudalism 
 has been disparaged or neglected by writers who attributed 
 too much to reasons of convenience which readily suggest 
 themselves in explanation of almost any historical phe- 
 nemenon, but which seldom account in a really satis- 
 factory or adequate manner for its having occurred to 
 
 * Ancient Laic, p. 295. 
 
the intelligence of those among whom it first arose.* At 
 the same time, the balance of probability disinclines us 
 to believe that the Roman distinction between legal and 
 equitable property — a .distinction belonging to a decidedly 
 advanced stage of juridical thought, and implying the regular 
 operation of courts of lawf — really actuated the substitution 
 by the barbarians of feudal for allodial tenures ; and this 
 impression is confirmed by the fact that there was another 
 form of ownership recognised by Roman law, and subsisting 
 in the districts where its influence was first experienced by 
 the barbarians, which it is much more natural to regard as 
 the model after which the benefices were shaped. Sir Henry 
 Maine has pointed out that while the latifvmdia of the 
 Roman patricians were almost invariably cultivated by slave 
 labour, large estates of the same kind when held, as was 
 often the case, by the Municipalities were frequently let to 
 free tenants. The Municipal corporations found the work 
 of superintending slave gangs an uncongenial and unprofit- 
 able occupation; for the rapidity with which their func- 
 tionaries were changed — only to be paralleled in modem 
 times by the revolutionary proceedings of M. de Fourtoii — 
 made all effective control over such establishments impos- 
 sible. The example of the Municipalities was eventually 
 followed by many individual proprietors ; and the equitable 
 right of the tenant in the soil, originally determined by his 
 contract with the proprietor, was ultimately recognised by 
 the Praetor under the Greek designation of Emphyteusis. 
 From the slave cultivators there arose in time the class of 
 coloni, "formed partly," as Sir Henry considers, "by the 
 elevation of the slaves, and partly by the degradation of the 
 
 * 'A somewhat different account of the origin of Feudalism is given by Pro- 
 fessor Stubbs (Constitutional History of England, Vol. I. pp. 251, 252, note) 
 as the result of "the recent investigations of German writers." He practically 
 adopts in its entirety the theory of Waitz. But with regard to the recent in- 
 vestigations of German writers it is well to bear in mind the caution suggested 
 by Sir Henry Maine : — " In later times a new source of error has been added 
 to those already existing, in that pride of nationality which has led German 
 writers to exaggerate the completeness of the social fabric which their fore- 
 fathers had built up, before their appearance in the lioman world," — Ancient 
 Law, p. 296. 
 
 + Ancient Law, p. 298. 
 
27 
 
 free farmers ;" just a.s he has in another work explained 
 how the status of the inferior tenants of a fief in many cases 
 formed a middle stage between the position of the free 
 "peasant proprietors" of the prpe-manorial village commu- 
 nity, and that which was held by the villeins of the lord. 
 The services of the coloni were of a base or predial character, 
 and from the coloni medietavii — that is, those who paid as 
 rent one-half of the produce of the land — arose the metayer 
 tenantry of modern Europe. The general analogy between 
 this system and the old English socage tenure is very obvious; 
 but it would doubtless be rash to assume that there was any 
 historical connection between them. Meanwhile, the 
 Emphyteuta attained a much more honourable and secure 
 position ; his subordinate ownership was fully recognised by 
 equity ; and he was protected from ejectment so long as his 
 quit-rent was regularly paid, and the other stipulations of 
 his original covenant with the superior owner duly observed. 
 It is here especially important to notice the still closer 
 similarity to the system of benefices which Emphyteusis, in 
 one of its branches, presented. The agri Ihnitrophi by which 
 the frontiers of the Empire on the Danube and the Ehine 
 were preserved from incursions of the barbarians, were held 
 of the State by veteran soldiers, often themselves of bar- 
 barous extraction, on terms similar to those enjoyed by the 
 ordinary Emphyteuta; but instead of a quit-rent being- 
 required, the services imposed on them were only occasional, 
 and exclusively military in their character. These grants of 
 land usually descended to the heirs of the grantee, and, in 
 the words of Sir Henry Maine, "it seems impossible to doubt 
 that this was the precedent copied by the barbarian 
 monarchs who founded feudalism."* 
 
 It may be regarded as certain that the feudal system was 
 as unknown in'the original abodes of the German conquerors 
 of the Empire, as it was in England itself before the Norman 
 invasion. The rapidity with which it spread in our own 
 country must be mainly ascribed to the circumstances 
 which, after the conquest, or, if the term be preferred, the 
 
 * The above sketch is epitomised from A ncient Lav), pp. 295 — 303. 
 
28 
 
 " acquisition" of England, led King William to parcel out so 
 large a portion of the kingdom between those who had 
 accompanied him in his expedition. As the nobility of the 
 Thegns had superseded the more ancient nobility of the 
 Eorls, so the Thegns themselves were in turn supplanted by 
 William's Barons. But the Companions of the King, among 
 the Norse folk, as in the polity of ancient Germany, and in 
 that of ancient Ireland, appear to have held a position very 
 inferior to that of the great allodial proprietors who remained 
 at home on their paternal lands. Their relation to the chief 
 they followed bore a close resemblance to that of the Roman 
 client to his patron ;* it is, perhaps, scarcely too much to 
 describe their status as quasi-servile ; and it is from this 
 circumstance alone that we are able fully to understand some 
 of the apparently degrading incidents of that " knight's 
 service," which the proud'est Norman Baron was bound to 
 render to his liege. 
 
 Some difficulty has occasionally been felt at the use of 
 two names — benefice and feud — for a system of tenure 
 apparently in either case identical. The explanation ap- 
 pears to be that the fief was chronologically the later of the 
 two ; that the feudal tenant succeeded the beneficiary, and 
 was endowed as a rule with ampler privileges. Sir Martin 
 Wright, indeed, in his learned Introduction to the Law of 
 Tenures, treats the words as synonymous, and quotes the 
 definition of a benefice given in the Book of Feuds, namely, 
 as a gift proceeding from the grantor's benevolence, of such 
 a nature, that while the usufruct was on certain conditions 
 assigned to the gi'antee, the property always remained with 
 the donor.f It is known, however, that such gifts were at 
 first precarious, being held originally at the will of the lord, 
 subsequently from year to year, and afterwards for the 
 tenant's life ;| while it appears from a " statement of 
 
 * See Maine, Ancient Law, pp. 229, 303 ; Early Histoty of Institutions, 
 pp. 145, 6 ; Freeman, Comparative Politics, p. 261. 
 
 + Quod ex benevolentia ita dabatur alicui ut proprietas rei penes dantem 
 remaneret, ususfructus ad accipientem eiusq : hfcredes pertinaret ad Hoc, Ut 
 llle et eius hajredes Domino fideliter servirent. Feud. Lib. 2 ; Tit. 23. 
 
 J Wright, Law of Tenures, p. 14. 
 
29 
 
 Muratori* that they sometimes held good only during the 
 life of the donor, in which case they retained the name of 
 benefices. Spelman in like manner afhrms that such gifts, 
 while dependent on the donor's pleasure, were known by the 
 name of onunera ; that when held for a fixed term, as for 
 life, they become beneficia; while they first received the 
 name of feuda when they began to be granted for what was 
 practically a perpetuity.*]* It may be taken as certain that 
 the latter was the name by which these military tenures 
 were ordinarily designated at the period when they were 
 first introduced into this country. 
 
 The etymology of feodwm has proved a fertile source of 
 speculation. It has even been derived from Emphyteusis, 
 while a Keltic origin, scarcely more plausible than the 
 Greek, has recently been suggested by a writer on ancient 
 Irish law, who connects the word with the well-known 
 fuidhir tenantry of the Irish chiefs. Wright, after Somner, 
 considers it a compound of " Feh, Feo,' or Feoh " with 
 " Hade, Head, or Hode, importing quality, kind, or nature," I 
 Feudum being therefore that which was held in Fee-hode. 
 The first part, at all events, of this etymology is almost 
 certainly correct. The Anglo-Saxon feoh, the old Norse /^, 
 the modern German vieh, and the Latin j^ecits, are all 
 obviously connected, and all originally denoted cattle. The 
 importance and value of homed herds in early times are 
 strikingly illustrated by the fact that, in several languages, 
 from these words derivations were formed signifying pro- 
 perty in general. Pecunia at once occurs to the mind ; the 
 modern Capital of political economy, and Chattel of the 
 common law, had in all probability no other origin ; while 
 Fee, so important a word in the history of tenures, would 
 seem to have been immediately formed from the old 
 Teutonic words mentioned above, and to have been itself 
 the parent of Feod or Feud. 
 
 * Antiquit. Ital. Med. Aev. dissert. 11. 
 
 t Posthumous Treatise of Feuds, 4, 6, 9. Similarly, Somner speaks of the 
 Benefice as " elder brother of the Feud ;" and afSrms that the latter word was 
 unknown till about 1000 a.d. — Treat, on Gavelkind, p. 112. 
 
 t Wright's Tenures, 4. Somner, Treatise of Gavelkind, 106-108 ; Spelman, 
 Glossary ad verb. Feodum. 
 
30 
 
 It has been much debated whether anything of the nature 
 of feuds was known to our forefathers, before the " acquisi- 
 tion" of England by William the Conqueror. Dalrymple, 
 in his essay on Feudal Property, endeavours to show that, 
 under the Saxon rule, while much of the land remained 
 allodial, a considerable proportion was held under conditions 
 which were practically those of military tenure; and he 
 adduces more than one weighty argument in support of his 
 opinion that the feudal system, though elaborated and 
 defined .by the Normans, existed in germ or outline under 
 the early English institutions.* The question is also dis- 
 cussed at length by Wright in the second chapter of his 
 work ; but the learned writer inclines to the belief that the 
 main incidents Of feudal tenure were unknown in this 
 country until after the compilation of the Domesday record ; 
 while Lord Coke maintains that tenure by knight's-sei-vice 
 existed, and even drew to itself the incidents of marriage, 
 wardship, and relief, as early as the time of Alfred. The 
 contrary opinion has been maintained by, among others, 
 Lord Hale, Somner, and Spelman ; and the establishment of 
 this view was indeed the main object with which the latter 
 composed the elaborate treatise on the nature and origin of 
 feuds, which was published after the writer's death by 
 Bishop Gibson, f 
 
 There can at least be little doubt that the tenure of land 
 in England previous to the conquest did not present any of 
 those characteristics which afterwards so closely connected 
 it with the law of Primogeniture. Our English forefathers 
 
 * So, also, on the whole, Professor Stubbs. " Domesday Book attests the 
 existence in the time of Edward the Confessor of a large class of freemen who, 
 by commendation, had placed themselves in the relation of dependence on a 
 superior lord ; whether any power of transferring their service still remained, 
 or whether the protection which the commended freeman received from his 
 lord extended so far as to give a feudal character to his tenure of lamd, cannot 
 be certainly determined ; but the very use of the term seems to imply that 
 vassalage had not in these cases attained its full growth ; the origin of the 
 relation was in the act of the dependent. On the other hand, the occupation 
 of the land of the greater owners by the tenants or dependents to whom it was 
 granted by the lord prevailed on principles little changed from primitive times 
 and incapable of much development." — Constitutional History, I., 188. 
 
 t See Wright, Tenures, p. 51. 
 
31 
 
 were of course in no way insensible to the value of landed 
 property; on the contrary, land, its produce, and the animals 
 and instruments necessary for its cultivation were almost the 
 only things of value with which they had much practical 
 acquaintance;* and "land alone," in the words of a recent 
 writer, " was recognised as the vehicle of all personal 
 privilege and the basis of civil rank."-|- While the posses- 
 sion of land constituted the sole badge of freedom, and the 
 one recognised claim to political representation, the "insolent 
 prerogative" of the eldest son could scarcely be expected to 
 exist. In point of fact, the early English law of inheritance 
 shows considerable trace of the influence of the Roman law 
 of succession, and in the event of intestacy the property of 
 the deceased was divided among his childi'en, or at all events, 
 among his sons, in equal portions. The custom of Gavelkind, 
 so soon to be circumscribed within narroAV temtorial limits, 
 at one time prevailed over the whole kingdom. More- 
 over the right of testamentary disposition, incompatible with 
 the duty of a feudal tenant either to his lord or to his 
 ofi'spring, was fully recognised before the feudal era, the will 
 employed being usually, as it would seem, of a nuncupa- 
 tive character; at the same time, there is no reason to 
 suppose that this power was frequently exercised for the 
 purpose of disinheriting the issue of the testator. Alienation 
 inter vivos was of course equaliy permitted; and as lands 
 were attachable to answer for their owner's debts, must 
 sometimes have been of an involuntary kind. The restric- 
 
 * Sir James Stephen, in his General View of the Criminal Law, gives some 
 striking instances of the insignificance, hoth in amount and value, of the 
 "personal" property possessed by an English yoeman in early times. "In the 
 29th Edward I., a return was made of the personal property in Colchester and 
 four adjacent townships, for the purpose of assessing a fifteenth; and it enu- 
 merates every article belonging to every person assessed, and almost all fall 
 under one or other of these classes [cattle, agricultural produce, and household 
 furniture]. . . . The amount of coined money is very small, especially 
 when it is remembered that, as there were no banks, the money actually in a 
 man's purse was aU the money he had. The largest sums of ready money that 
 I have noticed are 30s. in one case and 10s. in another — equivalent in purchas- 
 ing power to £37 10s. and £12 10s. respectively." — Pp. 49-50. 
 
 'r Systems of Land Tenure in Various Countries, p. 130; Mr. Wren Hoskyns, 
 M.P. 
 
32 
 
 tions on alienation which hampered the owner of a fief, 
 whose interest was in fact a simple usufruct, must be 
 afterwards considered; for the present it is sufficient to 
 observe that they were unknown before the conquest. The 
 Anglo-Saxon charters contained a full description of all 
 landed property; and what were practically registers of 
 deeds of transfer and assurance were carefully preserved. 
 It is to the accuracy with which this duty was performed by 
 his English predecessors that the facility and rapidity with 
 which William procured the information contained in 
 Domesday Book has been with much probability ascribed. 
 It is also to be noticed that these registers, like the later 
 record, had a public and military purpose. The most 
 important branch of the Trinoda Necessitas was the military 
 service to which every Thegn was bound, and which 
 Professor Stubbs considers may probably be traced from the 
 legislation of JSlfred.* Spelman regards this obligation as 
 of a very systematic character, and as having extended over 
 the whole kingdom; and he attributes to Alfred the division 
 of the country into tribes, with a view to the due apportion- 
 ment of such services."!" The exact relation between military 
 duty and the tenure of property in the ante-Norman period 
 is sketched by Mr. Stubbs, in a lucid and comprehensive 
 manner, in a passage which I venture to transcribe : — 
 
 " In the obligation of military service may be found a 
 second strong impulse towards a national feudalism. The 
 host was originally the people in arms ; the whole free 
 population, whether landowners or dependents, their sons, 
 servants, and tenants. Military service was a personal 
 obligation ; military organisation depended largely on tribal 
 and family relations ; in the process of conquest, land was 
 the reward of service ; the service was the obligation of 
 freedom, of which the land was the outward and visible 
 sign. But very early, as soon perhaps as the idea of separate 
 property in land was developed, the military service became 
 not indeed a burden upon the land, but a personal duty that 
 practically depended on the tenure of land ; it may be that 
 
 * Constitutional History, Vol. I., p. 191, cf., pp., 192-194. 
 i- See Wright, Tenures, p 7C. 
 
33 
 
 every hide had to maintain its warrior ; it is certain that 
 every owner of land was obliged to the fyrd or expeditio ; 
 the owner of bockland as liable to the trinoda necessitas 
 alone ; the occupier of folkland as subject to that as well 
 as to many other obligations from which bockland was 
 exempted."* 
 
 The existence of such a system must have gone far to 
 prepare the minds of the people for the changes which 
 William introduced. In fact, as is remarked by an author 
 with whom law students of the present day are abundantly 
 familiar, "before the conquest, landowners were subject to 
 military duties; and to a soldier it would matter little 
 whether he fought by reason of tenure or for any other 
 reason. The distinction between his services being annexed 
 to his land, and their being annexed to the temore of his 
 land, would not strike him as very important."f 
 
 The general supercession of allodial by feudal tenures in 
 England has been usually dated from the compilation of 
 Domesday Book, J twenty years after the battle of Hastings, 
 or Senlac ; but the exact causes which led to the production 
 of that work must remain uncertain. According to Black- 
 stone, who bases his view on the Saxon Chronicle, the 
 ancient military constitution of iElfred having fallen into 
 desuetude, the kingdom was inadequately protected against 
 
 * Constitutional History, Vol. I., pp. 189, 190. 
 
 + Joshua Williams, Law of Real Property, Twelfth Edition, p. 4. 
 
 J Professor Stubbs, however, considers that the feudal system, and the rela- 
 tion of lord and vassal which it involved, were generally in force before the 
 Domesday Survey. With regard to the celebrated oath exacted at Salisbury, 
 he observes : — " In this act has been seen the formal acceptance and date of 
 the introduction of feudahsm, but it has a very different meaning. The oath 
 described is the oath of allegiance, combined with the act of homage, and 
 obtained from all landowners, whoever their feudal lord might be. It is a 
 measure of precaution taken against the disintegrating power of feudalism, 
 providing a du-ect tie between the sovereign and all freeholders, which no inferior 
 relation existing between them and the mesne lords, would justify them in 
 breaking . . . The real importance of the passage as bearing on the date of the 
 introduction of feudal tenure, is merely that it shews the system to have already 
 become consolidated ; all the landowners of the kingdom had already become, 
 somehow or other, vassals, either of the king, or of some tenant under him. 
 The lesson may be learned from the fact of the Domesday survey." — Consti- 
 tutional Hist. vol. i. pp. 266, 267. 
 
 D 
 
34 
 
 foreign foes. An invasion was threatened by Denmark; 
 and the King was compelled to summon to his aid a force of 
 Normans from his Dukedom. In order to place the country 
 in a posture of defence, and obviate the necessity of seeking 
 in the future for extraneous aid, a Council was held, which 
 resulted in the issue of the order for that historic survey.* 
 It was completed without delay ; the King convoked the 
 principal landowners at Salisbury, received their homage 
 and fealty, and distributed the land among them by a 
 military and feudal tenure. It is uncertain how much of 
 the^land so divided was apportioned to Norman Barons, and 
 how much still remained in the hands of English Thegns ; 
 to what extent, in fact, the distribution of Salisbury bore 
 the aspect of a compulsory commendation of subjects 
 hitherto more or less independent, or of a new grant to de- 
 serving beneficiaries. It is to be observed, however, that 
 the amount of land in the hands of the King, and susceptible 
 of fresh distribution, must during the previous twenty years 
 have been constantly increasing. Those who had fought for 
 Harold had forfeited their titles ; there had been rebellions in 
 the following years ; Kent had revolted against the tyranny 
 of Odo, and the Welsh princes had vainly endeavoured to 
 break the Norman yoke ; the House of Godwin had thrown 
 off" their allegiance, and been crushed, in 1068 ; Mercia and 
 Northumbria had next taken up arms in a fruitless struggle ; 
 the fight for independence in which Eadwine and Morkeire 
 fell had in 1071 reduced the Midland to submission; and 
 the resistance of Hereward in the fens has acquired a 
 romantic as well as an historical interest. Hence, in the 
 words of our latest and, in some respects, ablest historian, 
 " the desperate and universal resistance of his English sub- 
 jects forced William to hold by the sword what the sword 
 had won, and an army strong enough to ci'ush at any 
 moment a national revolt was necessary for the preservation 
 of his throne. Such an army could only be maintained by 
 a vast confiscation of the soil. The failure of the English 
 risings cleared the way for its establishment; the greater 
 
 * Blackstone, 2 Comm. p. 4S. 
 
part of the high nobility had fallen in battle, or lied into 
 exile, while the lower thegnhood had either forfeited the 
 whole of their lands, or redeemed a portion of them by the 
 surrender of the rest. We see the completeness of the con- 
 fiscation in the vast estates which William was enabled to 
 grant to his more powerful followers." * 
 
 From the point of view of the historian of the law of real 
 property, one of the most important results of the new Con- 
 stitution lay in the theory to which it gave birth, that all 
 land in the kingdom, whatsoever its tenure, was held, 
 mediately or immediately, of the king himself. As the 
 sovereign is affirmed by the lawyers to be the fountain of 
 all grace, so at the time of Domesday arose the doctrine that 
 the Sovereign was lord paramount of the entire soil. A 
 considerable proportion of the land was held by his tenants 
 in capite, of whom there were fifteen hundred at the time 
 of Domesday ; and the obligations of service, homage and 
 fealty, which the King imposed on his immediate vassals, 
 were exacted by them as mesne lords with equal rigour from 
 the paravail tenantry. As a general principle, it may be 
 assumed that all lands granted by Wilham on conditions of 
 "frank-tenement" or free-service descended, on due perform- 
 ance of the original covenants, to the heirs of the grantee ;■!- 
 while those held by knight' s-service descended exclusively 
 to the eldest son. We know that this latter was not 
 originally the case with socage lands, though socage was 
 also a free tenure. The tenant in socage was allowed to 
 alien by deed of feofiment at an early age ; his land did not 
 escheat in the event of attainder;! he was permitted a 
 customary right of testamentary disposition ; and on intes- 
 tacy his estate, up to the reign of Henry II., when the 
 devolution of socage land was assimilated, except in Kent, 
 
 * Green, Short History of the English People, p. 80. 
 
 t The hereditary character of benefices had been recognised by Charles the 
 Bald, as early as 877 A.D.; and Professor Stubbs speaks of this as "rather a 
 recognition of a presumptive right, than an authoritative enunciation of a 
 principle." He regards it as "a clear proof of the -generality of the usage." — 
 Constitutional History, Vol. I., p. 254, note, 
 
 J Blackstone quotes the maxim, " The father to the bough, the son to the 
 plough," referring, of course, to the accepted derivation of the word. 
 
 d2 
 
3r. 
 
 to that of estates held by military tenure, was equally 
 divided among all the sons.* It has, indeed, been contended 
 by some writers that fees held by knight's-service were not 
 originally feioda individna, or indivisible, and that in the 
 case of these lands also the law of Primogeniture was of 
 somewhat later growth. The point is principally of anti- 
 quarian importance ; but the probabilities of the matter are 
 all the other way. Hale and Somner, for instance, point to 
 the Constitution of the Emperor Frederick Barbarossa, 
 establishing that principle of descent, seventy years subse- 
 quent to the date of Domesday ; and they seem to think 
 that it was only at that time that Primogeniture became 
 general in our own country. But it is quite clear that any 
 Constitution of Frederick could in England have had no 
 other influence than that of a model ; and it has been 
 already shewn that a similar model was to be found in the 
 customs which prevailed among the holders of benefices at a 
 period considerably anterior to the Conquest. The esta- 
 blishment of honorary feuds, or feuds to which a title of 
 nobility was attached, and which were necessarily unsus- 
 ceptible of division, must doubtless have greatly contributed 
 to the rapid spread of Primogeniture. In fact, if we examine 
 with any care what we know to have been from the earliest 
 time the characteristic incidents of knight's-service, we shall 
 be led irresistibly to conclude, with both Wright and Black- 
 stone, that they necessarily involved the descent of, at aU 
 events, the " capital fee " to the eldest son alone. To that 
 examination I now proceed; after which it wiU be most 
 convenient to consider the restraints on alienation, both 
 during life and by wiU, which at first existed, and the 
 manner in which, chiefly at the instance of the vassal, partly 
 at that of the lord, in part, also, for the protection of the 
 
 * Cum quis HsGreditatem habens moriatur, siplures reliquerit filios, dis- 
 tinguitur utrum ille fuerit Miles, sive per feodum militare tenens, aut Liber 
 Sokemannua ; Quia si milea fuerit, vel per militiam tenens, tunc secundum ius 
 Regni Angliffi primogenitus Alius patri succedit in totum, Ita quod nullus 
 fratrum suorum partem inde de iure petere potest. Si vero fuerit Liber 
 Sokemannua, tunc quidem dividetur hasreditas inter omnes filios quotquot 
 aunt per partes a;quales, si fuerit Socagium et id antiquitus divisum.— Glanvil, 
 Lib. 7, cap. 3, p. 4fl, n. 
 
37 
 
 creditors of the former, they were successively removed, 
 until at length Primogeniture has become nothing more 
 than a custom, and a custom which any owner of a freehold 
 estate in possession, in fee simple, or in tail, who will take 
 the trouble to make a will or execute a deed, is able to 
 surmount. 
 
 Among the aids which were required from the feudal 
 tenant, the most important and regular consisted of a con- 
 tribution to the expenses incurred by his lord in making his 
 eldest son a knight, and providing a marriage portion for his 
 eldest daughter. It was in the interest as well of the king 
 as lord paramount, as of the mesne lord that the former pro- 
 vision was established, in order that there might be no lack 
 of duly qualified persons for the defence of the State, as well 
 from internal disorder as from foreign foes. The obligation, 
 however, was confined to the knighthood of the eldest son ; 
 and this might be regarded as in itself almost a sufiicient 
 proof that the latter alone succeeded to the tenure of the 
 fief. In order that he might efficiently perform the duties 
 attached to it, it was obviously necessary that he should 
 receive an unincumbered inheritance ; no portion for his 
 sister was allowed to be charged upon the land ; and his 
 father, while tenant for life, possessing an income which was 
 little more than sufficient for his ordinary expenditure, and 
 which the nature of the life he led and the habits of his 
 order precluded him from increasing, could seldom possess 
 any funds applicable for that purpose. The inferior tenant, 
 therefore, like the'fRoman client, was expected to tender his 
 contribution ; but there is no reason to imagine that the sum 
 thus levied on each was in ordinary cases considerable, or 
 oppressively burdensome. The scantiness of the portions of 
 the daughters of landed proprietors, which is so often in the 
 present day made the subject of adverse comment, must 
 have been still more characteristic of early times ; and the 
 disproportion of the daughter's dowry to the property of the 
 son afforded much less substantial reason for complaint as 
 long as every knight was practically obliged to select his 
 wife from the same class. Further aids, less justifiable in 
 
38 
 
 their object, were subsequently exacted, until the abuses 
 which thence ai-ose were partially redressed by King John's 
 charter, and the confirmatio chartarum of Edward I.* The 
 amount payable on the knighthood of the son, or the marriage 
 of the daughter, was fixed at twenty shillings by the Statute 
 of Westminster the First.f 
 
 The relief paid on entering upon the estate by the heir of 
 a deceased tenant, was at first entirely arbitrary ; so that an 
 exorbitant relief was really tantamount to disinherison. | 
 Such a state of things could not long be tolerated, and the 
 moderate composition fixed by William I., though not re- 
 spected by his immediate successor, was restored by the 
 charter of the first Henry. If the heir of a knight's fee, on 
 his father's decease, had attained his majority, he succeeded 
 at once to the estate on payment of a relief of 100s. Frima 
 seisina — the right of the superior lord to a year's profits of 
 the land — was confined to the king's tenants in capite, and 
 originated in the theoretical right of the lord to enter and 
 take seisin of the lands of his deceased vassal, in order to 
 protect the estate until the heir claimed and received in- 
 vestiture.§ 
 
 The right of wardship was no doubt based on the sup- 
 position that' the heir, until he attained his majority, was 
 incapable of performing the services of a knight, and strik- 
 ingly illustrates the close connection which was held to 
 subsist between the enjoyment of the profits of an estate, 
 and the due performance of the conditions on which it was 
 held. Indeed, if a youthful heir were made a knight during 
 his father's lifetime, wardship did not arise ; and as this 
 could ordinarily be done when the heir had attained the 
 age of fifteen, the remedy for the incidental grievances 
 of wardship — of which we meet with so many instances 
 in the proceedings of the Court of Wards under the 
 Tudor and early Stuari kingSi — must frequently have resided 
 in the tenant's hands. 
 
 The right of maritagium exercised by the superior lord 
 
 * St. 25 Edw. I,, 0. 5, 6. + St. 3 Edw. I., u. 36. 
 
 J 2 Blaokst. Com,, pp, 65, aeq. § 2 Blackst.- Com,, p, 66. 
 
39 
 
 over his infant ■wards "vvas doubtless the most oppressive 
 incident of that condition, and the one which, in the case of 
 nrhoLe wards, it is most difficult to justify. So far from being 
 simply employed in order to secure a trustworthy tenant or 
 a suitable alliance, it was doubtless perverted and abused 
 until it became an instrument of gross extortion. The right, 
 however, was expressly recognised by the Statute of 
 Merton ;* and only a tardy and unsatisfactory remedy was 
 found in the invention of the doctrine of Uses, and the 
 partial exemption subsequently conceded by the well-known 
 Statute of Wills of Henry VIII. 
 
 Of all the incidents of knight's service, that which most 
 closely connected it with the rule of Primogeniture, consisted 
 in the fines which were levied on alienation of the land. 
 Neither lord nor vassal could in early times break the 
 feudal bond which subsisted between them, except by mutual 
 consent. Considering the intimate character of the relation, 
 and the almost domestic nature of some of the services 
 which the tenant had agreed to render, it was thought un- 
 reasonable that he should be compelled to perform them to 
 a stranger ;■[- and accordingly a new lord could not enter 
 upon his predecessor's rights except on the voluntary attorn- 
 ment of the vassals. This restraint, however, did not long 
 maintain its early rigidity ; and the holder of a seignory 
 or a reversion was permitted to convey his privileges by 
 levying a fine, without the tenant's concurrence ; while, as 
 the result of this judicial process, attornment could be com- 
 pelled, until a statute of Anne rendered it no longer neces- 
 sary, j The tenant's liberty of alienating seems to have been 
 of slower growth ; the fine demanded on such an event did 
 not, like the relief exacted from his heir, almost immediately 
 become a moderate composition of fixed amount, but seems 
 to have entiiely depended on the pleasure of the lord. Even 
 after the passing of quia eTnptores, the king's tenants in 
 capita were unable to alien without a licence, the price of 
 
 * St. 20 Hen. III., e. 6. 
 
 t Wright, Tenures, pp. 30, 31. 
 
 J St. 4 & 5 Anne, c. 16, rf. 9. See Williams, Real Property, pp. 237, 238, 310. 
 
40 
 
 which was fixed by a subsequent statute at a third of the 
 annual value of the estate.* 
 
 Owing to this incident of tenure, the real or supposed 
 interest of the lord tended gi-eatly to secure the succession 
 of the heir, and maintain the custom of Primogeniture. 
 Before tracing the steps by which the right of alienation 
 against both lord and heir was gradually acquired, it should 
 be remarked that the last incident of tenure by knight's 
 service — that of escheat — also contributed to the same end. 
 The lord's reversionary interest must have increased his 
 jealousy of any proceedings of the tenant, such as clandestine 
 alienation or division, which might diminish the chance of 
 its accruing, and enhanced the natural desire of the tenant 
 to procure for himself a duly qualified heir, according to the 
 conditions of his tenure. 
 
 The keen objection to alienation by his tenant which the 
 feudal lord experienced, was a natural consequence of the 
 feudal system, and particularly of that form of it which was 
 introduced into England by the policy of the Conqueror. 
 The mesne lord, including the tenant in capite, was himself 
 held to a strict performance of services by his superior ; and 
 his capacity for rendering them was liable to be seriously 
 endangered by an excessive multiplication of the number of 
 his tenants. Thus a feeling similar to that which tended to 
 keep estates in the hands of the same family prescribed 
 their unincumbered devolution to a single heir. The land 
 began to be regarded less as a means of subsistence than as 
 a security for defence ; and if a tenant were permitted to 
 divide his estate among his creditors or his kin, its efliciency 
 in this respect was seriously diminished. The holder of a 
 knight's fee was bound to serve his sovereign for forty days 
 in the year', and to furnish his equipment at his own 
 expense ; but those who held only a portion of a fee were 
 only required to serve for a proportionate time. "Hence 
 the splitting of feuds had the effect of inconveniently in- 
 creasing the number of the forces at the commencement of 
 a campaign, and of so limiting the duration of their service, 
 
 * St. 1 Edw. III., 0. 12. 
 
41 
 
 that they became useless for anything, unless it might be 
 attempted by a coup de main. The quality of the feudal 
 militia was also much deteriorated by the subdivision of 
 fiefs ; the holders of small portions not being able to furnish 
 a completely equipped horseman even for the shortest 
 period."* 
 
 The utility of the system of Primogeniture from a military 
 and defensive point of view is indeed extremely obvious, 
 and would probably in itself sufficiently account for the 
 stability which it acquired among English institutions. It 
 would seem, however, that it really could claim to possess 
 other advantages, considered as a means of agricultural and 
 economical improvement, which have been very generally 
 neglected or ignored. There can be no doubt that previous 
 to the supercession of the old allodial system and the 
 custom of gavelkind by feudal tenures and the rule of 
 Primogeniture, there existed in this country large tracts of 
 waste or unfilled land which only needed reclamation, and 
 enormous forests which urgently required a vigorous ap- 
 plication of the axe. But the oi-ganisation of society under 
 our English forefathers was such as to render any general 
 scheme for the extension of the area of cultivated and pro- 
 ductive land almost entirely impracticable. The manor, 
 when the feudal system was introduced, was in most cases 
 superimposed on a prse-manorial village community ; and 
 when society is grouped in village communities, agricultural 
 progress is difficult in the extreme. Custom presses on the 
 co-proprietors with obligatory force ; obsolete methods of 
 cultivation are adhered to with strange tenacity ; individual 
 enterprise is discouraged by a system in which all alike 
 participate in the fruits of the superior industry or 
 sagacity of a single member of the group ; and any- 
 thing resembling capital is of course entirely unknown. 
 When land is held in this manner, any great change 
 in the manner of employing it can seldom be im- 
 mediately profitable to its proprietors ; even if it is, it is 
 very difficult to prove its lucrative character to those 
 
 * Ljttelton, Henry II,, vol. iii. 83-92 ; quoted by McCuUoch, p. 25. 
 
42 
 
 with whom its adoption rests ; and even if the advantage 
 of such alteration can be demonstrated to the satisfaction 
 of the most ignorant and prejudiced — who will probably 
 possess a right of vetoing any change which their 
 more intelligent neighbours may advocate — it by no means 
 follows that they will be able to free themselves from the 
 immaterial fetters which have been riveted by uninter- 
 rupted usage, and proceed to carry it into effect. The 
 hopelessness of expecting any advanced agricultural science 
 under such conditions may be illustrated by the working of 
 the Russian Mir, or village community, of the present day. 
 In the Mir the lands are periodically redistributed among 
 ■ the peasant owners. The cultivation is of .the most rude 
 and primitive kind; and unless the conditions are greatly 
 changed, it seems likely to defy all efforts at improvement.* 
 The comparative poverty and unproductiveness of land in 
 Russia is probably to be attributed almost as much to these 
 circumstances as to any obstacles which barrenness of soil 
 or inclemency of climate may engender ; and the disastrous 
 effect of every system of joint-ownership with which we are 
 acquainted on the individual entei'prise and economical pro- 
 gress' of the proprietors, seems in itself to supply a weighty 
 argument against many of the communistic theories of 
 modern times. For the early rescue of England from an 
 equally wretched economical condition, we are probably in 
 great measure indebted to the feudal system. The feudal 
 lord was hampered by no effete agricultural customs; he 
 was able to make the most of his estate according to the 
 best advice procurable at the time ; he commanded sufficient 
 labour to reclaim, by the aid of his villeins, the waste land, 
 which was always under his immediate control ; and, most 
 important of all, he was often in a position to sacrifice 
 immediate returns for an assured advantage in the future, 
 of which he knew that his heir, at all events, would reap 
 the benefit. The same results appear to have at one time 
 
 * See Mr. Wallace's valuable paper on the Russian Mir, in Maanillan's 
 Magazine, June, 1876 ; and the chapters in which he more fully explains the 
 system of land-tenure in his work on Russia. Compare also Systems of Land- 
 Tenure, pp. 404, 405. 
 
43 
 
 followed from the tenure of large tracts of land by the 
 Zemindars in Orissa and Bengal,* with whom, as has 
 already been noticed, alone among Indian proprietors, 
 descent according to the rule of Primogeniture prevailed. 
 
 And yet in England many of the inferior tenants must 
 have retained a traditional recollection of the period before 
 the Conquest, when they were free to alienate their lands, 
 and dispose of them as they thought best, with no other 
 restraints than those imposed by prudence and family 
 affection. When the personal attendance of the feudal 
 tenants began to be commuted into escuage or scutage 
 money — first taken, according to Blackstone, on the occa- 
 sion of Henry II.'s expedition to Toulouse — all the advan- 
 tages of that system of tenure seemed to many to be lost, 
 and nothing but the oppressive nature of its incidents to 
 remain. Before this, however, the tenant of a freehold 
 estate of inheritance had made some progress towards, 
 acquiring the right to dispose of it during his life ; and, as 
 far as it is possible to judge, from the earliest introduction 
 of the feudal system into England the grant of an estate for 
 the tenant's own life alone was the exception rather than 
 the rule. At first, however, a gift to a man and his heirs 
 was construed to exclude all but lineal descendants, so that 
 it had the same effect as that subsequently produced by the 
 addition of the words, " of his body," to the deed of feoff- 
 ment ; and this construction was only obviated by the gift 
 of estates to be held on the theory of feudum novum ut 
 antiqumn. Thus collateral heii-s were at first admitted by 
 a legal fiction ; hence, too, arose the anomalous rule by which 
 a father was, until less than half a century ago, in all cases 
 excluded from inheriting his son's estate ; and on this prin- 
 ciple the whole tenure of fee-simple estates, and the method 
 of their devolution on intestacy depended, until at the date 
 referred to important changes were introduced into the law 
 of inheritance.-f 
 
 While the right to alienate, in the strict sense of the word, 
 
 * Maine, Villar/e Communities, p. 163. The foregoing paragraph, was in 
 part suggested by pp. ,160-165 of the same work, 
 t St. 3 & 4 Wm. IV., c. 106. 
 
was only very gradually acquired, after a severe and pro- 
 tracted struggle, that of subinfeudation seems to have been 
 recognised in the earliest period of feudal tenures as an 
 integral part of the feudal system. The tenant was not 
 allowed to transfer the land together with its incidental 
 services; but he was permitted -to "sub-let" it on such 
 terms, that he himself received from the paravail occupant 
 services sufficient to enable him to himself perform those 
 due to the superior lord.* The mischiefs, however, involved 
 in the subdivision of iiefs, which formed the main justifica- 
 tion of the rule of Primogeniture, and of the restraints by 
 which direct alienation was checked, were scarcely less 
 palpable when the occupancy of the soil was transferred 
 by this process. We find, accordingly, that the Crown 
 tenants in capite were not permitted to employ it ; while, 
 with regard to others, considerable restrictions were imposed 
 both on the purposes for which it might be resorted to, and 
 the quantity and nature of the land which might be thus 
 conveyed. It appears from the law of Henry I., which 
 has been already cited, that subinfeudation of hereditary 
 " Bocland " was prohibited ; and Glanvil, writing about a 
 generation later, after mentioning the special objects for 
 which subinfeudation was favoured by the law, adds that 
 only " a reasonable part " of the estate might be diverted in 
 that manner.-f- So vague a rule can have afforded but scanty 
 protection to the feudal lord. The tenant often failed to 
 render his services satisfactorily, owing to the default of 
 
 * Though Subinfeudation (by which a new inferior Feud was carved out of 
 the old, the old one still subsisting) was allowed by the Feudal Law, yet 
 Alienation (by which the original Feud itself was transferred, and a new 
 
 Feudatory substituted in the place of the old) was not It is clear that 
 
 Subinfeudations were warranted by the Feudal Law, and that they were an 
 original and necessary branch of the feudal policy itself. — Wright, Tenures, 
 pp. 156, note a; 159, note ?i. 
 
 + Licet autem ita generaUter cuilibet de terra sua rationabilem partem pro 
 sua voluntate ouicunque voluerit libere in vita sua donare, — Liv. 7, c. 1. He 
 is speaking, it should be noticed, of Subinfeudation, not Alienation, the word 
 dono being used, which always before quia emptores created a tenure between 
 
 feoffor and feoffee Tenentur a\item Hasredes Donatoruni Donationes 
 
 et res Donaias, sicut rationahilita' facta) sunt, illis quibus facta! sunt et 
 ha3redibus suis Warrantizare. — Ihld, c. 2. It need scarcely be observed that 
 Glanvil here clearly uses the reflexive suis incorrectly for eorum. 
 
45 
 
 those to whom he had transferred a portion of his interest ; 
 while the other incidents of his tenure, in their nature 
 scarcely susceptible of transfer or apportionment — the rights 
 of wardship, marriage, and escheat — were sometimes entirely 
 lost to the superior. It is therefore not surprising that the 
 barons made vigorous and persistent efforts to check a prac- 
 tice so disadvantageous to themselves ; it was not, however, 
 prohibited by Magna Charta; but on the revision and 
 renewed promulgation of the Charter, at the instance of 
 Langton and the barons, a provision was inserted forbidding 
 any tenant to dispose of his land by subinfeudation, without 
 reserving a portion sufE.cient in itself to answer the require- 
 ments of his lord.* Even this restriction, however, in the 
 end proved insufficient; and at length the power of sub- 
 infeudation was entirely and finally abolished by the famous 
 statute of Edward I., of which the preamble begins with 
 the words quia einptorea terrarum, and which accordingly 
 is usually cited under the title of Quia eviptores.f By this 
 statute, every tenant of an estate in fee simple — with the 
 exception of the king's tenants in capite, who did not 
 acquire equal liberty until the reign of Edward 111.^ — 
 acquired full power to alienate his estate during his lifetime 
 (the right of testamentary disposition was not conceded until 
 late in the reign of Henry VIII., and then only to the extent 
 of two-thirds of the land, in cases where it was held by 
 knight's-service§), on condition, however, that the alienee 
 should hold not of the previous tenant, but of the original 
 grantor or his representative, and on such conditions and 
 subject to such services as had formerly been attached to 
 the occupancy of the estate. 
 
 It will appear from the foregoing summary that the rights 
 of the heir must have been to a great extent preserved by 
 the restrictions on subinfeudation successively imposed in 
 
 * NuUus Liber Homo det de csstero amplius alioui quam ut de residua terrai 
 possit sufficienter fieri Domino Feodi servitium ei debitum. — Cap. 32. See 
 Wright, Tenures, pp. 157, 168; 2 Blaokst. Comm., pp. 90, 91. 
 
 t St. 18 Edw. I., c. 1. 
 
 J St. 1 Edw. III., c. 12. Compare Wright, Tenures, pp. 1G2-167. 
 
46 
 
 the interest of the superior lord. It is remarkable, however 
 that it was precisely in those cases in which the heir was 
 most likely to be injured by the practice, that subinfeuda- 
 tion was especially favoured by early feudal law. As a rule 
 he was not likely to suffer any graver injury from the process 
 than is experienced in modern times by an expectant tenant 
 in tail from leases granted or conveyances effected by a life 
 tenant in possession under the settled estates Act. It is not 
 to be supposed that the feudal tenant was habitually gene- 
 rous for nothing, or that he underlet his land without a fair 
 equivalent ; and at a time when ready money was extremely 
 rare, and there were no merchant princes eager to acquire the 
 ancestral acres of impoverished men of birth, absolute sales 
 for ready money paid down, or even anything of the nature 
 of modern mortgages, must have been of extremely rare 
 occurrence. Thus subinfeudation generally assumed the 
 form of perpetual leases, for which services or rents fairly 
 proportioned to the value of the land were of course ex- 
 pected.* The incoming tenant would rarely have had the 
 power to pay, even if the grantor had the ingenuity to de- 
 mand, anything like an exorbitant " fine " for the privilege of 
 occupying the land on terms which did not represent its real 
 value ; and it is natural to suppose that a tenant, if only for 
 his own sake, in transferring a portion of his estate, did not 
 fail to impose such conditions as common prudence would 
 dictate ; while the heir of course succeeded to the services 
 which his father had required. But the cases of subinfeu- 
 dation above referred to were of a somewhat different kind. 
 They arose from the peculiar forms of tenure kno'wn as 
 frank-marriage and frankalmoign ; and it appears from a 
 passage in Glanvil, that subinfeudation for these objects 
 was recognised as peculiarlj'- deserving of encouragement 
 and protection.f In the former case the daughter, in whose 
 
 * Williams, Real Property, pp. 36, 37. 
 
 t Potest quiUbet Liber Homo terram habens quandam partem terra; suk: 
 cum filia sua, vel cum alia qaalibet muliere, dare in Maritagium . . . QuUibet 
 etiam cuicunque voluerit potest dare quandam partem sui liberi tenementi . . 
 loco religioso in Eleemosynam. Glanv. Lib. 7, c. 1. It is perhaps allowable to 
 conjecture that the clause vel cum alia qualiiet muliere is intended to cover 
 the case of a mesne lord who wished to create such a tenure on the marriage of 
 a younger son. 
 
47 
 
 interest the conveyance was effected, and her husband, held 
 the land so granted to them and their heirs free from all 
 manner of service, with the exception of an oath of fealty, 
 until the fourth degree of consanguinity from the donor was 
 passed ; while grantees in frankalmoign — usually religious 
 houses or corporations — were free for ever from any kind of 
 temporal service.* The recognition of such grants was 
 doubtless due to the authority of the Church, and must 
 clearly have been always liable to grave abuse ; and the un- 
 justifiable encroachments on the rights and expectations 
 both of the heir and the superior lord which thence arose, 
 soon gave rise to stringent enactments enforcing the ne- 
 cessity of licences in mortmain for all such conveyances — 
 enactments, however, which ecclesiastical ingenuity was 
 constantly successful in evading, and which eventually pro- 
 duced the "elaborate system of conveyances to lose, which 
 flourished under the protection of the ecclesiastically ad- 
 ministered equity-courts."!- 
 
 The free right of alienation, as the indefeasable preroga- 
 tive of every tenant of an unconditioned fee, was definitively 
 established by Qioia emptores ; as has been observed above, 
 the steps by which it was acquired were extremely gradual ; 
 and the concession was only finally made, partly because 
 the barons had begun to see that it was less injurious to 
 their interests than the alternative practice of subinfeuda- 
 tion, of which I have traced the history, partly because the 
 policy of Edward I. was distinctly adverse to the more 
 illiberal of the restrictions which feudalism had imposed. 
 The first advance in this direction seems to have been made 
 by the seventieth law of Henry I., which, while maintaining 
 the inalienable character of Bockland, expressly allowed 
 every free man to dispose as he pleased of lands he had him- 
 self acquired. + If, however, his whole property consisted in 
 acquisitions he was not permitted, we are informed by 
 
 * WHliams, Real Property, pp. 36, 37. 
 + 2 Blackst. Comm. 268-272. 
 J Vide p. 12, supra. 
 
48 
 
 Glanvil, to entirely disinherit the heir-at-law* The 
 next step, according to Blaekstone, was the concession 
 of full liberty to alienate in the case of lands pur- 
 chased by a man " to himself and his assigns ;" and, 
 apparently at the same time, it was decided that one- 
 fourth of the ancestral estate mightbe conveyed away without 
 the consent or priority of the heir ; a provision which it 
 may be conjectured was first evoked at the instance of the 
 clergy, or possibly of creditors at a time when bonds of spe- 
 cialty were not in general use, and the obligation of the heir 
 to satisfy his father's debts was very undefined. It seems 
 to have been shortly after this that, as the tenants gradually 
 became stronger, less willing to accept land under the old 
 strict conditions, of which accumulated experience had 
 already demonstrated the burden and abuse, and more deter- 
 mined to recover the freedom of alienation their English 
 predecessors had enjoyed, the form of feoffment came into 
 general use, by which estates were conveyed to the pm-- 
 chaser, his heirs, or whotfnsoever he might assign ; and the 
 livery of seisin on such conditions involved at first full 
 liberty, as well of alienation as of subinfeudation. It was 
 during the reign of Henry III., from whose irresolute 
 administration the barons succeeded in extorting many 
 concessions which his son, though a man of very different 
 calibre, was unable and perhaps unwilling to annul, that 
 feoffments of this character began to furnish the rule by 
 which all grants were construed ;f and even in the case of 
 estates limited, not merely to a man " and his heirs," but to 
 the purchaser " and the heirs of his body," it was held that 
 the tenant had full liberty to alienate immediately on the 
 birth of issue. The heir, it was laid down, had no legal 
 claim on the gift made to his ancestor ; his birth was simply 
 the condition which rendered it absolute ; nihil acquirit, 
 writes Bracton, ex donatione facta antecessori , quia cum 
 donatorio non est feoffatus. The fee-simple, it was held, 
 
 * Si questum tcmtum habuerit is qui partem terrfe su£c donare voluerit, tunc 
 quidem hoc ei licet : sed non totiim questum, quia non potest filium suum 
 hceredeni exhajredare. — Glanvil, Lib. 7, c. 1. 
 
 + Williams, Real Property, p. 38. 
 
49 
 
 vested from the beginning, subject only to the reversion to 
 the grantor on the event of the gi-antee dying without issue;* 
 and if he had issue, and suffered the conditional fee to descend 
 to the heir, the latter might immediately convey it away."I" It 
 is clear that when all grants began to be construed in this 
 manner the heir's rights were in theory gravely imperilled ; 
 practically, as will appear from what has been said above, 
 they were in no great danger except from those eleemosy- 
 nary grants, frequently induced by superstitious terror, 
 which law constantly prohibited and equity as constantly 
 protected; but Primogeniture had been for the time reduced 
 to a custom, and rested on the more or less precarious 
 footing of established precedent, social feeling, and economical 
 convenience. The encroachments on the feudal privileges 
 of the superior lord were, however, of a more direct and 
 serious character; the alienations which domestic interests 
 must frequently have dictated to the tenant diminished the 
 value of his services in much the same way as the as yet 
 unchecked practice of subinfeudation; while the chance of a 
 reversion, at one time considerable, had become practically 
 infinitesimal. It was for these reasons that the barons, five 
 years before Quia emptores had established the unfettered 
 power of alienating estates held in fee simple, procured the 
 enactment of the celebvaiedst&tuteDe Bonis Conditionalibus,'\. 
 which eSectually protected both the remainder of the heir 
 and the reversion of the lord in estates granted to the 
 tenant and the heirs of his body. The form of the gift and 
 the intention of the donor were for the future to determine 
 the devolution of the land; and feoclwm talliatwrn, the 
 ofispring of Be donis,^ restored in all its pristine strictness 
 the birth-right of the eldest son. For nearly one hundred 
 and seventy years the law of Primogeniture prevailed in all 
 its strictness over most of the landed property in England, 
 by means of estates tail which it was impossible for the 
 
 * Wiffion V. Berkley, Plowd, 233. 
 t Nevil's case, 7 Rep., 124. 
 J St. ]3Edw. I., 0. 1. 
 
 § " Littleton tells us that tenant in fee-tail is by virtue of the Statute of 
 Westminster the Second." — 2 Blackst. Comm., 112. 
 
50 
 
 tenant in possession either to alienate during life or control 
 by any posthumous testament; and it therefore seems 
 advisable, before proceeding further with that portion of the 
 history of English land-law which is connected with the 
 present subject, to sketch the origin and histoiy of this 
 peculiar system of tenure from its first introduction at Rome 
 to its later course in modem Europe. 
 
51 
 
 Seption III. — The History of Entails. 
 
 The assertion of Gibbon, adopted by Adam Smith, that 
 entails were unlinown to the Roman law, has been success- 
 fully questioned by more recent writers, and particularly by 
 McCulloch.* It is true that the system of tying up estates 
 by means of settlements is of c|u.ite modern origin ; but the 
 Roman proprietor of the Imperial period was protected by 
 the PrEetor in his efforts to prescribe the devolution of his 
 property through more than one generation by creating a 
 series of life interests and remainders. It has, however, 
 been incorrectly supposed, doubtless owing to the sig-ni- 
 iication of the word in French property law, that the vulgar 
 or pupillar substitutions, with which students of Roman 
 law are familiar, were of the nature of entails. The former, 
 however, was merely the substitution of another heir in the 
 event of the one first named declining the inheritance, or 
 dying, or becoming disqualified during the testator's lifetime, 
 the object, of course, being to avoid the danger of accidental 
 intestacy. In the latter case, a second heir was named on 
 whom the property should devolve in the event of an infant 
 heir dying while disqualified by minority from making a 
 will. In neither instance was any exceptional restraint im- 
 posed on alienation. The origin of entails must rather be 
 sought in the military testament, which was made under 
 peculiar conditions, and by which the testator was permitted 
 to control the posthumous devolution of his property to an 
 extent not then conceded to the civilian."!" The heir, under 
 a testament so executed, might be confined to a life interest, 
 and another substituted to whom the property was to go on 
 
 * Treatise ou Succession, pp. 44, 45. 
 
 + Montesquieu says that the military will "ne fut etabli que par les 
 constitutions des empereurs ; ce fut une de leurs cajoleries envers les soldats." 
 (Bk. xxvii.) This of course is a mistake ; such wills were recognised com- 
 paratively early in the republican period ; we find Cicero, for instance, 
 mentioning the fact that in recent times many such wills had been invalidated 
 owing to the change by which the armies were commanded, not by the consuls 
 auspicato, but by proconsuls who did not hold the auspices ; ex quo, he says, 
 in procinctu testamenta perierunt. — De Nat. Deorum, ii. 9. The privileges, 
 however, referred to in the text are of course to be assigned to the '"iiperial age. 
 
 £ 2 
 
52 
 
 its expiration. Wills of this kind doubtless suggested the 
 idea of utilising the method of devising on trust, or by 
 fidei-commissa—origmally invented to elude the provisions 
 of the Voconian law — for a similar purpose. Trusts of the 
 ordinary description were called express ; and under them 
 the Jiduciarius had no more beneficial enjoyment of the 
 property than an English trustee ; but sometimes the testa- 
 tor* commanded him to enjoy the property for his own life, 
 and to bequeath it to a person named in the original testa- 
 ment ; such trusts were entitled tacit. The fiduciary heir 
 was generally required to leave the property to such person 
 as, at his demise, should be his own heir, according to the 
 law of intestacy, or, sometimes, the heir of the original 
 testator. The fiduciary had strictly a life interest ; he was 
 not permitted to alien the estate during his lifetime ; and he 
 could not dispose of it after his death otherwise than accord- 
 ing to the instructions he had received. It would seem that 
 at one time it was possible to create a series of life-estates 
 in the foregoing manner ;-f" but the policy of Justinian 
 " abhorred perpetuities ;" their inconvenient eSects probably 
 had been soon experienced; and the 159th Novel decreed 
 that the appointed heir of a tacit fiduciary should receive 
 the property untrammelled by any similar restrictions, j 
 
 Gibbon speaks of the trust substitutions of French law as 
 " a feudal idea grafted on the Roman jurisprudence." In 
 France, as in England after the enactment of Be Bonis, and 
 for a much longer period, it was permitted by instruments of 
 this kind to tie up property for any number of lives. Every 
 
 * Testator fidei-committens. 
 
 + MoCuUoch cites the following specimen of a Eoman entail, as "remarkable 
 for its brevity, comprehensiveness, and distinctness": — VcHo meas cedes non 
 vendi ab hceredibus meis neque fcener&ri super eas; sed rimnere eas finnas simplices 
 meis filiis et nepotibiis universum tempus. Si autem aliguis eorum voluent 
 vendere pwrtem suam, velfrenerari super earn, potestatem Imbeat vmdere cohceredi 
 suo, et fcenerari ab eo; si autem aliquis praiter hcec fixerit, erit quod obligatur 
 inutile atgue irritum. (Digest. Lib. xxxi. c. 88 15.) 
 
 X Restit-utionesfidei-commissai usque ad unumgradumconsistant. The foregoing 
 explanation of the Roman law of entails is abridged from a very lucid exposition 
 in an article in the Westminster Scview, October, 1824, the writer of which a 
 paragraph in Mr. Mill's Autobiography permits me to identify with John Austin. 
 
53 
 
 possessor of the estate was grev6 de substitution to transmit 
 it to the person who, according to the arrangement prescribed 
 by the founder, might be entitled to succeed him. It was 
 not until 1560 that by the Ordonnance d'Orldans, which has 
 been attributed to Chancellor de I'HSpital, such substitu- 
 tions were limited to the third degree, reckoned inclusively 
 from the author of the trust. This enactment was confirmed 
 six years later by the Ordonnance de Moulins, which also 
 limited entails previously instituted to the fourth degree. 
 Matters continued on this footing until 1792, when substi- 
 tutions and entails were entirely prohibited. The sentiments 
 subsequently formulated in Proudhon's axiom. La propri^te 
 c'est le vol, were at that time extremely popular ; and the 
 legists doubtless believed that by abolishing trust estates 
 they would be employing the surest means of carrying out 
 the view of the revolutionists, and abolishing so objectionable 
 an institution. By the Code Napoleon substitutions were 
 indeed restored, but confined within such narrow limits as 
 to make them practically powerless for good or ill. The 
 legitime was strictly exempted from their operation ; and 
 while it was allowed to create life interests in the disposable 
 portion of the property, they were only permitted if made 
 in favour of the testator's own children, while the legatee 
 was himself greve de restitution, commanded, that is, to 
 bequeath the whole of the property so acquired to his chil- 
 dren in equal shares.* 
 
 Having thus briefly sketched the history of trust substi- 
 tutions in Roman and French law, I return to the considera- 
 tion of the very different fortune which, since the statute of 
 Westminster the Second, the system of entailing — on which 
 Primogeniture from that time mainly depended — has enjoyed 
 in England. There is not, at least within the knowledge of 
 the present writer, any available information as to the pre- 
 cise proportion that the land which fell under the provisions 
 of Be Bonis, which prohibited, bore to the land which was 
 affected by Quia emptores which, passed only five years after- 
 
 * The object of this regulation appears to have been to enable a testator, 
 who vpished to benefit the children of a son whom he distrusted, to make the 
 latter a sort of fidudarius. 
 
54 
 
 wai'ds, may be said to have encouraged alienation. It is 
 probable, however, that the language of Blaekstone and 
 other writers has produced an impression that a greater 
 extent of landed property was held in strict entail than was 
 actually the case* The later statute, we know, was passed 
 at the instance and for the convenience of the barons, many 
 of whom must have held estates unaffected by the preceding 
 enactment — a circumstance which doubtless increased the 
 dissatisfaction of others when they began to experience the 
 evil effects which a system of perpetual entails must 
 inevitably prodiice. We know moreover that large grants 
 
 * Thus Mr. Neate, formerly Professor of Political Economy at Oxford, in a 
 lecture delivered in that University in 1859, speaks of the right to alien having 
 been taken avpay from the great majority of proprietors by this statute : — " By 
 this statute, then, the power of alienation, though recognised the more readily 
 perhaps on this account by the later statute of Quia emptores, was effectually 
 taken away from the greater part of the lands of this country, assummg, as we 
 may safely do, that the greater part of the land, as certainly by far the greater 
 part of the lordships did, belonged either to the nobility or to men sufficiently 
 rich to desire either to found or to perpetuate a family. A further inducement 
 to entail lands — and in those times of civil war it was a very powerful induce- 
 ment — was that entailed lands in the hands of the heir were exempted 
 from forfeiture even in the case of high treason." Two lectures on the History 
 and Conditions of Landed Property, p. 28 : by Charles Neate, M.A., Fellow of 
 Oriel College. Oxford and London, J.H. and J. Parker, 1860. — It appears, however, 
 from a pamphlet published five years later by the same author that he subse- 
 quently saw reason to greatly modify the opinion contained in the above 
 passage. "This statute," he says, "is spoken of in Blaekstone as a family law, 
 and we are thereby led to suppose that the land of the country was generally 
 brought under the fetters of entail by means of it. But this toas very far from 
 heing the case. Whatever may have leen the reason of the statute, its importance 
 and effects have been greatly overstated. The Great Lords who passed the statute 
 had probably no thought of diminishing their power over their demesne lands by 
 entailing them upon their sons, and if they wished to do so they could not do 
 it without resigning the immediate ownership. In those days there could be 
 no will of land, and the simplicity of the law knew of no means by which a 
 man who had the fee simple in possession could dispose of the reversion of his 
 estate, reserving to himself the enjoyment for life. No doubt it frequently, 
 or perhaps generally, happened that many granted a portion of their estates as 
 an immediate provision for a son or daughter upon marriage, and this was done 
 by a very simple and common form of entail. But men were not likely to 
 grant the whole, or even the greater part of their property in this way, and 
 there is abundant proof that a very large portion of the land of the country was 
 free from the restriction of entail, and that the lords and owners of estates con- 
 tinued very generally to enjoy and to exercise the feudal liberty of alienation." 
 — The History and Uses of the Law of Entail and Settlement, by C. Neate, 
 M.A., M.P. London: Ridgway, 1865. 
 
of land were constantly being made under the Plantagenet 
 kings for religious and charitable purposes ; wjth a single 
 exception, every college in this University, of which there 
 is scarcely one which does not in great part owe its exist- 
 ence to munificent donations of landed property by private 
 benefactors, was founded subsequently to Be donis; no 
 less than seven colleges in Cambridge, and the same number 
 at Oxford, date from the period when it was impossible to 
 bar the heir's succession to any portion of an entailed estate ; 
 and it is a legitimate inference from this circumstance, that 
 the quantity of land held in fee-simple must have always 
 been very considerable. . Moreover, it was in the reign of 
 Edward III. that the doctrine of Uses was first developed ; 
 as a transfer of the use involved also a conveya^nce of the 
 legal estate, they cannot have been applied to estates tail 
 till several generations afterwards ; and yet we know their 
 diffusion through the whole land to have been extremely 
 rapid, so much so indeed that as early as the succeeding 
 reign the cpestionable character of some of these trans- 
 actions called for legislative interference.* At the same 
 time, notwithstanding all these considerations, the effects of 
 Be donis in restricting alienation must have been very 
 widely felt ; and for the grievous consequences which it 
 from time to time produced, a remedy was long sought in 
 vain. 
 
 The sketch of these consequences given by Blackstone"f" — 
 who himself bases his description on a passage in Bacon's 
 Treatise on the Use of the Law — is too well known to re- 
 quire more than the briefest allusion here. The injurious 
 effect on the character of the eldest son, brought about by 
 the certainty of succession, seems to have quickly become 
 palpable. Fathers complained of disobedience and indo- 
 lence, of vicious habits, wastefulness, and self-indulgence 
 which, having no substantial means of marking their dis- 
 pleasure, they were powerless to correct ; while the hard- 
 ship of being unable, even with the consent of the eldest, to 
 make any suitable provision for the younger children must 
 
 * St. 15 Rich. II. 0. 5. +2 BJaotst. Com. lib". 
 
56 
 
 have been severely felt. The pecuniaiy position of the 
 tenant in possession was also greatly prejudiced ; for while 
 leases for terms were unknown, the landlord could not 
 su.b-let to advantage ; no tenant would pay a fine for the 
 privilege of a precarious possession which the demise of 
 the lessor might at any moment terminate; and while 
 the tenant for life was sometimes unwilling and almost 
 always unable, the occupier was still more reluctant and 
 nearly equally powerless to effect any substantial improve- 
 ments, however urgently required, of which the former 
 could not bequeath the fruit or the latter feel assured of 
 the enjoyment. All the objections, in fact, which, despite 
 much recent legislation, are still urged against modem 
 settlements, as deterring the expenditure of capital on the 
 land, applied with ten-fold force to a system of perpetual 
 entails, suddenly introduced at a period in many respects 
 progi-essive. The state of the law pressed hardly on other 
 classes than the owners of land ; it often defrauded creditors 
 and intending purchasers of what was rightly theirs. The 
 heir, unless bound by specialty, was free, according as his 
 honour or his judgment dictated, to pay or to repudiate the 
 debts which his ancestor had incurred ; and it was not until 
 the reign of Henry VIII. that the heir to an entailed estate 
 was rendered liable even to Crown debts, and then only to 
 those secured by judgment* The spirit of the common 
 law may indeed be inferred from the circumstance that, 
 until little more than twenty years ago, when a more equit- 
 able enactment was passed on the initiative of a private 
 member,-]- the personal estate of a deceased intestate was, 
 if sufficient for the purpose, exclusively liable for the satis- 
 faction of his mortgage debts, while the realty descended 
 unincumbered to the heir-at-law. Purchasers also, in the 
 period subsequent to de donis, were often cruelly wronged 
 by the production of latent entails which deprived them of 
 land they had duly paid for, and of which they had done 
 their utmost to ascertain the validity of the title. We are 
 
 * St. 33 Hen. VIII., c. 39, a. 75. 
 
 + St. 17 & 18 Vict., 0. 113 (Mr. Locke King's Act); see, also, St. 30 & 31 
 Vict., c. 69. 
 
57 
 
 told, moreover, that the tenant for life became " less fearful 
 to commit murthers, felonies, treasons, and manslaughters," * 
 since entailed estates were not liable to forfeiture, and the 
 consequences of his personal offence could not be visited on 
 his heir; while the Crown itself was prejudiced by the 
 statute, which greatly diminished its security for debts due 
 from subjects whose property came under its provisions ; so 
 that " the King could not safely commit any office of account 
 to such whose lands were entailed, nor other men trust them 
 with loan of money ."f 
 
 It certainly speaks volumes for the value attached to a law 
 which placed the prerogative of the eldest son beyond the 
 parent's control, and which maintained the principle of 
 hereditary succession to ancestral property in all its strict- 
 ness, that, from the day when Be donis received the royal 
 assent, neither king, nor barons, nor commons introduced 
 any legislative proposal for its modification. The method 
 by which in 1473 entails were for the first time barred, and 
 the expectation of the heir defeated, was, as is well known, 
 the result not of an enactment by the Parliament but of a 
 decision of the judges. The device resorted to in Taltarum's 
 case has been stigmatised by writers who do not affect to 
 deny the generally beneficial nature of its consequences as a 
 piece of "legal legerdemain;" but on the whole it seems 
 somewhat remarkable that so commonplace and obvious a 
 proceeding as a collusive recovery — for which the Roman 
 cessio in iure furnished an almost exact precedent — was not 
 long previously discovered by legal ingenuity. For it is to 
 be noticed that this method of getting rid of his fetters was 
 as open to the tenant in the time of the early Plantagenets 
 as in that of the fourth Edward. The tenant in tail had 
 never been exempted from the duty of defending his title in 
 a court of law; and if he intentionally and deliberately 
 failed to do so, his heir was entirely without redress. The 
 case, it is true, was somewhat different with life tenants, at 
 least from the time of Richard the Second. 'A statute 
 passed in that reign,j which had the most important conse- 
 
 * Bacon, Treatise on the Use of the Law. + Ibid. J St. 9 Rio. II., o, 3, 
 
58 
 
 quences on the future history of settlements, furnished the 
 heir with means of avoiding any adverse judgment obtained 
 by the collusion or default of a life tenant in possession; but 
 no such remedy was ever granted to the heir of an entail, if 
 we except the protection afforded him by the process of 
 formedon* which, as soon as it was really tested, immedi- 
 ately proved fallacious. The method pursued in Taltarum's 
 case was really extremely simple, and the complicated system 
 of common recoveries — ^the legal drama in which the 
 demandant, the tenant to the pj'OEcipe, the tenant in tail, and 
 the common vouchee, each played a rdle elaborately rehearsed 
 — was of later gi-owth. In the former case, the tenant in 
 possession simpljr vouched a "dummy" lord,supposed to be the 
 representative of the original grantor, to warrant his title; 
 the dummy duly made default; and judgment was pro- 
 nounced for the plaintiff, the tenant in tail in remainder being 
 supposed to have a remedy, which of course was barred by 
 the attendant circumstances, against the defaulting Avar- 
 rantor.f Such in brief was the process by which entailed 
 estates once more recovered their plasticity;, and as 
 Parliament, which had refused to confer, did not interfere to 
 destroy the privilege, we must suppose, to adopt the phrase of 
 the modern jurist, that the wisdom of the legislature 
 commanded what it tacitly allowed. Such proceedings of 
 course in time became far from uncommon; and at length 
 they may be said to have received indirect parliamentary 
 sanction from a series of enactments which in the sequel 
 opened up another method of effecting the same result. 
 
 The assurances which went by the name of finc^ — so 
 called because they were said to put an end to the disputes 
 of the various claimants to an estate — were not originally 
 capable of being applied to estates tail. The power of barr- 
 ing future claims by this means was taken away by a 
 statute of Edward III.,t but restored with some extensions 
 as to time, and the further condition of proclamation in open 
 court, by enactments of Richard III. and Henry VII ;§ and 
 
 * 3 Elaokst. Comm., 191-193. + Williams, Real Property, pp. 43, 44. 
 
 t St. 34 Edw. III. 0. 13. § St. 1 Kic. III. .;. 7 : 4 Hen. VII. c. 24. 
 
59 
 
 by a judicial construction of the latter act* a fine levied by 
 a tenant in tail was for the first time allowed to bar the 
 title of his issue, in the event of no claim being made by 
 them ■within the following five years. In the next reign, a 
 further act was passed, which rendered a bar so effected im- 
 mediate yf and the only difference between a fine and a 
 common recovery from that date consisted in the circum- 
 stance that by the former only the issue, by the latter all 
 remainders and reversionary interests as well, could be 
 effectually barred ; a circumstance which seems to prove 
 conclusively that the feeling of the legislature in the reign 
 of Henry the Eighth was distinctly hostile to any pretensions 
 to an indefeasible right of succession on the part of the 
 eldest son. The power of a tenant in tail in possession to 
 alienate during life was thus firmly established, and has not 
 since been questioned. The method however of effecting 
 this object was long felt to be tmnecessarily complicated; 
 and at length, in the last reign, on the recommendation of 
 the Real Property Commissioners, fines and recoveries were 
 entirely aboHshed, and a simple deed, executed by the 
 tenant and enrolled in the Court of Chancery, substituted 
 in their place, j 
 
 It was also in the reign of Henry VIII. that, by the 
 Statute of Wills, a free power of testamentary disposition 
 was once more conceded; with regard to lands held by 
 knight's service, it was, however, as has been already men- 
 tioned, restricted to two-thirds of the estate ; but since there 
 was no such limitation on conveyance inter vivos, this pro- 
 vision cannot have been very severely felt ; and when, on 
 the Restoration, all tenures in the kingdom were converted 
 into free and common socage,§ the liberty of bequest became 
 universally complete. 
 
 It is important to observe that in the middle ages, from 
 the time when collusive recoveries and fines were first 
 applied to entailed 'estates, down to the period when the 
 system of contingent remainders was elaborated, and the 
 
 * Williams, Real Property, p. 48 nt. c. 
 
 t The account of these enactments is based on Williams, R. P., pp. 47, 48. 
 
 J St. 3 and 4 Will. IV. c. 74. § St. 12 Car. II. c. 24. 
 
60 
 
 practice of making family settiements arose, the power over 
 landed property entrusted to the tenant in possession was 
 greater than he has enjoyed either before or since. That 
 this liberty was on the whole beneficial to the country, at 
 the time when it was exercised, can scarcely be a matter of 
 doubt ; although this admission does not necessarily involve 
 the unqualified condemnation of the more restrictive system 
 which has arisen under the changed economical and social 
 conditions of modern times. It would moreover be ex- 
 tremely rash to conclude that the right of disinheriting was 
 frequently resorted to, or that the privilege of the eldest son, 
 which custom so long had sanctioned, at once or in many 
 cases fell into desuetude. " Younger brothers are commonly 
 fortunate," writes Bacon, in his essay on Parents and 
 Children, "but seldom or never, where the elder are dis- 
 inherited;" and the numerous instances in which to our 
 knowledge large landed estates were transmitted practically 
 intact through all the vicissitudes of the Tudor and the 
 Stuart reigns lead us to believe that at the time when 
 Primogeniture was in the strictest sense a custom, and a 
 custom which borrowed little support from law, it was 
 scarcely less generally and strenuously maintained than 
 under the Plantagenet or the Hanoverian line. 
 
 Family pride and legal ingenuity w'ere busily engaged 
 under the Stuarts in the effort to reimpose on landed pro- 
 perty the fetters from which it had escaped, and their 
 endeavours were ultimately rewarded with complete success. 
 The celebrated decision in Shelley's case, pronounced in the 
 time of Coke, must have frustrated many efibrts to prevent 
 alienation by deciding that to give a tenant for life a 
 remainder in fee-simple or in tail was merely to " limit " 
 the estate — that is, if legal phraseology be converted into 
 plain English, to render the possessor's power as unlimited 
 as possible. But other and more effectual methods of attain- 
 ing the desired object were soon devised. By the statute of 
 Kichard II.* above referred to a tenant for life only, in 
 possession, could not suffer a recovery without its being 
 
 * St, 9 Ric. II. c. 3. 
 
61 
 
 liable to be set aside at the instance of the heir ; while if he 
 held the land, by conveyance or settlement, to himself and 
 his heirs, or himself and the heirs of his body, the expecta- 
 tion of the latter could at any time be defeated. Accord- 
 ingly, the heir was now described in deeds not as such but 
 as the eldest son ; and in the construction of such instru- 
 ments the judges held that the son, when he came into 
 existence, took by the donor's gift and did not inherit from 
 his father. 
 
 Contingent remainders of this kind however were soon 
 found to be not perfectly secure. A contingent remainder 
 may be briefly described as an estate not ready, like a vested 
 remainder, to come into possession at any moment after its 
 limitation when the prior estate may happen to determine. 
 It is an estate future not merely in possession but also in 
 interest. It being then an ancient maxim of feudal law 
 that the seisin must never be left without an owner, if the 
 contingent remainder did not vest during the continuance of 
 the preceding particular estate, that is, if the future interest 
 in question did not become a present one before the ex- 
 piration, or on the instant of the expiration, of that which 
 went before it, the remainder was entirely void. In con- 
 sequence of this principle, means wei'e discovered by* life 
 tenants of voiding contingent remainders. The tenant for 
 life surrendered his estate, or conveyed it away, or procured 
 its merger by purchasing a vested remainder in fee-simple ; 
 and if he adopted any of these courses before the birth of a 
 son, the future interest of the latter was entirely destroyed. 
 It was in order to defeat these proceedings that some of the 
 leading lawyers of the Restoration invented the system of 
 appointing trustees to preserve contingent remainders, who, 
 by the terms of the deed in each case, were to come into 
 possession in the event of the particular estate determining 
 otherwise than by the decease of the life tenant, in order to 
 support the remainder and give it an opportunity of vesting 
 before his death. . The invention of this plan is generally 
 ascribed to Sir Orlando Bridgman,* who, it will be re- 
 
 * 2 Blaokst. Coram. 172. Neate, History, &o. p. 14. The latter rather 
 Strongly observes ; — " It was then only that the Law of Entail was effectually 
 
62 
 
 membered, held the Great Seal as Keeper in 1672, before 
 the Chancellorship of Shaftesbury. It continued to be in use 
 until the present reign, when the enactment of a statute to 
 preserve contingent remainders, notwithstanding the for- 
 feiture, surrender or merger of the particular estate, i-endered 
 the appointment of trustees no longer necessary.* The only 
 restraint which the wisdom of the law has imposed on the 
 creation of these estates is that they cannot be limited to an 
 UTiborn person with remainder to his children, the remainder 
 in such cases being absolutely void."!" The law considers 
 that it thus vindicates the assertion that it "abhors per- 
 petuities ;" and the substantial effect of the rule is that 
 property can be tied up for a life, or any number of lives, 
 in being, and for twenty-one years afterwards. A tenant in 
 tail in possession can always bar the entail ; and if his 
 estate is in remainder ho can equally do so, with the con- 
 sent of the " Protector " of the settlement, who is nearly 
 always the life tenant in possession.^ 
 
 We are now in a position to consider the operation of the 
 ordinary settlement of modern times, and to appreciate the 
 absurdity of the vulgar belief that much of the property in 
 this country is "heir land," that is, that it is so bound to a 
 certain course of devolution that no individual owner can 
 ever modify its descent.§ In point of fact, property which 
 is constantly kept in the same family is so confined by the 
 custom of Primogeniture, which dictates the character of 
 periodical re-settlements, occurring on an average once in 
 
 restored, and that mosaic of legal antiquities — that thing of shreds and patches 
 of dead law, or rather of fraudulent evasions of legal principle and legislative 
 enactment — which is called a Marriage Settlement, received its f uU completion." 
 
 * St. 8 & 9 Vict. ,;. 106. 
 
 t The only exception to this rule lies in the application by the courts of the 
 cy pris doctrine, when such dispositions are eifeoted by vdll. In such cases the 
 unborn son acquires not a mere life estate — as he would if the grant had been 
 made by deed — but an estate tail, so that his own children have a possibility of 
 inheriting. 
 
 t St. 3 & 4 Will. IV. v;. 74. 
 
 § There are of course some few properties — such as Blenheim and Strath- 
 fieldsaye — held directly of the State, which are altogether inalienable, except 
 by consent of the legislature; but these depend on the special enactment which 
 created them. 
 
(33 
 
 each generation. The usual course is for the son, who is 
 tenant in tail in remainder, on marrying, or sometimes 
 immediately on attaining his majority, to concur with his 
 father, the protector of the settlement, in re-settling the 
 estate. The entail is barred; the son becomes tenant for 
 life in remainder expectant on his father's death; and a con- 
 tingent remainder in tail is limited to his unborn heir. 
 Advantage is taken of the re-settlement to provide for the 
 liquidation of outstanding liabilities, and to ensure, by means 
 either of rent-charges or powers, what may be considered a 
 suitable provision by way of jointure for the widow, and 
 annuities for the younger sons. If the re-settlement is 
 effected on the son's marriage, these objects are in them- 
 selves ordinarily sufficient to induce him to assent to it ; if 
 at a period before he contemplates marriage, he is usually 
 compensated for the sacrifice to which he submits, in ex- 
 changing a tenancy in tail for a life interest, by an addition 
 to his allowance, granted out of the estate, sufficient to 
 enable him to keep up his position with dignity and comfort, 
 or by such other means as family affection or convenience 
 may suggest. But if the son should chance to be insensible 
 to any of these considerations— a very rare contingency — 
 there is no means whatever of compelling him to surrender 
 his vested expectancy in tail, which he can exchange, the 
 moment he acquires possession, for a fee-simple estate. 
 
 Before proceeding to consider the economical and other 
 objections which have been urged against this system, it 
 may be worth while to give a brief account of the history of 
 entails in Scotland, which presents some features different 
 from those with which we are familiar in other parts of the 
 kingdom. 
 
 The modern system of entailing appears to have arisen in 
 Scotland at about the same time as that at which the device 
 of contingent remainders was perfected in England by the 
 lawyers of the Eestoration. It is stated that the first 
 recorded instance of an entail occurred on the Roxburgh 
 property in 1648 ; but as this and other instruments copied 
 from its example were made at common law, and were with- 
 out statutory sanction, it was considered doubtful whether 
 
G4 
 
 an action to set them aside might not prove successful.* 
 Such an attempt was made in 1662 in the Court of Session, 
 but the Court, by a small majority, sustained the entail. The 
 point however was not considered to have been definitely 
 decided by this judgment; it was notorious that the "factors" 
 which influenced the opinions of members of that Court 
 were somewhat complicated ; able lawyers were understood 
 to have expressed an opinion that the judgment was founded 
 on policy rather than law ;f and entails were still regarded 
 with little confidence until in 1685 an enactment — entitled 
 "an Act concerning tallies" — was passed, J which fully 
 established the legality of the practice, and permitted the 
 creation of entails of a perpetual character§ which have 
 never been allowed or tolerated by the law of England. 
 On the other hand, the same statute established the 
 principle of compulsory public registration of all entails, 
 and of all deeds and provisions relating thereto, a principle 
 which has since then been invariably maintained in Scotland, 
 with results which, so to speak, have accentuated the 
 grievance of Englishmen, and made them more keenly sen- 
 sible of the disadvantage under which they labour through 
 
 * McCuUocb, Treatise on Succession, p. 52. 
 
 + " The courts of law in Scotland have seldom, even in modern times, been 
 satisfied with endeavouring to administer the existing law fairly and impar- 
 tially ; but have usually endeavoured to make their decisions square with their 
 own views of what is right and proper." — McCuUoch, p. 67, note. Mr. MoCul- 
 loch goes on to say that in later times the feeling of the courts was very hostile 
 to the system of perpetual entails, and that they accordingly refused to restrain 
 practices which were obviously most injurious not only to the expectant heir 
 but to the public as well. " The House of Lords, however, pronounced such 
 practices to be illegal ; and conveyed to the Court of Sessions a very distinct 
 intimation that it was their duty fairly to administer the law as it stood, and 
 to leave its alteration and amendment to the legislature." — -Ibid. 
 
 t St. 1 Jao. vii., c. 22. '^ 
 
 § By this Act, "all his Majesty's subjects are empowered to tallie their lands 
 and estates in Scotland with such provisions and conditions as they shall think 
 fit, and with such irritant and resolutive clauses as to them shall seem proper." 
 Mr. McCuUoch says of the Act : — " It reduced heirs of entail to the condition 
 (nearly) of tenants for life, and gave entailers power to regulate the perpetual 
 destination of their property, subject only to the obligation of enrolling the 
 entail, with its various clauses and provisions, in a public register, there to 
 remain (such are the words of the act) adperpetvam rei memoriam." — P. 53. 
 
05 
 
 the absence from thiw country of a.ny geneiul system of the 
 same kind. 
 
 The secure establishment of the privileges of the eldest 
 son appears to have been only a secondary object of the en- 
 actment of James II. The primary object of the Estates 
 was apparently the protection of landed property, by means 
 of entails, from those forfeitures which were then so fright- 
 fully frequent, and which exposed the estate of even the 
 most loyal and well-afFected owner to confiscation whenever 
 the caprice, the rancour or the suspicions of the Crown, the 
 cupidity and avarice of courtiers, the supple ingenuity of 
 the lawyers, and the cringing servility of the judges, com- 
 bined to institute a fresh prosecution and coiidemn another 
 victim. As soon, in fact, as the Stuart dynasty was ex- 
 pelled, an Act was passed which expressly exempted en- 
 tailed property from forfeiture; but on the union of the 
 two kingdoms the Scotch law of treason was assimilated to 
 that of England, and from that time forward up to the en- 
 actment in 1870 of the statute* by which all attainders are 
 now abolished, the rule in both countries was that the 
 attainder of a tenant in tail forfeited the estate to his heirs, 
 though without prejudice to the interests of remainder 
 men. 
 
 The forfeitures of Scotch estates under the then existing 
 law, which resulted from the rebellions of 1715 and 17-15, 
 were extremely numerous, and much public attention was 
 directed to the matter. It was this controversy which pro- 
 duced Mr. Charles Yorke's well-known pamphlet, " Con- 
 siderations on the Law of Forfeiture for High Treasons," 
 Ml'. Yorke arguing, much as it was contended by the oppo- 
 nents of strict entails and the exemption from forfeiture 
 which they then implied, after the passing of Be Bonis, that 
 the liability to such a consequence was an additional security 
 for the good behaviour and loyalty of the tenant in posses- 
 sion."|" Such reasoning seems to have been at the time 
 
 * St.. 33 & 34 Vict. >;. 23. 
 
 t Mr. MoCuUooh speaks of Mr. Yorke's treatise as being practically a com- 
 mentary on the theory of Cicero : Nee vera mc fujit quam sic acerium parentum 
 scdera filiorum pwnis lui; sed hoc prceclare legibus comparatum est ut carilas 
 
 lihp.vm-wm. n.wj.f^rtrfijt maYP-ntPH rci vniMicm vprislpvpf. — -Ep, ad Brutum. 
 
 F 
 
C6 
 
 considered adequate ; and thei'e was no subsequent occasion 
 on which any grievance on a large scale was experienced 
 from the operation of the law. 
 
 The statute of 1685 had established a system of perpetual 
 entails; and until less than thirty years ago the law of 
 Scotland continued on nearly the same footing. During one 
 hundred and sixty years from the " Act Concerning Tallies " 
 Scotch law maintained entails as rigorously as English law 
 had done during the period, nearly the same in length, which 
 followed the enactment of Be donis. The Courts however 
 were hostile to the principle, and did their best to obviate 
 some of its natural consequences ; but these efforts were on 
 the whole ill-directed ; and attempts to evade the law by 
 the introduction of an illegal elasticity were liable to defeat, 
 and were frequently defeated, by an appeal to the House of 
 Lords. Up to the year 1770, an entailer might prohibit as 
 well the granting of leases as the charging of the estate with 
 any debts. It was very generally felt that such conditions 
 were so hostile to improvement as to require legislative in- 
 terference ; and accordingly in that year an Act was passed 
 " for the Improvement of Lands, &c., held in Scotland under 
 settlements of strict entail."* The provisions of this statute, 
 commonly known as the Montgomery Act, mil be noticed 
 in detail in the following section.^ Six years before it was 
 passed, considerable endeavours had been made in Scotland 
 to altogether abolish the system of perpetual entails. The 
 Faculty of Advocates were nearly unanimous in their dis- 
 like to such a system of tenure ; and a bill was drawn up, 
 on the suggestion of Lord Karnes, which would have prac- 
 tically assimilated the Scotch system to that of England. 
 The project, however, after considerable discussion eventually 
 fell through ; and matters continued on the footing on which 
 they had been placed by the " Act concerning Tallies " until 
 184^8. 
 
 It was an inevitable consequence of this condition of the 
 law that the proportion of strictly entailed property in 
 Scotland to that free from such restrictions should be con- 
 
 * St. 10 Geo. III. u. 51. t See p. 106, infra. 
 
07 
 
 stantly on the increase. Adam Smith, writing towards the 
 close of the last century, considered that more than one-fifth, 
 and perhaps one-third, of the land in Scotland was then 
 under strict entail. The practice has since that period been 
 continued with great rapidity. We learn from the public 
 register that during the twenty years between 1G85 and 
 1705, 79 entails were recorded ; during the next twenty 
 years the number amounted to 12.5 ; and it steadily in- 
 creased, Avith a progression exceeding that of arithmetrical 
 ratio, until in the corresponding period of the end of the last 
 and beginning of the present century the number of such 
 deeds reached 360 ; while the total during the twenty years 
 immediately following — from 1805 to 1825 — was no less 
 than 459. Making due allowance for the circumstance that a 
 considerable number of the deeds so recorded were not really 
 new entails, but referred to those which had been set aside 
 or terminated, or were themselves merely instruments of 
 revocation or explanation, there is still every reason to 
 believe that Mr. McCulloch who, writing in 1847,* esti- 
 mated the quantity of entailed land in Scotland as exceed- 
 ing one-half of the whole, was certainly not guilty of 
 exaggeration.-f- 
 
 At length, in 1848, the attention, of Parliament was 
 directed — partly perhaps by Mr. McCulloch's treatise — to 
 the constant and dangerously rapid growth of this practice ; 
 and by an Act passed in that year I a tenant in tail in pos- 
 session, if born after 1848, and of full age, may cut off the 
 entail without the consent of the next " heir substitute " being 
 
 * Mr. Brodrick is in error in stating (Cobden Club Essays, Second Series, 
 p. 67) that Mr. McCulloch. wrote in 1849, after the passing of the statute of 
 1848 for facilitating disentailing. Mr. McCulloch's treatise, which was based 
 on an article by the same writer in the Edinlmrgli Review for July, 1824, was 
 re-written and completed, as appeai-a from the Preface, not later than December, 
 1S47, and was published in 1848. It therefore naturally makes no reference to 
 the Act of that year, a knowledge of which Mr. Brodrick incorrectly attributes 
 to the author. 
 
 + p. 57. According to the General Report of Scotland published in 1814 the 
 valued rent of land in that country amounted in 1811 to £3,804,221, while 
 that of entailed estates amounted to £1,213,279, or nearly a third of the 
 whole. 
 
 t St, 11 & 12 Vict. c. 36 : see also 16 & 17 Vict c. 94. 
 
 F i 
 
68 
 
 required. Moreover, if he is himself the only heir in exist- 
 ence, and if he is of full age, and unmarried, he requires no 
 person's consent ; while in other cases the consent of all the 
 next heirs substitute, if less than three in number, is neces- 
 sary, or, if they are three or more, of the next three heirs ; and 
 in the latter case it is further required that the first of the 
 three — the heir apparent or " next heir substitute " — shall 
 be himself no less than twenty-five years of age, and free 
 from any disability. 
 
 In consequence of this Act, the position of a Scotch tenant 
 in tail has been evidently assimilated to a great extent, 
 though by no means completely, to the comparative liberty 
 enjoyed by his English counterpart. In point of fact, how- 
 ever, the occupier in Scotland of land under entail still 
 labours, it is held, under considerable grievances, particularly 
 as to his security for agricultural improvements, which have 
 been to a great extent removed in England ; and the matter 
 has within the present month* been brought under the 
 notice of Lord Hartington, who, speaking with the caution 
 befitting one who is not only a distinguished statesman in 
 esse, but a great landed proprietor in futuro, has promised 
 it his most attentive consideration. We are now, however, 
 after sketching the history of the Scotch system, which may 
 be said to view perpetuities with no disfavour, in a better 
 position to consider the merits of those objections which 
 from an economical point of view have been urged against 
 the English law, which on the whole may fairly claim to 
 " abhor " them ; while, before proceeding in another section 
 to this important portion of our subject, it is certainly 
 instructive to observe that, despite all that has been said of 
 the insuperable obstacles to agricultiiral improvement in- 
 volved in a system of perpetual entails — statements which 
 doubtless contain a very great amount of truth — the develop- 
 ment of agricultural enterprise and the progress of advanced 
 methods of cultivation in Scotland, during the last century, 
 has been at least as steady and at least as rapid as in any 
 other European country ; and this statement, the truth of 
 
 * November, 1877. 
 
69 
 
 which no competent inquirer woulcl ever question, is by no 
 means to be confined in its application to those estates which 
 various circumstances have hitherto preserved from the 
 influence of entails.* 
 
 * lu an Appendix to the Sketches of the History of Man, published in 1774, 
 Lord Karnes says, " The quantity of land that is looked up in Scotland by 
 entails has damped the growing spirit of agriculture. There is not produced 
 sufficiency of corn at home for our consumption, and our condition will become 
 worse and worse by new entails, till agriculture and industry be annihilated." 
 Now, the extent of land under entail in Scotland has been certainly more than 
 doubled, perhaps more than trebled, since this paragraph was written ; and yet 
 agi'iculture and manufactures have made a more rapid progress in the interval, 
 and especially during the last thirty years, when entails were most prevalent, 
 than in England, or in any other country whatever. — McCuUoch, p. 71. 
 
70 
 
 Section IV. — Economical Aspects of Primogeniture. 
 
 The ultimate right of the State to determine by legis- 
 lative enactment the conditions under which property in 
 land shall be acquired, enjoyed and transmitted by its sub- 
 jects has seldom if ever been questioned either by philo- 
 sophers or politicians, or by the landowners themselves. It 
 was asserted on many occasions by the various states of 
 Greece and the republic of Rome ; and if it was not habitu- 
 ally exercised by the nominal sovereign or chief in those more 
 primitive forms of social life out of which the polity both of 
 Greece and Home arose, and of which more than one type 
 has survived until nearly the present age, the reason lay in 
 the fact that the Village Community — which claimed the 
 right of portioning its land among its members as seemed 
 most expedient — was itself in all matters of fiscal policy and 
 economical organisation the real and sole sovereign.* It is 
 indeed an easy task to adduce substantial reasons in support 
 of that axiom of Montesquieu, which stands at the head of 
 this essay, and to justify the State in regulating the tenure 
 of landed property to an extent which if applied to other 
 forms of wealth would assuredly prove most injurious. The 
 land, as has been poetically remarked, is " the leaf on which 
 we live ;" it is the ultimate source of all production and 
 consequently of all wealth. The ownership or possession of 
 land moreover has in many countries and in many ages con- 
 stituted the sole claim to political rights, a circumstance in 
 itself sufficient, wherever it exiats, to justify a demand that 
 such ownership should be easily accessible to every citizen. 
 Again land, unlike almost every other form of riches, is 
 strictly limited in amount ; and any condition of the law 
 which tends to restrict the chance of acquiring a thing, in 
 
 * I may illustrate my meaning by referring to Sir Henry Maine's interesting 
 criticism of some of Austin's theories in the " Early History of Institutions " 
 (Lecture XIII. Sovereignty and Empire) and especially to his remarks on the 
 so-called sovereignty exercised by the Sikh chieftains in the Puujaub (pp. 380- 
 382) and by the Assyrian and Babylonian Empires, many centuries before, over 
 their remote dependencies (pp. 384, 385). 
 
71 
 
 itself desirable and limited in quantity, to a small fraction 
 of the entire population, may perhaps be regarded as priona 
 facie objectionable, if not unjust. As a matter of fact, the 
 majority of European countries have from time to time 
 passed laws intended to prevent the accumiilation of ex- 
 tremely large quantities of land in the hands of compara- 
 tively few proprietors ; and the measures, from an economi- 
 cal point of view most pernicious, recently passed by one of 
 our Australian colonies,* imposing a property tax on a scale 
 graduated according to wealth, must indirectly operate in 
 the same direction. Laws regulating the method of culti- 
 vation have at various times been still more numerous, and 
 have indeed been frequently of imperative necessity. It 
 cannot however be too strongly urged that the less we have 
 to do with such laws the better. The more a State finds 
 itself able to trust to the public spirit, intelligence and 
 enterprise of its individual members, and the more, in con- 
 sequence of the existence of such characteristics, it feels able 
 to leave them at liberty to administer and dispose of their 
 property without external interference, the healthier, we 
 may be assured, will be the general condition of such a 
 State, and the more certain and rapid its progress in in- 
 dustrial and agricultural improvement. The more an indi- 
 vidual is left to himself, the more he will be likely to exert 
 himself ; if invested with plenary legal rights, the chance is 
 far greater that he will not be unmindful of the correlative 
 
 * A careful summary of the present aspect of the Land Tax question in 
 Victoria will be found in the Times, Nov. 23, 1877. It appears that the bill, 
 enthusiastically supported by the people, has been accepted with extreme re- 
 luctance by the Legislative Council, and only in order to avoid a direct collision 
 with the Ministry and the Lower House, By its provisions, all estates of less 
 than £5000 in value are exempted from taxation, but when that limit is passed 
 a duty is imposed of 25s. per cent, on the capital value of the land. It is an- 
 ticipated that the tax will affect less than a thousand proprietors, but that it 
 will produce £200,000 a year, or one-tenth of the "taxation proper" of the 
 colony. It is stated that "the Bill was primarily designed to prevent the 
 formation of extensive landed estates in the hands of individual proprietors, 
 and to compel those who now hold large estates to break up their holdings." 
 Mr. Lowe's remarks, in his article on " A New Reform Bill " (Fortnightly 
 Review, Oct. 1877) on the connection between democracy and the impdt pro- 
 gressif theory; as illustrated by the proposed legislation in Victoria, are worth 
 comparing. 
 
72 
 
 moral duties which his position involves ; and tliere can be 
 little doubt that one of the surest incentives to enterprise 
 lies in the consciousness that the man who has made the 
 most of his opportunities is free not only himself to enjoy 
 the benefit of the wealth ho has accumulated but to dispose 
 of it, on his decease, at his absolute discretion. It cannot 
 be said that legislative interference with the rights of indi- 
 vidual owners is in all cases unjustifiable ; but we may at 
 least contend that it always requires justification. Other 
 circumstances may occur of such paramount importance as 
 to override the considerations adduced above ; but the ex- 
 istence of such circumstances must be abundantly demon- 
 strated, ere a case for the curtailment of the "rights of 
 property " can be adequately made out. 
 
 The States of ancient Greece appear to have in many 
 cases followed a policy in one respect in harmony, in another 
 entirely inconsistent, with the views of many modern econo- 
 mists. They objected to any of their citizens acquiring 
 property in land to an extent greatly in excess of that 
 enjoyed by their fellows ; and an equalisation of lots was a 
 favourite scheme of legislators and philosophers. On the 
 other hand, they did not regard with favour the extension 
 of facilities for the transfer of landed prpperty, and en- 
 deavoured as much as possible to retain in the occupation of 
 the descendants the soil which the ancestors had tilled. 
 The absence of such efforts at Sparta, and the consequent 
 concentration of wealth in the hands of a constantly dimin- 
 ishing number, was pointed out by Aristotle as one of the 
 gravest defects in the constitution of that state.* Such a 
 social condition could not indeed fail to produce disastrous 
 consequences under a system like that of Sparta, where 
 citizenship entirely depended on a property qualification, 
 and where the only form of property which an exclusively 
 military and agricultural people, who considered all 
 industry as servile and degrading, could possibly possess 
 
 * fisra ya( ra m pvi9i]iTa Toir wrp; T>i» awjxctXiay T?r ><-ri<Ttus 
 \iririi/,riiTcnv at ris' Torj (ji,l» yap airuv myiSi^YiM xExTijafla/ woX^i» X/av 
 ivirUv, ri>7c Se vaui.'sxv fjuMat' oioVef lis o\iymis ?X£» ii y(u(a, — Xv. Pol. ii. 9. 
 
 b 
 
73 
 
 consisted of proprietary rights in the soil. Laws, moreover, 
 encouraging population by giving special exemptions from 
 public service to the fathers of numerous families directly 
 contributed to increase the pressure of the people on the 
 land at a time when there were no facilities for emigrating 
 or for colonization on a large scale. It may now be con- 
 sidered as proved, by Mr. Grote's most exhaustive argument, 
 that the supposed Lycurgean partition of the soil, so long- 
 assumed on the authority of Plutarch, had no existence in 
 fact ; that inequality of distribution had always been more 
 or less characteristic of the tenure of property in Sparta ; 
 and that under the peculiar conditions of that State it in 
 the end produced disastrous consequences, of which the most 
 serious was a steady diminution in the number of properly 
 qualified citizens. The circumstance that Aristotle mentions 
 Phaleas of Chalcedon* as the earliest author of an agrarian 
 law of which the object was the equalisation of property 
 furnishes another indirect argument against any such legis- 
 lation having been attempted by Lycurgus. The difficulty 
 of course lay in maintaining such equality as a permanent 
 condition ; and some, the philosopher tells us, attempted to 
 do so by regulating the number of children, others by limit- 
 ing the indefinite extension of individual property, others by 
 forbidding the sale of inherited estates. In point of fact, in 
 order to preserve in its original strictness the main features 
 of the scheme of Phaleas it would probably have been neces- 
 sary to resort to all these measures ; and the only other 
 method of carrying out his intention would have been to 
 introduce a law of primogeniture — which, it is rather curious 
 to observe, seems never to have suggested itself to the legis- 
 lators of ancient Greecef — accompanied by a system of strict 
 perpetuities forbidding alienation under any circumstances. 
 Such a law, in a land where other forms of wealth were un- 
 known, would have gone far, especially if accompanied by 
 restrictions on over-population, to preserve the original lots 
 
 ^ Ar. Pol. II. 7. 
 
 t The trifling privileges spoken of by Demosthenes in the speech for Phormio, 
 above referred to, as irpia^iia, and others mentioned in the same place, are 
 scarcely sufficient to qualify this statement. 
 
74 
 
 according to the distribution of the legislator ; but it would 
 have inevitably brought innumerable diiSculties and griev- 
 ances in its train ; and entirely as the Greek citizen was 
 considered to live not for himself but for the state, com- 
 pletely as the good of the individual was subordinated to 
 the common weal, - such violent interference with the 
 rights and liberties' of the members of the community ap- 
 pears to have been always regarded as practically out of the 
 question. Plato, in his Laius, recognises the existence of a 
 certain amount of inequality as inevitable, but proposes that 
 no citizen should be allowed to own more than five times as 
 much property as his fellows. In another part of his 
 political treatise, Aristotle mentions other schemes which 
 had come under his knowledge and observation. That form 
 of popular government which he viewed with most favour 
 — the '' agricultural democracy " — required, he thought, as a 
 condition of stability that no one should be allowed to hold 
 more than a certain quantity of land. A law of Oxylus, an 
 Elean legislator, which forbade the citizen to encumber 
 more than a prescribed proportion of his land with mortgage 
 debts appears to have powerfully aided in perpetuating 
 ancestral estates in the same family ;* while the Aphytean 
 lawgiver, by assessing taxation on a small portion only of 
 the property of each citizen, enabled all to satisfy the 
 qualification for political privileges, f The foregoing 
 illustrations shew that the general policy of the Greek 
 legislator, while opposed to large estates, was equally un- 
 favourable to alienation; and this principle, in its origin 
 partly to be explained by that connection between the 
 family land and the family religion which has been ad- 
 verted to above, owed its justification, at a later period, to 
 the intimate relation which in Greece subsisted between 
 political and proprietary rights. 
 
 At Eome, the ancient equivalent of representation — the 
 right of exercising the suffrage of a burgess in the as- 
 
 * Ar. Pol. VII. (Vulg. VI.) 4. 
 
 f Ibid, rt^uvrat yap ovk oAaf ras x.rn<ms^ aKKa. aqLTa, Tyi\t)t.aZTX (xoota 
 
semblies of the people — depencled, if not on taxation, at 
 lea.st on that liability to contribute to state purposes which 
 enrolment on the census implied ; and the famous Agrarian 
 Laws of the republic were doubtless closely connected with 
 this object. It has sometimes been stated that their purpose 
 was to restrict the amount of land tenable by a single 
 owner ; but it may well be doubted whether they ever so 
 far interfered with individual rights, and were not rather 
 confined to regulating the conditions on which the Patricians 
 might occupy or possess the public or domainial land. Their 
 main intention was doubtless to encourage and protect the 
 agricultural class which was justly recognised as the sinews 
 of the state ; the reasons for their ultimate failure have been 
 admirably elucidated by Dr. Mommson ;* and one of the 
 principal causes doubtless lay in the circumstance that no 
 legislation succeeded in effectually checking the accumula- 
 tion of enormous estates, worked exclusively by slaves, in 
 the hands of a few proprietors. The existence of such 
 estates, coupled with the injudicious system of importing 
 corn and freely distributing it among the ever more numer- 
 ous mob of the metropolis — the fruges consumere nati — who 
 gradually superseded the whole class of burgesses and ob- 
 tained the exclusive control of the comitia, in the end 
 caused the class of small farmers completely to disappear 
 and, as Pliny tells us, ruined the agricultural system first of 
 Italy and ultimately of the provinces as well.f 
 
 The enactments of almost all European states haVe been 
 in modern times distinctly unfavourable to the existence of 
 large estates, and in many of the countries which have 
 borrowed the principles of the Code NcqooUon as their 
 guide in regulating the tenure of landed property it has 
 become practically impossible to maintain them undivided 
 for any length of time. In England, on the contrary, they 
 have been allowed and even favourably regarded by the 
 
 * History of Rome : See especially Vol. II. Book III. c. 12 : " The manage- 
 ment of land and of capital " (pp. 885-418) and Vol. III. Ek. IV. c 11 : " The 
 commonwealth and its economy " (esp. pp. 427, 428). 
 
 t Latifitndia perdidere Italiam, iam vero et provincias. Nat. Hist, xviii. 
 6,35. 
 
76 
 
 law ; the lawyers have seconded with their highest skill and 
 ingenuity the eiforts of landowners to perpetuate them in 
 the hands of their descendants ; and the principles on which 
 intestate succession to real property is determined have 
 exercised a certain direct influence by their operation and 
 produced a still greater indirect eifect by the example they 
 supply. Many writers have in recent times advocated the 
 adoption in our own country of some system having for its 
 object that equalization of property which the legislators of 
 Greece and Rome with more or less earnestness, but in- 
 variably with small success, endeavoured to establish, and 
 which the succession laws of modern times have in other 
 lands in great measure succeeded in effecting. The right 
 of the State to control, direct, or modify the method in which 
 land is owned and occupied by its subjects has already been 
 shewn to be one which may be legitimately asserted. I 
 have also endeavoured to shew that it is one of those latent 
 rights of which only extreme and urgent necessity justifies 
 the exercise ; and it remains to inquire whether the present 
 conditions of tenure in England are such as imperatively to 
 demand the interference of the legislature, or whether they 
 are not on the contrary of such a character that any ameli- 
 oration which might be thus effected would be more than 
 counterbalanced by the pernicious feeling of insecurity which 
 such interposition must inevitably create. 
 
 It has not hitherto been an easy task to discover the pre- 
 cise number of landed proprietors in England; but it is 
 generally admitted to be small in comparison with the 
 number occupying a similar extent of soil in other European 
 countries ; while if we contrast the state of affairs in our 
 own country with that prevailing among our immediate 
 neighbours across the Channel the difference is certainly of a 
 most striking kind. In France the principle of subdivision 
 has probably been carried to a further extent than in am- 
 other country: in England, " the Herculaneum," aa it has been 
 called, " of Feudalism," the opposite principle still maintains 
 its influence undiminished. Mr. McCulloch, writing thirty 
 years ago, shewed that there were good grounds for inferring 
 
77 
 
 from various statistics which lie quotes that the number of 
 proprietors of land in France was at that time between four 
 millions and four millions and a half ; from which it ap- 
 peared that since the whole population, including women 
 and children, amounted in 1846 to rather more than thirty- 
 five millions, nearly two-thirds of the entire number fell 
 under the category of landed proprietors.* Mr. Cliffe Leslie, 
 writing only seven years ago,"f" mentions that the latest 
 French official statistics reckoned nearly eight million pro- 
 prietors, of whom, according to a calculation of M. de 
 Lavergne, not less than five millions were rural proprietors, 
 and nearly four millions small proprietors who cultivated 
 their land themselves without hired labour. | Three million 
 French proprietors, according to M. Lavergne,§ possessed on 
 the average only a single hectare — less than tAvo acres and a 
 half — apiece, while the average extent of the properties of the 
 remaining two millions did not exceed six hectares, or about 
 fourteen acres each. || 
 
 When we turn to England, the picture which presents 
 itself is certainly of a very different kind. Until more 
 accurate information was quite recently procured, it used to 
 be frequently stated that there were in England only 30,000 
 landowners. This assertion, which rests on the circumstance 
 that in the Occupation Returns of the last census but one 
 only 30,766 persons described themselves as " landed pro- 
 prietors," is in itself so palpably absurd as scarcely to require 
 refutation. A sufiicient disproof of its correctness may how- 
 ever be ffathered from the circumstance that above half of 
 these thirty thousand persons belonged to the feminine sex ; 
 a fact which an ingenious writer has explained by the sug- 
 
 * That is, estimating the families at an average of five persons each — perhaps 
 rather too high an average for France. 
 
 t Systems of Land Tenure in Various Countries, pp. 336, 337. 
 
 J The exact number of those cultivating the land de lew mains was, accord- 
 ing to the official returns of 1851, 3,740,793. It must have considerably in- 
 creased since that date. 
 
 § Economic Eurale de la France. 
 
 II Similarly in Prussia, with a population of about 24,000,000 the number of 
 proprietors — including apparently urban with rural, which I have not done in 
 the case of France — was estimated in 1871 at no less than five millions. 
 
78 
 
 gestion that women owning land feel a pride " in recording 
 their ownership ; whereas thousands of male landowners re- 
 turned themselves as peers, members of Parliament, bankers, 
 merchants or private gentlemen. At all events," he justly 
 continues, " the mere existence of so. palpable a flaw in the 
 return utterly destroys its value for the purposes of statistical 
 argument."* Particular instructions to obtain precise infor- 
 mation on this matter were issued to the officers charged with 
 superintending the census returns of 1871 ; but better and 
 more trustworthy statistics than could possibly be obtained by 
 means of the census are embodied in a Parliamentary re- 
 turn, enumerating the proprietors of land in England and 
 Wales, together with the amount owned by each proprietor, 
 which was moved for by Lord Derby in February, 1872. 
 Lord Derby dwelt upon the outcry frequently raised against 
 the monopoly of land, and added that he believed it to have 
 been in part produced by the erroneous impression to which 
 the census of 1861 gave rise.^f- He himself considered that 
 the number of landed proprietors in the United Kingdom 
 was nearer to 300,000 than 30,000. Mr. Brodrick, writing in 
 the previous year, had come to the conclusion that the num- 
 ber in England and Wales alone greatly exceeded 100,000, and 
 might well amount to 200,000. The motion, which was sup- 
 ported by the Duke of Richmond and Lord Salisbury, was 
 acceded to, on the part of the government, by Lord Halifax, 
 and the return was duly prepared by the Local Government 
 Board, on the basis of the valuation lists made out for the 
 purposes of rating in every parish. The result, after con- 
 siderable delay, inevitable owing to the incompleteness of 
 the information in many cases procurable and the thorough- 
 ness with which the work was done, was published in 1875, 
 and substantially confirmed the conjecture of Lord Derby. 
 " The New Domesday Book,'' as it has been popularly called, 
 elicited to a great extent that public attention and interest 
 
 * Brodrick, Hon. G. C, Cobden Club Essays, second series, p. 74. 
 
 + Thus, according to the census of 1861, the number of proprietors in Hert- 
 fordshire was only 245. The Marquis of Salisbury determined to test this 
 surprising statement for himself, and found that according to the rate-book the 
 number at the time amounted to 8833 ! 
 
79 
 
 which its intrinsic importance deserved. The names of 
 OAvners were divided into those who held at least one acre, 
 and those who held portions of land — frequently occupied 
 for building purposes — of less extent ; and it appeared that 
 the number of proprietors falling under the first of these 
 two categories, in England and Wales alone, amounted to 
 209,547. This statement however must be regarded as only 
 approximately correct. In the first place the metropolitan 
 district was expressly excluded from the return ; secondly, 
 it is to be observed that holders of leases for a period exceed- 
 ing 99 years, or with a right of perpetual renewal, were 
 considered as owners, although their interest in the land, in 
 the eye of the law, is of a merely personal kind. Lastly, in 
 cases where an owner held property in more than one 
 county, it was an inevitable consequence of the method by 
 which the statistics were procured that his name should 
 appear twice over ; and it is estimated from an examination 
 of a certain proportion of names that a deduction of about 
 6000 from the total given should for this reason be effected 
 in order to arrive at the net number of proprietors of one 
 acre or more of land. On the whole it may fairly be 
 assumed, as a result of this return, that there are in England 
 and Wales at the present time as nearly as possible 250,000 
 proprietors of freehold estates not less than one acre in 
 extent. 
 
 The entire number of owners of less than an acre of land 
 — many of them doubtless merely tenants for terms, and 
 none of them with any claim to be practically considered as 
 rural proprietors — was slightly over 700,000. The return 
 unfortunately does not contain any tabular statement of the 
 proportion of acreage and rental held by these two classes 
 respectively. A glance at the returns for the individual 
 counties is however sufiicient to shew that while the gross 
 rental of the second class is considerable — often amounting 
 to a half or a third and perhaps averaging a quarter of that 
 enjoyed by the first class — the acreage which it holds is 
 altogether insignificant ; a circumstance which contributes 
 to prove that land held in quantities of less than an acre in 
 
80 
 
 the main i,s held for building or industrial rather than for 
 agricultural purposes.* 
 
 Leaving then out of the question, as not really belonging 
 to the category of rural proprietors, the owners of land less 
 than an acre in extent, we find that the proprietary class in 
 England, so far from being reckoned by millions as in 
 France and Prussia, is composed of about a quarter of 
 a million persons. The industry of statisticians however 
 has placed us in a position to estimate with greater exacti- 
 tude than these figures of themselves could furnish the pro- 
 portion of land held by really large proprietors to the total 
 acreage of the country. It appears from a computation 
 made by a writer in the Spectatoi'^ that the number of 
 owners of freehold property in England and Wales exceed- 
 ing one hundred acres in extent is only 42,469 ; a figure 
 which goes far to explain the readiness with which the 
 erroneous computation contained in the census of 1861 was 
 generally accepted as correct. We learn, moreover, from a 
 later article in the same journal, that no more than 710 
 individuals owned between them " within a fraction of a 
 fourth of the entire geographical area of England and 
 Wales," and enjoyed, either immediately or in reversion, 
 about one-seventh of the entire rental of the kingdom, a 
 proportion which would, it is thought, have been consider- 
 
 * Thus iu Bedfordshire, Class A (m number 2382) held 285,000 acres with 
 a gross estimated rental exceeding £580,000, or rather more than £2 per acre. 
 Claas B (in no. 5302) held only 821 acres, but with a rental of £134,000 or 
 more than £160 an acre. In Devon, Class A (10,162) held 1,500,000 acres at 
 an average rental of as exactly as possible £1 10s. per acre ; while Claas 
 B (21,647) held 3000 acres at an average rental of £200 per acre. In 
 Gloucester, Class A (8425) held 720,000 acres at an average rental of rather 
 more than £2 an acre ; while Class B (29,280) held 6000 acres at an average 
 rental of about £160 per acre (the result being the same with both classes as iu 
 Bedfordshire). In Hereford, Class A (4646) held 500,000 acres at an .average 
 rental of rather more than £1 10s. ; Class B (9035) held 1300 acres at an average 
 rental of £88 per acre ; lastly, in Lancashire Class A (12,558) held 930,000 
 acres at an average rental of nearly £8 per acre : Class B (76,177) held 15,000 
 acres at an average rental of about £430 per acre. It is remarkable that in 
 Kent, notwithstanding the operation of the rule of gavelkind, the proportion, 
 in number of proprietors, extent and value of acreage, between the two classes 
 is much the same as in other counties. 
 
 t Spect. Feb. 12, 1876. "The New Domesday Book." 
 
81 
 
 ably increased had the metropolitan distriet been included 
 in the return.* 
 
 Lastly, according to a statement published in a recent 
 number of the Financial Reformer, and referred to by Mr. 
 Bright in a speech delivered at Rochdale last November, the 
 number of owners of ten thousand acres and upwards in the 
 United Kingdom is at present 955 ; and these gentlemen 
 possess between them as nearly as possible 30,000,000f 
 acres, or considerably more than one third of the entire com- 
 puted acreage of Great Britain and Ireland. It would cer- 
 tainly be difficult to over-estimate the significance of these 
 statistics ; and when it is added that, according to the best 
 obtainable information, at least seventy per cent, of the 
 estates in this country are held under settlement, it will 
 easily be seen that the difference is to be explained by the 
 long continued prevalence amongst ourselves of the practice 
 of entailing and the custom of primogeniture. The next 
 point, as it would seem, which remains for consideration is 
 the question whether the operation of this custom is so per- 
 nicious in its effects on the system of land tenure, and so 
 injurious in its economical, social or political aspects — or in 
 all these combined — as to imperatively require the inter- 
 ference of the legislature in the shape of a new land law. 
 
 Without reference to the teaching of experience, it does 
 not seem from an d priori point of view that the state of 
 things which confessedly exists in England — the concentra- 
 tion of rural property in the hands of comparatively few 
 proprietors — is necessarily such as the economist must 
 regard with disfavour, or more injurious than the inevitable 
 ultimate consequences of any alternative system which the 
 ingenuity of legislators could devise. One fatal objection 
 to the existing system, already pointed out, of course does 
 not exist in England; political privileges are not in the 
 slightest degree associated with the ownership of land ; and 
 the occupier of the meanest tenement in a borough, or of 
 
 * Ibid, March 4, 1876. 
 
 + See a letter correcting a mistake in the figures from the Assistant Secretary 
 to the Financial Reform Association in the Times Nov. 15 1877. The exact 
 figure is 29,745,402. 
 
 G 
 
R2 
 
 half a dozen acres of soil in a rural district, has as much 
 right to his representative in Parliament, and the same 
 share in his return, as the owner of half a county. Putting 
 this aside, there appear to he many reasons for considering 
 the circumstance that land is a commodity mainly held in 
 large quantities by men of wealth — often Ijy men who 
 would he richer if they possessed no land at all — as 
 favourable to the utmost possible production and the 
 highest development of the riches of the soil. The 
 capitalist who owns land is able to introduce improvementB, 
 to venture on experiments and await his reward in the 
 course of years to come ; the petty occupier is obliged to 
 grow what is immediately remunerative, and cannot afford 
 to look beyond the necessities of the moment to the possi- 
 bilities of the future. Thase conclusions certainly seem to 
 be justified by facts, so far as they can be verified, and by 
 figures, so far as they can be regarded as trustworthy. 
 Let us compare for a moment the relative productiveness of 
 the land in England and France. The soil of England is 
 not on the whole better, or certainly not much better, suited 
 to the growth of wheat than that of France. Yet Mr. 
 McCulloch, writing nearly a generation ago, shews that the 
 average crop of wheat per acre in England exceeded thirty 
 and probably amounted to thirty-two bushels ; while that of 
 France did not in a good average year exceed fourteen bushels. 
 One acre in England, it thus appears, }-ielded considerably 
 more produce than two acres in France ; and the conclusion 
 irresistibly suggests itself that the difference must be chiefly 
 explained by the adoption in this country of a better system 
 of cultivation. If other kinds of grain, or wool, or beef, were 
 taken as our standard, the result would have been still more 
 decisively in our favour ; and Mr. McCulloch fui-ther states 
 that one man and one horse in England produced inore 
 grain and other agricultural produce than three men and a 
 similar number of horses in France.* The same writer 
 estimates two-thirds of the entire population of France to 
 have been in 1847 engaged in agriculture, whence he infers 
 
 * Treatise on the Law.s of Succession, &c., p. 117. 
 
83 
 
 that two agriculturists supplied food for three persons, or 
 for one beside themselves ; while putting down the 
 agricultural class in England as one-third of the population, 
 it appears that with us two agriculturists supply food for 
 no less than four persons besides themselves * A table 
 furnished by our representative in Prussia, Mr. Harris 
 Gastrell, to the " Reports on Land Tenure " of Her Majesty's 
 Representatives abroad,"f- published some seven years ago, 
 while slightly altering these statistics — in particular, 
 considerably reducing the proportion to the whole popu- 
 lation borne by those engaged in agriculture in both 
 countries, but especially in England, — fully corroborates 
 Mr. MeCuUoch's view, and shews that while in England the 
 percentage of persons engaged in agriculture is less than 
 half the percentage of those similarly employed in any other 
 coimtry (excepting Holland) in Europe the average return 
 of corn is more than double that obtained elsewhere, with 
 the same exception in favour of Holland. J With regard to 
 the tendency of occupiers, where the land is much sub- 
 divided, only to grow such crops as are immediately 
 remunerative, it is instructive to observe how completely 
 the Irish peasantry, where they have enjoyed a sort of 
 customary tenant-right and a liberty of sub-letting and 
 partitioning to an almost unlimited extent, have neglected 
 all other cultivation for that of the potato ; a similar 
 phenomenon has been observed in France,§ in parts of 
 
 * Ibid, pp. 120, 121. 
 
 + Report on Land Tenure in Prussia, Land Tenure Reports, Vol. I., p. 221. 
 
 
 4 
 
 
 
 fi 
 
 . 
 
 eS 
 
 
 tJ 
 
 -d a 
 
 
 3 
 
 'c3 
 
 a 
 
 ■I 
 
 1 
 
 ■jj 
 
 a 
 
 1 
 
 '3 Sj 
 
 
 rt 
 
 1 — 1 
 
 fe 
 
 'd 
 
 PL, 
 
 < 
 
 CO 
 
 W 
 
 ^a 
 
 Percentage of agricultural 
 
 
 
 
 
 
 
 
 
 
 to total population 
 
 85'90 
 
 77 
 
 51 
 
 51 
 
 45 
 
 25 
 
 25 
 
 16 
 
 12 
 
 Average return of corn per 
 
 
 
 
 
 
 
 
 
 
 hectare 
 
 16 
 
 16 
 
 14-6 
 
 19'3 
 
 19'8 
 
 16 
 
 16 
 
 23 
 
 40'8 
 
 § It appears from the official returns that the medium produce of the crops 
 of potatoes in France during the seven years ending with 1824, amounted to 
 about 40,517,000 hectolitres ; whereas their average produce amounted, during 
 
 G 2 
 
S4. 
 
 Belgium, and of Rhenish Prussia ; and it is obvious that 
 where such is the case the results of a temporary failure of 
 the crop, produced perhaps by the unsuspected ravages of 
 some destructive insect which defies extirpation, must 
 always be viewed with the most serious apprehension. The 
 proprietor of a couple of acres in Ireland or a single hectare 
 in France, has little more to fall back upon, if his seed does 
 not yield its increase, than the rice-growing ryot of Madras. 
 Numerous other evils resulting from excessive subdivision 
 will readily suggest themselves and have often been pointed 
 out. If the rural proprietor owns less land than a field of 
 normal size^and good farming, steam ploughing, systematic 
 manuring, etc., invariably imply fields of considerable ex- 
 tent — much of the soil will necessarily be wasted in super- 
 fluous hedges, injuring the cultivation in the vicinity, or in 
 an excessive nupiber of fences, the erection and repair of 
 which must cause a heavy drain on the owner's purse. 
 Another cause of waste consists in the large number of occu- 
 pation roads or tracks which such a system requires ; while it 
 is almost needless to say that the best methods of cultivation 
 cannot possibly be employed. Expensive manures and 
 elaborate machinery are out of the small proprietor's reach ; 
 he has neither the intelligence to think of them, the money 
 to pay for them, nor the skilled labour which their employ- 
 ment necessitates. In the matter of machinery, something- 
 it is true may be effected by co-operation ; but not so much 
 as is commonly supposed ; since it will frequently happen 
 that owing to the state of the weather, or the season of the 
 year, the plough or the engine, to the expense of which all 
 contribute, will be required by al^at precisely the same 
 time. It must moreover be remembered that the all-im- 
 portant principle of the division of labour, which political 
 economy so strenuously inculcates, cannot possibly be applied 
 
 the seven years ending with 1835, to 63,951,000 hectolitres ; being an increase 
 in the interval of no less than 57 per cent. But the same returns shew that 
 during the same interval the produce of wheat increased only 15 per cent., 
 being a little more than a fourth part of the increase in the produce of 
 potatoes ; and we are informed that during the ten years ending with 1845, 
 the increase in the produce of potatoes as compared with that of wheat was 
 still greater. — McCuUoch, «« mpra, p. 122. 
 
85 
 
 except in holdings of considerable extent. On a large estate, 
 one man may make a speciality of hedging and ditching, 
 another of ploughing and harrowing, a third of thrashing 
 or manuring, a fourth of superintending the live stock, and 
 so on ; where the acreage is small, the same man must learn 
 as well as he can to do everjH^hing, and will waste a large 
 proportion of his time in attaining a very indifferent degree 
 of aptitude for each branch of agriculture. There is another 
 point which, in estimating the relative advantages of large 
 and small proprietors, certainly should not be left out of 
 sight. I refer to the preservation of timber, which becomes 
 almost impossible when the land is divided into a large 
 number of minute holdings, and which is to a great extent 
 insured in the case of settled land in England by the pro- 
 hibition of waste on the part of a life tenant. That a 
 judicious protection of timber and restrictions on its indis- 
 criminate destruction are indispensable to the prosperity of 
 a country, and not merely to its ornament and beauty, are 
 propositions which scarcely require demonstration ; and the 
 statement that timber is rapidly disappearing in many parts 
 of France, and even in those mountainous districts where it 
 is most urgently needed both for shelter and for the protection 
 of the lower soil, is one which every traveller cg.n verify for 
 himself. It would indeed be absurd to expect the small pro- 
 prietor, when free to act as he pleases without restriction 
 from the law, to appreciate such considerations, and sacrifice 
 the immediate advantages accruing from an abundant supply 
 of fuel, from the sale of such timber as he does not himself 
 require, and fi'om the extension of his cultivable area, to the 
 ultimate well-being of an estate which in the course of a 
 couple of generations will be divided into a dozen fractions.* 
 Our own system of entails does not, it need scarcely be 
 said, present any obstacle to the creation or preservation of 
 small holdings where the condition of the soil renders them 
 
 * I am informed that where a good system of woodcraft is employed it is 
 often more profitable, even directly, to keep land under timber than to convert 
 it into arable or pasture. In many cases where, if so converted, it would not 
 let for more than thirty shillings an acre, the mere sale of superfluous timber 
 and underwood brings in a clear forty shillings. This of course can onlv be 
 realized where the wood is of considerable extent. 
 
& 
 
 8G 
 
 desirable ; on the other hand, it seems certain that the sum- 
 mary abolition of such a system and the substitution for it 
 of a law of compulsory partition— which must inevitably be 
 applied equally to all estates, the smallest as well as the 
 greatest — -would in the end render the existence of any but 
 small holdings impossible. It may be worth while, though 
 the point is one rather of historical and political than of 
 economical interest, to briefly point out the circumstances 
 under which the system of niorcdleinent, introduced by 
 France and to a great extent copied by most of the leading 
 States in Europe first arose in the former country. 
 
 The Code Napoldon, and the law of succession which it 
 introduced, was one of the results — from one point of view 
 perhaps the most important result — of the Revolution which 
 preceded it. The land-law which it contains was indeed 
 first enacted in 1791. It has been well pointed out that 
 this law was not in the main dictated by any considerations 
 of public interest or economical expediency, but by the de- 
 termination of the people to finally crush the power of the 
 nobility and avenge themselves for all the oppression which 
 during so many generations they had suffered at their 
 hands. In attaining this object, narrow as it was, the revo- 
 lutionary legislators were completely successful. The an- 
 cestral nobility, as a social force, ceased to exist ; and it 
 cannot be denied that the noblesse, as an institution, amply 
 deserved its doom. The contrast between the gradual and 
 pacific manner in which the obnoxious characteristics of 
 feudalism were removed in England, and the violent and 
 summary fashion in which they were swept oflf the face of 
 the land in France, and the causes which produced so strik- 
 ing a difference, form the subject of a most valuable and 
 suggestive essay recently published liy Sir Henry Maine.* 
 The French nobility at the end of the last century had lost 
 all their political pu'wer ; but it unfortunately happened that 
 they had retained all their private piivileges, and had not 
 abated in the slightest degree their proprietary pretensions. 
 France was no longer governed by the King and Parliaments 
 
 * FoHnlijhthj Rcvkiv, Api-il 1, 1S77. The Decay of Feudal Property in 
 France and England. 
 
87 
 
 but by the King alono ; but all the opprcsaivo rights of 
 feudalism — of -which the last vestige had disappeared from 
 England on the Kestoration — were still claimed and exercised 
 by the class of hereditary nobles. This divorce of private 
 rights from public responsibility has happily never been 
 witnessed in our country ; it is indeed no exaggeration to 
 describe their combination as the real keystone of our landed 
 system, and the best security for its preservation. But 
 before the French revolution, the nobles were regarded by 
 the class of peasant proprietors as mere frvjjea cunsumere 
 nati ; and the latter were in much the same condition, as 
 Sir Henry Maine observes, as that which an English copy- 
 holder might theoretically occupy, in a manor where all the 
 most vexatious characteristics of that system of tenure were 
 not merely nominally united, but in practice rigorously en- 
 forced. The corve'es, or compulsory service of the peasantry 
 on every possible pretext, the iniquitous and irritating bur- 
 dens of such rights as the droit de colombier and droit do 
 f/uarenne, bear a strong resemblance to the most objection- 
 able privileges ever claimed by the lord of a copyhold 
 manor ; while the monopoly of grinding corn can only be 
 paralleled by the oppressive regulations, with the same object, 
 which Tacitus describes the Roman provincial authorities as 
 having devised in Spain. It was against oppression of this 
 kind that the peasants at length rose eoi masse and ensured the 
 success of the Revolution. In the year 1789 there occurred 
 those outbreaks of incendiary violence which are sometimes 
 spoken of as " the burning of the chateaux." It is remark- 
 able that in almost every case their first proceeding on 
 attacking the mansion of a noble was to proceed to the 
 muniment-room and destroy the title deeds, on which these 
 pretensions were invariably based; a practice which con- 
 tinued until the promulgation of the new land-law rendered 
 their revival impossible.* It was under circumstances such 
 
 * The title deeda of the lord had become of the greatest importance, and the 
 advantage which the tenants gained hy their destruction is obvious enough. At 
 a later date it lost its value in the eyes of the peasantry, because more drastic 
 remedies for their grievances had then been devised. The legislation of the 
 Constituent Assembly swept away the greatest part of the feudal dues and 
 
88 
 
 as these, and not through any considerations of State policy, 
 that the custom of primogeniture was abolished in France, 
 and a law of equal succession established in its place. Other 
 countries through various causes were led to follow the 
 example of France, and at the present day the system of 
 legitime — limiting the property of which an owner can 
 dispose at his pleasure, if he have Kneal descendants, and 
 usually also if he have lineal ancestors, to from one-third to 
 one-half of his whole estate, and establishing the principle 
 of compulsory and equal succession by the lineal repre- 
 sentatives to the remaining portion — subsists, among other 
 European countries, in Austria, Bavaria, Belgium, Denmark, 
 France, Germany, Holland, Italy, Norway, Portugal and 
 Spain. In many of these countries all entails have been 
 abolished ; in others those existing on the change in the 
 land-laws were respected but their future creation strictly 
 prohibited.* 
 
 It is somewhat curious to observe that the French suc- 
 cession law — the adoption of which has often been advocated 
 as a panacea for the evils of entail — has itself produced 
 almost all the disadvantages inherent in a sj^stem of 
 perpetual entails. Not the eldest son only, but all the sons, 
 are to a great extent independent of the parental authority, 
 since they know that parental displeasure cannot affect 
 their pecuniary expectations ; while the owner of an estate 
 which he cannot dispose of at will, and which he knows 
 must on his death be necessarily broken up, is deprived of 
 the most powerful incentives to enterprise and accumulation, 
 and can feel but little disposition to effect any improvements 
 of which he is not certain to reap the benefit in person. 
 
 provided compensation for only a part of them. The Legislative or Second 
 Assembly abolished the residue and withdrew the compensation. The Couven- 
 vention or Third, found almost nothing to destroy, though it was passionately 
 ■ eager to fasten on a hated institution, and though the Revolutionary lawyei-s, 
 who abounded in it, were the real authors of the legislative provisions after- 
 wards engrafted on the Code Napoldon, which for ever prevented the revival of 
 feudal ownership in France. — Maine, Fortiiiyhtly Review, vol. 27, p. 403. 
 
 * For full particulars and statistics on these points see a work on " The 
 Succession Laws of Christian Countries with special reference to the law of 
 primogeniture as it exists in England ;'' by Mr. Eyre Lloyd ; London, 1877. 
 
89 
 
 The severe restraints on the testamentary power imposed by 
 the Code Napoleon have in fact, in the -words of Sir Henry 
 Maine, " 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. Feeling 
 and opinion in this country [England] have been profoundedly 
 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 
 throughout Europe two or three centuries ago than are the 
 current opinions of Englishmen."* 
 
 It is almost universally admitted that the practice of 
 morcellenient in France has by this time gone far enough ; 
 but as De Tocqueville explained in forcible and eloquent 
 language, forty years ago, the machinery which a law of 
 succession when once adopted puts into motion is not easily 
 arrested or retarded, but constantly gathers an increased 
 momentum in its progress. " Ce n'est pas sans doute a nous, 
 Fran9ais du xix.° siecle, temoins journaliers des changemens 
 politiques et sociaux que la loi des successions fait naitre, h 
 mettre en doute son pouvoir. Chaque jour, nous la voyons 
 passer et repasser sans cesse sur notre sol, renversant sur son 
 chemin les murs de nos demeures, et detruisant la cloture de 
 nos champs. Mais si la loi des successions a deja beaucoup 
 fait parmi nous, beaucoup lui reste encore a faire. Nos 
 souvenirs, nos opinions et nos habitudes, lui opposent de 
 puissans obstacles.""}" Of the " much which still remained " 
 at the time when these lines were penned for the law 
 of succession to effect, the most part has been accomplished ; 
 and the powerful obstacles which memory, opinions, and 
 habits once presented to its operation, no longer have any 
 substantial existence.:]: Mr. Sackville West, who furnished 
 
 * Ancient Law, pp. 226, 227. 
 
 + De la D^mocratie en Amfoique. Vol. I. pp. 81, 82. 
 
 J " Occasionally, indeed, the few individuals who have not got wholly rid 
 of aristocratical prejudices endeavour, by accumulating monied property, to 
 provide portions for their younger children, so that the land may descend 
 entire to the eldest son. But, except in the case of a few of the greater 
 proprietors, or of those who -Ave manufacturers or traders as well as land- 
 
90 
 
 the Report on Land Tenure in France, in answer to tlic 
 Foreign Office circular of the late government, while not 
 insensible to the advantages, both political and agricultural, 
 of a large class of small proprietors, adds his complete 
 concurrence in M. Lavergne's opinion that onorcellement 
 cannot be carried further without danger, and that " an 
 unlimited partition of the small properties as they already 
 exist would be productive of serious evil." Mr. McCulloch 
 had quoted the official statistics, procured for the assessment 
 of the contribution fonciere, to shew that there were only 
 53,000 properties in France worth upwards of £200 a year; 
 and we gather from Mr. Sackville West's report that at the 
 beginning of the present decade out of seven million and a 
 half proprietors about five million held on an average only 
 six acres each, while only 50,000 averaged COO acres. 
 " With some rare exceptions," ho adds, " all the great 
 properties have been gradually broken up, and even the first 
 and second classes — those averaging 600 and GO acres 
 respectively — are fast merging into the third." In France, 
 a farm of a couple of hundred acres is placed in the class of 
 " large properties " ; and notwithstanding the enormous 
 
 owuers, this is all but impossible ; and the longer the law continues, the 
 weaker will be the principle that prompts to such conduct. Indeed, though 
 ardently sought for by the poorer classes, real is at present held in less 
 estimation by the more opulent jjortion of the community, than personal 
 property. A landowner, without something like an equivalent monied fortune, 
 knows, if he have more than one child, that his estate will, most likely, be sold 
 or subdivided at his death ; and having this knowledge, he regards it merely 
 as a transitory possession, and takes comparatively little interest in its 
 condition. He neither builds a mansion, lays out a park, nor undertakes many 
 of the numerous improvements he might have undertaken had he felt sure his 
 estate would continue entire. His vanity is not flattered, nor his industry 
 stimulated, by the hope of founding or perpetuating a family ; but he must 
 anticipate, even though he have only one son, that his property and his 
 descendants will be ultimately, and at no very remote jieriod, merged in the 
 indistinguishable mass of petty patches and occupiers. Hence, while the law 
 of succession weakens on the one hand the motives to industry, it tends, on the 
 other, to level and obliterate all distinctions of family and wealth. But the 
 evil is, that the equaUty it introduces is not brought about by the exaltation of 
 the poor, but by the depression of the rich. It is hostile to both classes, and 
 nearly in the same degiee." — McCulloch, pp. 8C, 87. These remarks, to a great 
 extent justified by the state of affairs thirty years ago, are fully confirmed by 
 the process which has gone on with incessant rapidity since that date. 
 
91 
 
 subdivision of land, subletting to tenant occupiers is 
 extremely prevalent. The demand for patches of land is so 
 great that an owner of CO to 200 acres finds it far less 
 profitable to farm them all himself than to divide them into 
 small patches, which are let to the highest bidder ; a system 
 Avhich perhaps tends more rapidly than any other to exhaust 
 the soil, and which presents the most insuperable obstacle to 
 agricultural progress and the development of good hus- 
 bandry. According to the statement of M. de Chateauvieux, 
 an agricultui-al and statistical writer Avhom Mr. McGulloch 
 regards as trustworthy, no less than 35,000,000 acres in 
 France — or an extent of land nearly equivalent to the entire 
 acreage of all England and Wales — are farmed on the 
 metayer system ! 
 
 All that can be said for the present condition of property 
 in France and its effect on agriculture has been excellently 
 put by Mr. Cliff e Leslie in his Essay on the French System, 
 written for the volume published by the Cobden Club ;* he 
 is indeed successful in shewing that the price of land in 
 France has greatly risen with the increase of small propei'- 
 ties, that the extent to which such properties are encumbered 
 by debt may have been to some extent exaggerated, and 
 tliat there are several branches of agricultural industry, such 
 as dairy farming, market gardening and the raising of cattle 
 for the market, for which the soil of France is in some 
 districts admirably adapted, and which la ■petite culture has 
 developed to an extent which would have been otherwise 
 impossible. But it is admitted that the proportion of soil 
 utilised for these purposes does not exceed one-fifteenth of the 
 whole if and with regard to the price of land, it is scarcely 
 a healthy economical sigTi that through adventitious causes, 
 and the ruinous competition of small proprietors, it should 
 be abnormally inflated. The fact that land fetches more 
 than it is really worth, and is thus placed out of the reach 
 of all but the wealthy few, is indeed one of the character- 
 istics of the English conditions of tenure which is most often 
 
 ♦ The Laud System of France : by J. E. Cliffe Leslie. Systems of Land 
 Tenure, pp. 335-367. 
 + Ibid : p. 342. 
 
92 
 
 and most vehemently, but very inconsistently, attacked by 
 the panegyrists of the French system. It may be added 
 that the keen demand for small plots of ground tends at 
 once to artificially increase the price of land and to 
 accelerate the progress of morcellement. Gamier, the 
 French translator of the Wealth of Nations, states that a 
 farm of which the rental would be about £200 a year, if 
 sold as a whole will not fetch more than twenty-five years 
 purchase ; but if sold in small lots it will obtain something 
 like forty years purchase. It naturally follows that estates 
 of any size when brought into the market are almost in- 
 variably subdivided into small patches before being offered 
 for sale.* 
 
 Enough has been said to shew that the evil consequences 
 which in the course of little more than two generations have 
 been produced by the French system are such as to call 
 virgently for a remedy. Such a remedy, as it would seem, 
 could be found only in the abolition of the law of com- 
 pulsory partition ; and this is a step which while the state of 
 feeling in France continues as at present cannot possibly 
 be expected and which, it is greatly to be feared, if ever 
 adopted will come too late to arrest the mischievous conse- 
 quences of the existing law. Further proof of the view 
 which I have felt obliged to take will be found, if required, in 
 Mr. McCulloch's admirable treatise on the Laws of Succession. 
 It may however be worth while, before leaving this portion 
 of the subject, to point out how little the expectations of 
 those who defended the French law from a theoretical point 
 of view before time had given an opportunity of estimating 
 its practical consequences have been realised in fact. 
 
 Mr. John Austin, writing in 1824 in the Westminster 
 Revieiu, expressed himself as not in principle in favour of the 
 French law of compulsory division, on the somewhat singular 
 ground that its ultimate tendency was to produce not equality, 
 but inequality in property ."f" He advocated a free liberty of 
 
 ' JRicliesae des Nations, VI. 179, ed. 1822 ; quoted by McCuUooli. 
 
 t Mr. Auatin expresses an opinion that the free power of testamentary dis- 
 position tends in the end more certainly to the estabUshment of approximate 
 equality than any restraints placed on that power with a view to such end ; 
 p. 504. This opinion does not "=^0^ fn l-io -inafiflpr? i^v pvnpn'pTipp 
 
93 
 
 testamentary bequest, coupled with an entire prohibition of 
 substitutions or entails ; but he at the same time took occa- 
 sion to deny that the natural consequences of the law of 
 succession are such as Mr. McCulloch, in an article published 
 in the Edinburgh Revieiu during the same year, had predicted, 
 and as the latter writer was able afterwards to shew, in his 
 later and more elaborate treatise, had been actually realised 
 by contemporary experience. The grounds of Mr. Austin's 
 dissent are certainly singular, and would seem to have 
 originated in his profound belief in the influence over the 
 common actions of ordinary mankind of those philosophical 
 principles of utility to which he was so warmly attached, 
 and of which he lost no opportunity to propound and incul- 
 cate the general applicability. Mr. Austin, after intimating 
 his agreement with the opinion that large holdings augment 
 the productiveness of agricultural labour and capital, and 
 adding some very striking and valuable arguments in sup- 
 port of that opinion,* proceeds to deny that the existence of 
 a law of compulsory partition necessarily or even probably 
 involves an excessive subdivision of landed properties. How 
 does he arrive at this startling conclusion ? He shews that 
 on the children acquiring, on their father's decease, the 
 paternal estate in equal shares, it lies in their power either 
 to divide it into separate portions, to retain it imdivided 
 and carry on its management in partnership, to lease 
 the whole farm to one of the brothers or to a stranger 
 to sell it to a stranger, and divide the proceeds, or 
 lastly to sell it to one among themselves, the latter, 
 if not prepared with the purchase money, giving his 
 co-heirs a mortgage on the estate. The reviewer then pro- 
 ceeds to shew, or to attempt to shew, that any one of the 
 latter courses would be in the view of economical science 
 more expedient than that first mentioned ; and immediately 
 concludes from this circumstance that the course of equal 
 partition will be in practice rarely if ever adopted. " To 
 determine what they would do," he says, " let us ascertain 
 what it would be their interest to do. If they would not 
 
 * See Westminster Review, Oct. 1824, pp. 514-516. 
 
94 
 
 probably do what it would be their interest to do, it follows 
 that human conduct can never be anticipated, and the 
 proud structure of economical science falls at once to the 
 grotxnd." 
 
 This general proposition may be said to partake of the 
 nature at once of a sophism and of a truism. If it be merely 
 meant that the actions of the average individual are usually 
 dictated by what he himself conceives to be his interest — 
 and if we include in the expression " interest " the idea of 
 duty, an idea which, whether mistaken or not, certainly 
 exercises no inconsiderable influence on the actions of a large 
 proportion of mankind — there can be no hesitation in accept- 
 ing Mr. Austin's axiom. If, however, he means that the 
 ideas of his interest, and the notions of what is expedient, 
 entertained by an uninstructed peasant are invariably, or 
 even usually, identical with those of the politician, the philo- 
 sopher or the political economist, the proposition is one of 
 which the mere statement is sufficient to demonstrate the 
 absurdity. The peasant proprietor is influenced by a 
 thousand considerations, by attachment to the soil on which 
 he has always lived, by family ties and long established 
 friendships, by ignorance of the world, by absence of educa- 
 tion and unfamiliarity with any other pursuit than that of 
 agriculture, above all by what may be best described as a 
 vis inertice which operates with him more powerfully than 
 with any other class, circumstances all of which taken 
 together have more than sufficient weight to prevail over any 
 ultimate balance of pecuniary interest which is all that the 
 economist can regard. Political economy, as has been well 
 remarked, is a science of abstraction ; and the process which 
 it involves often by its operation casts aside facts and data 
 which cannot be neglected without gravely diminishing the 
 value of the solutions which that science supplies of the 
 curious problems to which it is applied. It may be all very 
 well to take utility as the ultimate standard of the philoso- 
 pher, but the assumption that ordinary people habitually 
 act up to a philosopher's view of what is useful is almost 
 gi-otesquely incongruous with the teaching of experience. It 
 
95 
 
 would certainly have been far more satisfactory if Mr. Austin, 
 instead of founding an elaborate argument as to the probable 
 conduct of the small rural proprietor on what, in the \\Titer's 
 opinion, was the interest of the latter, had turned his atten- 
 tion to what as a matter of fact was the, habitual conduct of 
 that cla.ss ; and had he pursued such an inquiry with im- 
 partiality and care, we can scarcely doubt that he would 
 have found that his a priori theories required considerable 
 modification in order to adjust them to the teaching of 
 actual facts. As an instance of the curious results to which 
 Mr. Austin's method led him, it may be mentioned that he 
 arrived at the conclusion that owing to the increase of 
 wealth and accumulation of capital in France, small farms 
 would in time be to a great extent superseded by larger 
 occupations.* As a matter of fact, enough has been said 
 above to show that the reverse process has been going on 
 with progressive rapidity ever since the day when Austin 
 ^vrote. 
 
 It should also be noticed that the fancied security of the 
 French peasant proprietors seems to exist mainly in the 
 imagination of enthusiastic panegyrists of the French 
 system. We may indeed well doubt whether the peasant is 
 at the present day really more secure in his occupation than 
 he was before the Revolution, although none would question 
 the enormous benefit and addition to his material prosperity 
 which he has otherwise derived from his deliverance from 
 the oppressive exactions of the feudal seignet(,r. Many of 
 the small proprietors live, it is notorious, in a condition of 
 chronic embarrassment, partly no doubt produced by their 
 eagerness to purchase plots of land, even, if necessary, with 
 borrowed money. " A large proportion of the OAvners," says 
 Ml". McCulloch, " are barely able, with all their proverbial 
 parsimony, to discharge the interest of the sums secured 
 upon the land, and are wholly without the means of 
 attempting any improvement, or even of recovering from an 
 accidental calamity, such as a hail-storm or an inundation.""!- 
 He goes on to show that in 1832 the amount of mortgage 
 
 * Westminster Review, ut supra, p. 531. 
 t Treatise on Succession, p, 106. 
 
96 
 
 debts in France was no less than ll,233,000,000fr., while in 
 1847 it had reached at a moderate estimate no less than 
 14,000,000,000fr. The interest on this principal would 
 amount to twenty-eight millions sterling, if calculated at 
 five per cent.; but it seems that the rate of interest really 
 varies from six to ten per cent. Such being the figures, we 
 are not surprised to learn that great numbers of small 
 properties are annually sold to satisfy the demands of 
 creditors; and when we are told that more than one half of 
 the property in the United Kingdom is under mortgage — a 
 statement which on the authority of Mr. Joshua Williams we 
 must probably accept — we may still consider ourselves 
 entitled to ask, by the light of these statistics, whether the 
 opposite system, as pursued in France, has been more 
 successful in preserving the land from the burden of such 
 incumbrances. 
 
 There are two significant facts with the mere statement 
 of which we may conclude a comparative examination, 
 already it is to be feared unduly long. The principles 
 of free trade, which France at one time seemed to have 
 definitely adopted, are falling more and more into disfavour 
 in that country. The manufacturing and agricultural 
 interests concur in demanding a larger measure of protection ; 
 and it does not seem rash to attribute this retrograde step in 
 some degree to the incapacity of a land, fettered by such 
 pernicious conditions of tenure, to compete on equal terms 
 with the greater fertility and productiveness of other 
 countries, of which the industry has never been hampered 
 by such a disastrous system. Once more, the prosperity of 
 a country may be roughly measured by the increase of 
 population. The test is, of course, by no means infallible; 
 since the growth of population may be sensibly retarded by 
 adventitious circumstances — such as war, famine or internal 
 revolution — of which the operation is merely temporary. 
 So far as it goes however the criterion is a good one ; and it 
 is not a little remarkable that, as far as can be ascertained, 
 the population of France within the last decade so far from 
 increasing in the same ratio as in England and Germany — 
 
97 
 
 notwithstanding the fact that the land-system and policy of 
 both these countries are distinctly favourable to emigration 
 and colonization, to an extent unknown in France — so far 
 from increasing in the same proportion as in other countries 
 with easier outlets for their superfluous inhabitants, has 
 been entirely stationary, if not actually retrogressive.* The 
 attention of politicians has recently been directed to this 
 grave phenomenon ; but I venture to suggest that it is only 
 a natural, probably an inevitable, consequence of a law of 
 succession which practically roots the people to an unelastic 
 area of cultivable land. 
 
 It would be foreign to tlie purpose of this essay, and would 
 extend it to a tedious length, were I to attempt to sheAV 
 that the same causes as in France, so far as they have been 
 left unchecked, have in other European countries produced 
 very similar results. The impression however that France 
 is the only country in which subdivision has been carried to 
 an injurious extent would be altogether erroneous. In 
 Prussia the old feudal system was originally abolished in 
 order to increase the defensive power of the population; 
 and the measure was highly successful in attaining its 
 immediate object.*!- The evils however resulting from an 
 excessive multiplication of small properties were not long in 
 matiifesting themselves ; and a proposal to introduce the 
 law of Primogeniture into the succession to certain classes 
 of property was seriously discussed at the first meeting of 
 the Pi-usian diet in 1847. Nothing however was done in 
 that direction ; and, according to Mi'. Harris Gastrell's 
 recent report, out of about 185,000 properties in the province 
 
 * It appears from the census-returns recently published that there has been 
 in the last five years a very slight increase in the population of France ; but it 
 is almost exclusively confined to the large towns, and in many of the most 
 purely agricultural districts there has been a positive decrease. Moreover, 
 such addition as there has been is in great measure to be attributed to an 
 extensive immigration from Alsace and Lorraine. 
 
 t An excellent account of the Prussian agrarian legislation of 1807, 1811 
 and 1850, is given in the paper contributed by Mr. R. B. D. Morier, C.B. (now 
 Her Majesty's Minister at Lisbon) to Systems of Land Tenure in Various 
 Countries : see especially pp. 297-326. 
 
 H 
 
98 
 
 of Prussia rather more than one half do not exceed twenty- 
 acres in extent.* 
 
 Turning to Wurtemburg, we find it reported as being 
 " the country where subdivision of land is carried to the 
 greatest extent." In that state there are 280,000 peasant 
 proprietors with not more than five acres each, and only 
 about 160,000 estates exceeding five acres in extent. In 
 Wurtemburg however the legitime does not exceed a third 
 of the whole property, unless where the children are at 
 least four in number ; and it is certainly remarkable that 
 even this moderate application of the legitim principle, 
 together with the law of equal succession on intestacy, has 
 been capable of carrying sub-division to so great an extent. 
 Efforts have in fact been made to check its spread by the 
 introduction among the peasant proprietors of customs 
 which though scarely consistent with the law are not inter- 
 fered with by the Courts. The eldest son usually succeeds 
 by the father's will to the whole of the paternal land, and 
 his brothers and sisters receive a pecuniary compensation 
 for their exclusion, which rarely, if ever, amounts to the 
 share which they would have acquired on an equal division 
 of the estate. " The daughters, however," writes the author 
 of the official report, " are more frequently on their marriage 
 allotted an equal share of land, and, as the husband is 
 probably the proprietor of a piece of land elsewhere in the 
 commune, the intersection and subdivision of the land goes 
 on increasing." It should also be mentioned, as another con- 
 sequence of the partition system in Wurtemburg, that the 
 number of marriages is much restricted by communal 
 regulations and that, as a natural result, the increase of the 
 legitimate population, as compared with that in other parts 
 of Germany, has been of late years extremely small.f The 
 law and its practical results are much the same in Bavaria. 
 The former prescribes equal partition ; but a system of 
 
 * On the oustoma by which the law of succession is to some extent counter- 
 acted in East and West Prussia, Silesia, and Pomerania cf. Mr. Ejre Lloyd's 
 Laws of Succession tC-c, pp. 03, 64. 
 
 + See Land Tenure Report : Part I. ; Eyre Lloyd, pp. 82, 83 ; Cobden 
 Club Essays, pp. 79, 80. 
 
99 
 
 Primogeniture has been introduced by custom. " In short," 
 writes Mr, Brodrick, "the peasant proprietors of Bavaria, 
 ■who are admitted to be a thriving class, appear to keep up 
 their family estates with as much tenacity as our own landed 
 gentry, but with a jealousy for the rights of younger 
 children which reminds us of the Irish peasant farmers."* 
 
 In Austria, however, the regulations of the code civile are 
 rigorously maintained, and no preference is accorded to the 
 eldest sons. Entails for the benefit of the latter, or of other 
 relatives, called according to the nature of the instrument a 
 Primogeniture, majorat, or seniorat — in which latter case 
 the eldest relation of the same degree succeeds — are however 
 occasionally permitted, but require a special charter and a 
 legislative sanction, which forcibly reminds us of the old 
 patrician will of the Comitia Calata. The feudal system 
 was abolished in Austria by the land laws of 1848-49, when 
 the peasant was converted, as previously in France and 
 more recently in Russia, from a predial serf into a free and 
 independent proprietor of the soil. The result of the present 
 system may be best described by a brief extract from the 
 official report made by Her Majesty's representative in 
 Austria, the present Viceroy of India, in reply to the circular 
 of the foreign office. Lord Lytton says : — 
 
 " Whilst recognising a vast improvement in the social and intellectual 
 standard of the Austrian peasantry since 1848, he is constrained to 
 observe that there can be no doubt ■whatever that every impulse in the 
 ■way of agricultural improvement has come exclusively from the great 
 lando'wners . . . . it is a notorious and striking fact that in 
 the most agricultural empire of Austria, agriculture only flourishes in 
 those provinces -where great estates and great lando'wners prevail ; and 
 in all those parts of the country -where the peasant proprietor predomi- 
 nates, the state of agriculture is singularly rude and primitive."t 
 
 In Belgium the practice of morcellement has been carried 
 even further than in France itself ; the average size of estates, 
 exclusive of woodlands and wastes, has been estimated at 
 seven acres; and Mr. Grattan shews from official statistics 
 that four-fifths of the farms did not exceed twelve acres in 
 extent. The amount of cultivable land held in large hold- 
 
 * Cobden Club Essays, p. 81. 
 
 + Land Tenure Keports : Part 11., p. 29. 
 
 h2 
 
]00 
 
 ings would appear to bo Kinall and constantly decreasing ; 
 and, as in France, the process of subdivision is accelerated 
 by the practice of bi-eaking up estates, when brought into 
 the market, into small parcels. Mi-. Wyndham, Secretary 
 to the Britannic Legation, reporting in 1869, remarks as 
 follows : — 
 
 "I have heard the opinion expressed by a person thoroughly 
 conversant with the agricultural status of Belgium that the excessive 
 subdivision was injurious to agriculture, and a regret expressed that 
 there was no law preventing the subdivision of properties of 15 hectares 
 in extent. The law regulating the equal partition of property, though 
 it breaks up large properties, equally affects the small. The death of 
 parents, who, through their toil and industry, have succeeded in saving 
 sufficient money to purchase a small house and a few hectares of land, 
 entails in all probability the sale of the property, in order to carry into 
 effect the division, as laid down by law, amongst the family; some- 
 times an arrangement is arrived at by which one or two of the sons 
 keep the home and land, paying an indemnity to their brothers or 
 sisters ; but this is a matter of difficulty, and children of parents who 
 have raised themselves to the position of small proprietors are all 
 reduced at the death of the parents to the humble position from which 
 the latter started."* 
 
 On the other hand, it is very remarkable that while 
 Holland is the only country in Europe, as appears from 
 the tabular statement cited above, which compares at all 
 favourably with England in the productiveness of its soil 
 and in the proportion of the population which agriculture 
 leaves free to acquire and manufacture wealth in other 
 ways, the feeling in that country is strongly opposed to un- 
 necessary subdivision of estates.^ The rule of the law is 
 the same as in France and Belgium ; but it has been in 
 great measure counteracted by public opinion and the good 
 sense and forethought of individuals. " It is a common 
 thing," writes Mr. Locock, in his contribution to the ofHcial 
 reports on Land Tenure, " for a farmer, whether proprietor 
 or tenant, to have accumulated before his death sufficient 
 movable property, frequently in the funds, to enable him to 
 assign a portion therefrom " — i.e., the amount required by 
 the Succession Law — " to one or another of his children." 
 
 * Land Tenure Reports, part ii., p. 235. 
 + Land Tenure Reports, part i., p. 214. 
 
101 
 
 In Italy and Portugal the system of compulsory division 
 prevails; and of the latter country we learn that it is the 
 pi-evalent opinion that " where, as is frequently the case, the 
 subdivision of land has been carried to excess, the result has 
 been to lower the standard of living of the rural popula- 
 tion."* The same remark is doubtless equally applicable to 
 Italy. In Spain however a large portion of the territory is 
 in the hands of the grandees and subject to entail; lands 
 belonging to the clergy are also inalienable ; and the law 
 of equal partition is therefore of comparatively small 
 importance. •}■ 
 
 Enough has been said to shew that the system of com- 
 pulsory partition, originally produced in almost every case 
 rather by political than economical considerations, while it 
 may perhaps have some advantage in temporarily improving 
 the condition of the peasantry, is, even from that point of 
 view, ultimately deplorable in its results ; while, considered 
 in its economical aspect, its effects are almost uniformly 
 inimical to agricultural improvement. It would not how- 
 ever be candid to assume that this is the only system which 
 opponents of the practice of settlement have suggested in 
 its place. A more specious suggestion, advocated by Mr. 
 John Austin in the above-mentioned article in the Weat- 
 minster Revietu, and more recently by Mr. Fowler, formerly 
 member for Cambridge, in a paper on " The present aspect 
 of the land question," is that while entails should be 
 abolished the present free liberty of conveyance and bequest, 
 um-estricted by law, should be uniformly retained. It is 
 proposed to convert all existing estates into fee-simple, and 
 to prohibit the transfer by deed or will of any smaller 
 estate than that which the possessor himself enjoys. The 
 question to be considered is whether the evils of entail are 
 so gxeat as to render such a change desirable, notwithstand- 
 ing the objectionable features which it presents. That it 
 would be in many respects objectionable is not difiicult 
 to prove. If indeed it were merely proposed to limit the 
 
 * Land Tenure Reports, part i., p. 171. 
 + Eyre Lloyd, v,t supra, p. 70. 
 
102 
 
 practice of entailing and to assimilate the law to that, for 
 instance, which prevails in most of the states of the American 
 Union, where the power of checking alienation has been 
 restricted to the creation of t^vo successive life estates, limited 
 to lives in being at the time of the execution of the instrument, 
 there would be no reason to regard such a suggestion with 
 grave alarm. It probably would not seriously affect the 
 existing system of tenure, deeply rooted as it is in the 
 feelings, perhaps in the prejudices, of our landed proprietors ; 
 and its principal result would be that arrangements for re- 
 settlement would be effected with greater frequency than 
 is at present necessary. But the total abolition of entails 
 would produce consequences of a very different and a much 
 more serious kind. In the first place, such a change in the 
 law would cei-tainly provoke the most violent opposition on 
 the part of the class which would be mainly affected by its 
 operation. It may indeed well be questioned whether in 
 the face of the sentiments on this subject, the offspring of 
 long-continued custom — and custom which is believed on 
 the whole to have worked satisfactorily — which are known 
 to prevail, so sweeping an alteration would be even feasible ; 
 and it seems still more difficult to feel assured that if feasible 
 it would be also expedient. A land-law of which the 
 immediate operation would be felt by a particular class 
 alone, and which the class in question would to a man resent, 
 can be justified only by the gravest social or economical 
 necessity, the existence of both or either of which appears 
 to the present writer to require further proof. Neither can 
 it be asserted that the objection of the landed class to the 
 abolition of the law of entail rests on merely sentunental 
 grounds. It would inevitably tend, and its advocates do 
 not conceal their expectation that it would tend, to the dis- 
 luption of large estates. Now the existence of such estates, 
 as has been shewn above, seems to have formed a necessary 
 condition of agricultural progress in the past, and certainly 
 at the present day when, owing to the introduction of 
 machinery and improved methods of cultivation, good farm- 
 ing constantly tends to involve a more liberal application of 
 
103 
 
 capital and a larger measure of intelligence, their destruction 
 cannot be regarded as an event which the economist would 
 regard with satisfaction. At the same time, it is perfectly 
 certain that they cannot be permanently maintained by any 
 other method than the practice of entail at present in use. 
 If every tenant held the fee simple of his estate, the energy 
 and self-sacrifice of a dozen generations of admirable land- 
 lords would be always liable to be dissipated by the 
 imprudence or extravagance of a single descendant. Family 
 pride may or may not be in itself a virtue, but there is 
 assuredly no greater incentive to exertion and to thrift ; and 
 the motive to the exercise of these qualities involved in the 
 hope of pei'petuating a family and a name would be immensely 
 attenuated by rendering any such perpetuity an idle dream 
 or impossible chimera. It has indeed been urged that a 
 class which is too weak and thoughtless to be capable of 
 protecting itself has no right to invoke the protection of 
 the law against its dissolution ; an argument which those 
 who employ would certainly hesitate to extend in a logical 
 manner to all parallel cases. The law is generally regarded 
 as performing not the least useful of its functions when it - 
 protects the weak not only from external injustice, but from 
 the disastrous effects of their own actions, when these effects 
 are not confined to the actual agents alone. The theoiy 
 however seems still more inappropriate when it is remem- 
 bered that as matters at present stand the landed proprietor 
 asks for no aid from the Courts except the common right of 
 every subject in the realm — the due enforcement of contracts, 
 the interpretation where necessary of ambiguities in their 
 phraseology, and the protection of property against injury 
 and trespass. What is proposed is no less than a direct 
 interference, by legislative act, with freedom of contract in 
 dealing with the soil. It has been already conceded that in 
 certain conceivable cases such interference may be justifiable 
 and even praiseworthy, but only when -exercised as a i^is aller, 
 and in the last resort. What then are those characteristics 
 of the system of entails so inherent in that system and so 
 vicious in their results as to imperatively require its summary 
 destruction ? 
 
104 
 
 The grounds on which the practice is attacked are biiefly 
 as follows. It is said to interfere to a vexatious extent with 
 the liberty of the landloi'd, and to render him sometimes 
 unable and sometimes unwilling to manage his estate to the 
 best advantage; it is also alleged that it exercises an 
 unfavourable influence on the position of the tenant, 
 diminishes his security, discourages him from making 
 necessary improvements, and adds to the difficulties of his 
 relations with the ownei'. It is moreover urged that the 
 circumstance that so large a proportion of the land is strictly 
 tied up under settlement has practically taken the soil of 
 the country out of the category of marketable commodities, 
 and prevented intending purchasers from gratifying a 
 reasonable and honourable desire to become owners of 
 freehold estates* 
 
 Let us proceed to consider these objections in the order 
 above laid down. It is often urged that the tenant for life 
 who, under a settlement or will, and much more frequently 
 by the former instrument, comes into possession may well 
 happen to be completely ignorant of agriculture and to have 
 little taste for a country life ; and that the land is thus pre- 
 vented from coming into the hands of those who would tui-n 
 it to the best account, while to the other evils of bad 
 management those of absenteeism may be added. The 
 evils of absenteeism are no doubt from a social standpoint 
 very considerable; from an economical point of view, and 
 considered in themselves alone, they have probably been 
 much exaggerated. The landlord, whether resident or not, 
 has usually the strongest pecuniary inducement to turn his 
 estate to the best account ; it is seldom difficult to select a 
 
 * An iateresting discussiou on the subject of entails took place in the House 
 of Commons in April, 1872, on a motion by Mr. W. Fowler "That in the 
 opinion of this House the present state of the Law as to the eutaU and strict 
 settlement of land discourages the investment of capital in the development of 
 agriculture, to the great injury of all classes of the people, and increases the 
 complication of titles, and the expense and delay incident to the transfer of 
 real estate." Mr. Gladstone recommended Mr. Fowler not to press his motion 
 to a division : in the result it was negatived by 103 to 81. (Hansard, cox., 
 pp. 991-1031). A proposition of the same kind in the present Parliament 
 would doubtless meet with a still more decisive defeat. 
 
105 
 
 competent steward or agent for that pui-pose ; and it has 
 been observed that the best managed estates are veiy 
 frequently those where the landlord, perhaps a great 
 nobleman taking a leading part in public life, has very- 
 slight personal acquaintance with agriculture, and where he 
 is in the habit of residing for perhaps less than a month in 
 the year. It will however be rejoined that, even granting 
 this to be true, the landlord's interest being only of a 
 temporary character, he has the strongest temptation to 
 exhaust the soil, and will assuredly be disinclined to lay out 
 large sums of money on improvements which do not promise 
 any immediate return. Experience does not prove this 
 theory to be correct ; and it certainly seems to leave out of 
 sight the circumstance that in the vast majority of cases the 
 devolution of estates under settlement is the same as the 
 tenant in possession, if owning the fee-simple, would himself 
 prescribe. In such cases it is obvious that the law of entail 
 will not affect his actions ; and moreover there are very few 
 improvements of such a nature that he Avho effects them 
 may not hope to derive in consequence substantial benefit in 
 the course of a few years ; while there are very few 
 individuals who do not think themselves justified in 
 anticipating a further lease of life of similar duration. 
 Lastly, it is important to remember that most real improve- 
 ments, tending to increase the productiveness of the soil, are 
 imder the English system naturally effected not by the 
 landlord but by the tenant ; and this brings us to the second 
 point — the assertion that the present state of the law is 
 discouraging to the energies of the tenant, and by making 
 his footing precarious presents an obstacle to his adopting 
 any methods of cultivation of which he cannot reckon 
 on immediately reaping the fruit. 
 
 The old system by which a tenant was required, as a 
 condition of preserving his holding, to pay an arbitrary fine 
 — now restricted to two years' value — on the death of the 
 landlord, at present only exists in the case of copyholders, 
 who are really not tenants but proprietors, and proprietors 
 whose land is being rapidly enfranchised, under the pro- 
 
106 
 
 vision of a recent Act, by the action of commissioners* 
 The great grievance involved in the settling of estates has 
 been that it frequently involved the deprival of the tenant 
 in possession of all power of leasing ; for no tenant for life 
 could grant a farmer a lease unless a special power to that 
 effect was inserted, as was the case with all well-drawn 
 deeds, in the deed of settlement ; and the inferior tenant 
 being thus at any moment liable to eviction, on the demise 
 of the superior, was placed in a most unsatisfactory position. 
 In Scotland, under the system of perpetual entails, the case 
 was much the same ; an entailer might there prohibit the 
 granting of any lease, however short, and the charging the 
 estate with debts, even when contracted for the most neces- 
 sary improvements. More than a century ago, conditions of 
 this kind had produced such great inconvenience as to call 
 for a legislative remedy; and by an Act of George III., 
 entitled " An Act for the Improvement of Lands, &c.,""f' a 
 tenant in possession was empowered to grant leases for 
 ninety-nine years for building purposes, and for fourteen 
 years and one existing life, or for thirty-one years, for agri- 
 cultural purposes ; and to burden the estate to an extent not 
 exceeding six years' rent for improvements of a nature 
 specified in the Act. The House of Lords subsequently 
 pronounced the practice of taking fines or grassums, at the 
 commencement of a lease, illegal; and since that decision 
 the farmers on an entailed estate in Scotland have been 
 in scarcely any respect worse off than on those not similarly 
 limited. + 
 
 In England an Act was passed in 1856, entitled an Act to 
 facilitate leases and sales of settled estates,§ which provided 
 that when the instrument by which any settled estate was 
 limited was made after that act came into force, and did 
 not contain any express provisions to the contrary, any 
 tenant for life might grant leases of any portion of the 
 
 * St. 15 and 16 Vict., c. 51, amended by St. 21 and 22 Vict., c. 94. 
 + St. 10 Geo. Ill, i;. 51 (The Montgomery Act), 
 t See McCuUooh, ut supi-a, pp. 66, 67. 
 § St. 19 and 20. Vict. u. 120. 
 
107 
 
 estate for any term not exceeding twenty-one years provided 
 that the best rent that could reasonably be obtained was 
 reserved, that no fine was raised, and that the usual 
 covenants as to payment and re-entry were inserted. It 
 was also provided that, whatever the date of the settlement, 
 leases might be granted on the authority of the Court of 
 Chancery for terms not exceeding 21 years for an agricultural, 
 40 years for a mining, &c., 60 years for a repairing, and 99 
 years for a building lease. The operation of this Act has 
 been, as far as can be judged, on the whole eminently 
 satisfactory; it provides to some extent for the event of 
 accidental omission, a contingency which however hardly 
 ever occurs, of powers intended to be granted by the deed 
 of settlement, while at the same time it does not substantially 
 interfere with the liberty of drawing up such instraments 
 of entail as may seem most advisable to their authors ; it 
 affords an adequate protection to the interests of remainder- 
 men; and it supplies facilities for granting agricultural 
 leases for a length fully sufficient to justify the occupant in 
 laying out money on improvements, for a term, indeed, 
 which few prudent farmers, mindful of the vicissitudes of 
 their profession and the uncertainties of the future, would 
 be anxious to enlarge. The Act of 1856 was however last 
 year repealed, and another statute, entitled the Settled 
 Estates Act, substantially repeating its provisions, enacted 
 in its stead.* By the new act the tenant for life, who may 
 grant agricultural leases for twenty-one years in England, is 
 empowered to make a similar demise for no less than thirty- 
 five years in Ireland, to take effect in possession within a 
 year of the execution of the instrument. 
 
 It would at present be probably premature to affirm with 
 confidence that the agricultural tenant is likely to derive 
 material benefit from the Agricultural Holdings Act of 
 1875,f a measure to which the present Prime Minister 
 attached such high importance as to prefer its safety to that 
 
 * St. 40 and 41. Vict. c. 18. For a full account of the provisions of the 
 new act see Joshua Williams' Lavj of Meal Property, pp. 26, 27. 12th ed. ; 
 1877. 
 
 t St. 38 and 39. Vict. c. 92, amended by St. 39 and 40. Vict. c. 74, 
 
108 
 
 of our merchant seamen. It unfortunately happens that 
 the adoption of the provisions of the act, as is the case with 
 so much of the legislation of the last four years, is purely 
 optional ; whence it may not be rash to conclude that, 
 according to the opinion epigrammatically expressed by 
 Lord Granville, while the good landlord does not require the 
 act the bad landlord will usually contract himself out of it 
 In point of fact, many landlords remarkable for their 
 liberality in their dealings with their tenants * have declined 
 to place themselves under its operation ; and such a course, 
 as far as the writer's knowledge extends, has been very 
 generally adopted in the case of College property, by the 
 insertion of a simple clause in new or renewed leases, to 
 which the lessees appear to make no objection. Under this 
 statute, a tenant at will is entitled to compensation for 
 improvements ; but such tenancies are in practice so 
 inconvenient to both parties as to be scarcely ever adopted 
 even in the most strictly settled estates ; and the improve- 
 ments likely to be effected by tenants of this class may be 
 generally estimated as nil. In the case of annual leases a 
 year's notice, expiring with a year of tenancy, is substituted 
 for the six months' notice formerly required. The improve- 
 ments for which compensation may be claimed imder the 
 act are divided into three classes, to be considered as 
 exhausted at the end of twenty years, seven years and two 
 years respectively; and the landlord is empowered to charge 
 the holding with repayment of the amount so paid over to 
 the outgoing tenant, on condition that, imless he is absolute 
 owner, the holding shall be freed from such incumbrance, 
 arising by way of interest or instalments, at the period when 
 the improvements for the purposes of the Act are regarded as 
 exhausted. A further provision is made as to what has 
 been often pointed out as a tenant's grievance — the law of 
 ao-ricultural fixtures. Where a tenant has, with the land- 
 
 o 
 
 lord's consent, affixed to the holding any engine, machinery 
 or other fixtures for which he is not under the Act or 
 
 * It is stated that every landowning member of the present cabinet has 
 declined to place his relations with his tenants under the operation o£ this 
 valuable measure. 
 
109 
 
 otherwise entitled to compensation, he is authorised to remove 
 it on the expiration of his tenancy, subject to the landlord's 
 option of purchasing the same.* The hardship arising 
 from the decision as to " mere agricultural buildings " in 
 the celebrated case of Elwes v. Maio may thus be considered 
 to have been in great measure removed. 
 
 It will thus appear that the position of a farmer on a 
 settled estate is, as the result of comparatively recent 
 enactments, practically the same as that of the occupier 
 under a fee-simple owner ; and that the tenant for life is in 
 all ordinary cases able to confer on his under-tenant all the 
 stability of position necessary to encourage a liberal system 
 of cultivation. It remains to consider the last objection 
 indicated above, namely, that the practice of settlement has 
 gravely diminished the facilities for the transfer of land. It 
 is no doubt partly as an indirect result of this system that 
 land must be regarded as a dear commodity, and one only 
 accessible to men of capital who are prepared to purchase in 
 considerable quantities ; but on the whole there seems much 
 reason to believe that this is not a circumstance which the 
 economist should regret. As a matter of fact, putting aside 
 the not inconsiderable percentage of unsettled land, the 
 process of re-settlement is so frequently in operation and so 
 regularly involves the sale and transfer of portions of settled 
 estates, that land is constantly in the market ; a purchaser 
 can generally find without having long to wait the kind of 
 estate of which he is in search; and the grievances of which 
 he has a fair right to complain seem to arise mainly from 
 the legal expenses of conveyance, and the cost of verifying 
 titles, which might certainly be greatly obviated by a far 
 less sweeping measure than the total abolition of entails. 
 
 The introduction of a bill to facilitate and simplify the 
 transfer of land appears to be regarded as incumbent on 
 every succeeding Chancellor ; but the measures which haA-e 
 been hitherto passed, so far from settling the question, have 
 plainly shewn that it is incapable of satisfactory solution 
 
 * The provisions of the act on this point are fully recounted in Williams' 
 Penonal Property, pp. 16, 17. 
 
110 
 
 unless a general register of titles, of which the evidence shall 
 be incontestable, or at all events a universal system of 
 registering all deeds, whether of mortgage or conveyance, 
 and all wills demising landed property, founded on those 
 methods of registering now adopted in Scotland, Yorkshire 
 and Middlesex, be compulsorily established throughout 
 the kingdom. In such case, all grants of rent charges and 
 others affecting control over the soil, and all deeds barring 
 entail, now enrolled in the Chancery Division, should be 
 collected and made easily accessible at the same place. The 
 expenses arising from the extravagant employment of 
 " common forms," that is, of superfluous phraseology intended 
 merely to swell the bill of costs, are of such a nature that 
 improvement in this respect must be looked for from the 
 solicitors themselves, who may in time become conscious of 
 the patent fact that more frequent transfers and less 
 reluctant purchasers, even of smaller estates and with smaller 
 bills of costs, would in the end become more really lucrative 
 to the profession than the present system. This indeed is 
 one of those matters which might be fully considered by 
 agencies like the Incorporated Law Society, or the Annual 
 Conference of Solicitors. 
 
 Something however has certainly been effected by the 
 recent Acts. The Vendor and Purchaser Act of 1874,* 
 which checked the habit of " tacking " by mortgagees, and 
 which Mr. Williams speaks of as "a very objectionable 
 enactment, in the absence of any general registry of title 
 deeds," was repealed in the following year by the Land 
 Transfer Act of 1875, which repeated many of its pro- 
 visions."!" This Act came into force at the beginning of last 
 year and, it is hoped, will provide intending purchasers of 
 land with increased facilities. By these measures a forty 
 years' title is in ordinary cases substituted for the examina- 
 tion extending back for sixty years which was formerly 
 required. Recitals, &c., twenty years old are to be con- 
 sidered as sufficient evidence of the facts to which they 
 refer, subject to any express stipulation to the contrary, 
 
 * St. 37 and 38 Vict., u. 78. t St, 38 and 39 Vict., c. 87. 
 
Ill 
 
 instead of, as formerly, requiring the insertion of a special 
 stipulation to be so accepted.* The Act of 1875 also 
 abolishes a former " Act to facilitate the Proof of Title and 
 the conveyance of Real Estates,"-f" and contains new pro- 
 visions with the same object. With regard to the probable 
 effect of these provisions it may be sufficient to cite the 
 cautious observations of Mr. Joshua Williams, in the latest 
 edition of his Treatise on the Law of Real Property. He 
 remarks : — 
 
 Registration under this Act is optional, and its success is too 
 doubtful to justify any lengthened account of it iu an elementary 
 work like the present. The system of official investigation of title 
 once for all is a good one, provided it be made by competent persons 
 
 and under sufficient safeguards If the Act should tend to 
 
 an efficient system of registration of assurances throughout the king- 
 dom it would, in the author's opinion, be the means of conferring a 
 great benefit on the community. This however cannot be advan- 
 tageously done, without resort to the printing of registered deeds and 
 of probates of wills, and the abolition of payments by length. J 
 
 The examination of the question of land transfer and its 
 relation to the practice of settlement — that is, to the custom 
 of Primogeniture which is indissolubly connected with that 
 system — would still be incomplete, if I left altogether 
 unnoticed one proposal for the simplication of the law which 
 appears at the present time to be steadily growing in favour 
 with politicians, jurists and economists alike. I refer to the 
 proposed assimilation of the law of realty to the law of 
 personalty. The difference between these two branches of 
 law has generally become widely marked at a comparatively 
 early period in the history of legal systems — at the period, 
 in fact, when " personalty " began to have any practical 
 value at all — whether the division has been into things 
 
 * Williams, Real Property. Ed. 12th, pp. 449, 450. 
 
 t St. 25 and 26 Vict., c. 53. 
 
 t Williams, Real Property Ed. 12th, p. 467. The attainment of a perfect 
 system of registration, giving at once a sufficient guarantee both of title and 
 extent of interest in land, is far from chimerical ; see for instance reports by 
 Dr. Hiibbe, on the Hamburg Register of Land, and by Mr. Morier, on the 
 system of conveyancing in the Grand Duchy of Hesse, among the official 
 reports from Her Majesty's Representatives, respecting Tenure of Land, above 
 referred to. The substance of the accounts furnished by these gentlemen is 
 given by Mr. Fowler, Cobden Club Essays, pp. 180, 181. 
 
112 
 
 which did or did not " require a mancipation," or, as among 
 most modern states which have based their jurisprudence 
 on the civil law, between moveables and immoveables. 
 Since its first establishment, one of the main reasons why 
 this distinction has been prized and maintained has been 
 derived from the increased facilities which it afibrded for the 
 rapid and convenient transfer of those subjects of enjoyment 
 and possession which, in a commimity not exclusively agri- 
 cultural, are also the most frequent objects of sale and 
 barter ; while at a still more advanced period in the history 
 of legal conceptions a stage seems naturally to come when 
 public opinion demands that, either by the operation of an 
 equitable jurisdiction or by direct legislative provisions, all 
 classes of property shall be rendered equally accessible to 
 the purchaser, and susceptible of conveyance from hand to 
 hand with equal facility and freedom. The adoption of 
 such a change as that to which I have referred has perhaps 
 been regarded on the one hand with unnecessary forebodings 
 of the danger, on the other with extravagant expectations 
 of the benefit, which would thence result. The consideration 
 of its expediency with reference to the law of intestate 
 succession must be reserved for a separate section. It may 
 however be here remarked that the assimilation of realty 
 to personalty has sometimes been rashly considered as a propo- 
 sition of the same character as that which would abolish the 
 law of settlement and entail. In point of fact, the two pro- 
 posals are not only very different, but are in fact irreconcilable 
 with one another. Mr. Fowler, in his " Essay on the Land 
 Question," has clearly recognised this circumstance, and, 
 writing in favour of the abolition of entails, argues, some- 
 what inconsistently with the general current of his essay, 
 that there is no reason to apply a similar rule to personaltj-, 
 and that the latter may be left subject to settlement, as at 
 present, while real property is taken out of the reach of such 
 restrictions.* Personal property is at present quite as 
 capable of being settled as real, though not in the same 
 manner.-f- The aid of Chancery is to a greater extent 
 
 * Cobden Club Essays, ut mpi-a, pp. 159, 160. 
 
 -I- See Joshua Williams, Personal Property, Part IV., ch. 1, " Of settlements 
 of personal property." 
 
113 
 
 required, and settlements can seldom have so long an effect 
 as when they deal with land ; whence it follows that, if the 
 law of landed property were made the same, settlements 
 would still be employed, although their nature would be 
 somewhat different, and, their operation being more 
 i-estricted, resettlement would on the whole be more fre- 
 quently required. The really considerable difficulty which 
 in the present state of the law is often encountered in dis- 
 tinguishing one class of property from another, a difficulty 
 which no layman would find it easy to comprehend or to 
 surmount,* certainly furnishes an argument for placing 
 both on a footing of equality. Without expressing any 
 decided opinion on this point, I may perhaps venture to 
 conclude this section by another quotation from Mr. Joshua 
 Williams. In the last paragraph of his work, he enunciates 
 in the following words a view which we may assume to 
 have been the result of a mature experience of the subject, 
 and which . certainly — coming as it does from one who is 
 known to have devoted his life to the successful study of 
 real property law — is deserving of the most deferential 
 consideration : — 
 
 From what has already been said, the reader will perceive that the 
 law of England has two different systems of rules for regulating the 
 enjoyment and transfer of property; that the laws of real estate, 
 though venerable for their antiquity, are in the same degree ill adapted 
 to the requirements of modern society; whilst the laws of personal 
 property, being of more recent origin, are proportionably suited to 
 modern times. Over them both has arisen the jurisdiction of the Court 
 of Chancery, by means of which the ancient strictness and simplicity of 
 our real property laws have been in a measure rendered subservient to 
 the arrangements and modifications of ownership, which the various 
 necessities of society have required. Added to this have been continual 
 enactments, especially of late years, by which many of the most glaring 
 evils have been remedied, but by which, at the same time, the sym- 
 metry of the laws of real property has been greatly impaired. Those 
 laws cannot indeed be now said to form a system ; their present state is 
 certainly not that in which they can remain. For the future, perhaps, 
 the wisest course to be followed would be to aim as far as possible at a 
 uniformity of system in the laws of both kinds of property ; and, for 
 this purpose, rather to take the laws of personal estate as the model, to 
 which the laws of real estate should be made to conform, than on the 
 
 * See for instance the celebrated case of Aoh-oyd v. Smithson. 
 
 I 
 
114 
 
 one hand to preserve untouched all the ancient rules, because they once 
 were useful, or, on the other, to be annually plucking off, by parlia- 
 mentary enactments, the fruit which such rules must, until eradicated 
 necessarily produce.* 
 
 It only remains to add that the foregoing investigation of 
 the subject appears to shew that a system of entail, unless 
 accompanied by carefully devised securities against abuse, is 
 likely in its consequences to be inimical to good agriculture 
 and economically objectionable ; that it would seem to be 
 the case that in our own country, by the wisdom of 
 Parliament and the liberality and intelligence of the great 
 majority of landlords, the evils incident to an unrestricted 
 practice of entailing have been really reduced to a miniinum; 
 that all counter-proposals appear to contain the germs of 
 consequences even more pernicious than those which the 
 Avorst conceivable method of entailing, if habitually 
 pursued, could possibly engender ; and that on the whole, 
 looking at the condition of English agriculture in the present 
 and its history in the past, and comparing its progress with 
 that of other countries where different laws prevail, it is far 
 better to maintain our own system, with such changes 
 dn detail as may be pi'oved requisite by experience, than 
 to run the risk of the almost certain consequences of any 
 radical alteration in the law, or of any effective restraints on 
 the present liberty of entailing in favour of the eldest son.f 
 
 * Williams, Real Property, p. 468. 
 
 + Montalembert, writing a quarter of a century ago of the English land-law, 
 makes the following remark : — Tant que cette legislation restera debout, tant 
 qu'elle ne subira d'autre ohangement que ceux qui en restreindront ks abus et 
 en perfeotionneront le maintien, on pent Stre rassur^ sur Tavenir de I'Angleterre. 
 L'orage ne grondera sfrieusement pour elle que le jour oii un mouvement 
 d'opinion se dgclarera contra les substitutions. Alors, mais alors seulement, 
 elle fera le premier pas sur cette pente qui pr^cipite les peuples, h, travers les 
 s^cousaes des revolutions, dans les bas-fonds da despotisme. De Vavenir 
 poUUqiie de I'Angleterre ; ch. vii. Se la llberti de tester, pp. 115, 116, 3me Ed. 
 
115 
 
 Section V. — Social and Political Aspects of 
 Primogeniture. 
 
 The social and domestic effects of Primogeniture, and the 
 political aspects of the same institution, are so important in 
 themselves, and so intimately connected with its economical 
 import, that no apologj'' perhaps is requisite for devoting 
 to this branch of the subject a few pages of diseiission. Let 
 us first consider the matter from the point of view of the 
 domestic forum, and briefly analyse some of the objections 
 which have been brought against the custom as prejudicial 
 to the true interests and proper relations of the father, the 
 eldest son, and the younger children. 
 
 It is said, in the first place, that the present law has 
 a tendency to place the father in a false position, and one 
 which it is unseemly for a parent to occupy. When, as 
 is often the case, on a son's attaining his majority it is 
 thought desirable to re-settle an estate, it sometimes happens 
 that the father has incurred debts, arising perhaps from 
 expenditure on improvements, perhaps from rash speculation 
 or some even less creditable cause, possibly from circum>- 
 stances beyond his own control, which he is anxious to take 
 the opportunity of charging on the estate, or meeting by a 
 sale of a portion of the property. Possibly he may wish to 
 marry again, and is desirous to provide a jointure for a 
 second wife, or to acquire facilities for creating portions for 
 possible children. Under such circumstances, it is said that 
 the practical decision rests with the son, who is called in to 
 judge his father's actions, to condone his former imprudence, 
 or sanction his matrimonial projects. As a matter of fact, 
 however, there is every reason to believe that family settle- 
 ments are usually arranged on a basis of generosity and 
 muttial good feeling ; the son often has at least as much as 
 the father to gain by the instrument in the execution of 
 which he participates ; and when it is remembered how 
 much misery and distress is caused to others by any reckless 
 extravagance or culpable neglect on the part of the possessor 
 of a large estate, we may well believe that the conscious- 
 
 I 2 
 
116 
 
 ness that he will be expected at no distant period to give 
 some account of his stewardship, exercises on the whole a 
 wholesome influence as a restraint upon such misconduct. 
 The custom of settlement would not be so popular among 
 our aristocracy were it habitually attended by such dis- 
 agreeable incidents as certain ingenious writers have suc- 
 ceeded in evolving out of their inner consciousness. It is a 
 sound maxim, though one often misapplied, that " hard cases 
 make bad law ;" and we can scarcely be expected to remodel 
 the whole system of entailing because it may have the 
 effect of embittering the family relations in a few excep- 
 tional instances. 
 
 It is not so easy to deny that the law of Primogeniture 
 not unfrequently exercises an ill effect on the persons who 
 are popularly supposed alone to benefit by it — the heirs of 
 landed proprietors. If naturally indolent, they are apt to 
 arrive at the conclusion that there is no special need for 
 them to exert themselves ; and if disposed to extravagance 
 they often find it easy to raise money on the security of their 
 expectations. The supposition that they enjoy very excep- 
 tional facilities in this respect is however to a great extent 
 erroneous. The son of a rich merchant or manufacturer, 
 who does not own an acre of settled land, finds the money- 
 lenders very nearly as accommodating as they prove to the 
 heir of a large entailed estate. In the latter case, they have 
 the security of a post-ohit, which may not be realised for 
 many years ; in the former they trust, with a confidence 
 justified by experience, that a feeling of honour, or the 
 desire to avoid a scandal, on the part of father or son, will 
 ensure the satisfaction of a percentage of their exorbitant 
 claims sufficiently large to make their trade remunerative. 
 It is said, moreover, that the eldest son, conscious that his 
 father's displeasure cannot affect his expectations, is apt to 
 shew himself deficient in filial duty ; whil^ the younger 
 children are supposed to feel a natural jealousy of his 
 exclusive advantages. It can only Ijo i-eplied that these 
 theories seem to have no very substantial foundation in 
 experience, by the light of which alone tlioir validity can be 
 
117 
 
 judged. On such a matter it is of course impossible to pro- 
 duce statistics, or pronounce a very dogmatic opinion ; but 
 it is not difficult to shew that any other system might with 
 equal facility be attacked as producing equally pernicious 
 effects on domestic happiness and the authority of parents. 
 If the existing law were superseded by one of compulsory 
 partition, under which the parent was bound to leave the 
 bulk of his fortune, irrespective of his inclinations, in equal 
 portions to all his children, the undutif ulness and indiffer- 
 ence to the father's wishes which is now, on very little 
 evidence, attributed to eldest sons might, on not less cogent 
 grounds, be attributed to all the sons alike. In neither case, 
 in the opinion of the present writer, would such gloomy 
 anticipations be frequently realised in fact, for the simple 
 reason that family affection and filial obedience are not 
 entirely or even principally engendered by pecuniary con- 
 siderations, or that enlightened calculation of self-interest 
 which the utilitarian philosopher regards as the only reason- 
 able source of human action. Once more, if the father were 
 allowed to dispose of his real estate, in all cases, exactly as 
 he pleased, if the law contented itself with abolishing the 
 exceptional privileges of the eldest son without introducing 
 any scheme of compulsory equality in their stead, it might 
 plausibly be argued that, instead of one son being indolent 
 and extravagant and the rest jealous and discontented, all 
 would alike exhibit the not less objectionable traits of 
 mutual suspicion, and would endeavour, by artifice and 
 intrigue, to supersede one another in the parental affection. 
 But all such theoi'ies are really vitiated by the unnecessarily 
 sordid view of human nature which they involve. Those 
 who know anything of the feelings commonly entertained 
 towards each other by the members of a large middle-class 
 family, where the father's property consists of personalty 
 alone, will at once recognise the absurdity of such a picture ; 
 but it is no further removed from the truth than some of 
 the imaginary evils of Primogeniture of which we hear so 
 much. Neither does it appear that an extension of the 
 liberty of bequest, any more than a law of legitime, would 
 
118 
 
 perceptibly or necessarily increase the dutifulness, obedience 
 or filial reverence of children, virtues which, as suggested 
 above, spring from very different causes than the hope of a 
 precarious gain in the distant future. It is somewhat 
 remarkable that while America is the land in which the 
 children are most entirely dependent on the pleasure or 
 caprice of the parent, and where the dispositions of the 
 latter are unchecked, to an extent elsewhere unknown, 
 either by law or public opinion, it is also in America that 
 we observe the independence of children, at an early age, 
 pushed to the greatest extreme. The fact is that, as De 
 Tocqueville long since remarked, the influence of the father 
 is always much greater in an aristocracy than a democracy ; 
 it is therefore greatest in a country where the law of Primo- 
 geniture, the mainstay of an aristocracy, exists. "Du 
 moment," he writes, " oil le jeune Americain s'approche de 
 la virilitd, les liens d'obeissance filiale se ddtendent de jour 
 en jour. Maitre de ses pens^es, il Test bientot apres de sa 
 conduite . . .la division des patrimoines qu'amene la 
 democratic contribue peut etre plus que tout le reste a 
 changer les rapports du pere et des enfants . . . ainsi dans 
 le meme temps que le pouvoir echappe a I'aristocratie, on 
 voit disparaitre ce qu'il y avait d'austdre, de conventionneL 
 et de Idgal dans la puissance patemelle et un sort d'^galite 
 s'dtablit autour du foyer domestique . . . dans la famille 
 ddmocratique le pere n'exerce gnhre d'autre pouvoir que 
 celui qu'on se plait a accorder k la tendresse et a I'experience 
 d'un vieillard."* In the face of these conclusions and 
 observations as to the effect on the domestic relations of a 
 system either of compulsory partition or unrestrained liberty 
 of bequest, we are perhaps entitled to inquire of those who 
 on this ground assail the custom of Primogeniture, what mle 
 more efficacious in securing the attainment of an end to 
 which they rightly attach so high a value they are prepared 
 to promulgate in its place ? 
 
 De Tocqueville also calls attention in an interesting note 
 to the circumstance that while the public or political institu- 
 
 * Dela Democratic en Amirique, Vol. IV, pp. 60, 64, 65, 66. 
 
119 
 
 tions of America are much more democratic than those of 
 France, the civil legislation, as illustrated by the absence of 
 any law of equal succession, is far less so. He attributes 
 this phenomenon to the circumstance that the author of the 
 code civile was unwilling, as many of his acts attest — and 
 notably his unsuccessful efforts to establish a new aristocracy 
 in the place of the old noblesse — to extend the democratic 
 principle beyond the sphere of the private relations of the 
 citizens to that of the constitutional polity. The influence 
 of the former on the latter is, however, so constant in its 
 pressure and overwhelming in its force, that it is certain 
 ultimately to prevail against all artificial barriers or dynastic 
 cunning. As our author observes of Napoleon, " Tandis que 
 le torrent d^mocratique d^borderait sur les lois civiles, il 
 feperait se tenir aisdment a I'abri derriere les lois politiques. 
 Cette vue dtait a la f ois pleine d'habildtd et d egoisme ; mais 
 un pareil compromis ne pouvait ^tre durable. Car, a la 
 longue, la socidt^ politique ne saurait manquer de devenir 
 I'expression et I'image de la soci^td civile ; et c'est dans ce 
 sens qu'on peut dire qu'il n'y a rien de plus politique chez 
 un peuple que la legislation civile."* 
 
 I return to the more immediate consideration of Primo- 
 geniture in its domestic aspects, and especially in its bearing on 
 the position of that class so frequently depicted as deserving 
 objects of public commiseration — the younger sons of landed 
 proprietors. The system of equal division, writes Blackstone, 
 "has the appearance of the greatest impartiality and justice, 
 at least in the opinion of younger brothers ;"")" while others 
 have asserted that the equity of the custom of Primogeniture 
 has been seldom recognised except by eldest sons. In point 
 of fact, an argwnientLim ad kominem of this kind is alto- 
 gether inappropriate ; and it might perhaps be shewn that 
 those who have on various occasions most vigorously assailed 
 or most energetically supported the present law have been 
 precisely those with the smallest personal interest in its 
 operation or effects. It is sometimes urged that Primo- 
 geniture deprives the younger children of their legitimate 
 
 * Dela Democratic, &c., Vol. IV., pp. 61, 62, note, 
 t 2 Blackstone Com., 215. ' ■ 
 
120 
 
 rights ; but such an argument certainly seems to imply some 
 confusion of thought on the part of those who use it. It 
 would appear to be a suiEciently obvious proposition that a 
 man's right to property, whether legal or moral, must arise 
 either from his having acquired it by his own exertions, or 
 from the conduct of others having implanted in his mind a 
 reasonable expectation that he would succeed to it. Now 
 the position of a younger son satisfies neither of these condi- 
 tions ; he certainly did not acquire the paternal estate, and 
 from his earliest years he has been aware that in all proba- 
 bility it will devolve upon another. Complaints of the 
 injustice of Primogeniture are indeed seldom heard from 
 the lips of those to whom it is supposed to be unjust. 
 The cadet of an ancestral family, on the contraiy, starts 
 in life with many advantages which he mainly owes 
 to the existence of that law. He generally enjoys an 
 annuity which, though insignificant in comparison with the 
 nominal fortune indicated by the rent-roll of his elder 
 brother, and not so ample as to leave him with no stimulus 
 to independent exertion, is yet sufficient to give him a start 
 in life, which many of his less fortunate rivals have cause 
 to envy. In a word, he is neither " cursed Avith a compe- 
 tence," nor crippled by the necessity of earning his entire 
 livelihood. Moreover, the influence of the family name, the 
 family connections, and the family wealth is actively exer- 
 cised on his behalf. In the paternal mansion he is always a 
 welcome guest ; among the neighbouring gentry, he is 
 received with the consideration which his birth demands. 
 In the professions, or the service of the Crown, his path is 
 to a great extent made smooth for him ; the merits of a 
 deserving scion of the landed aristocracy are rapidly recog- 
 nised ; and he has special opportunities of adding to his 
 fortune by a judicious marriage with a member of some 
 wealthy family, willing by such an alliance to unite recently 
 acquired riches with ancestral rank. There is indeed scarcely 
 any position in the State to which such an one, if blest with 
 good abilities, may not reasonably aspire ; while, if nature 
 has not endowed him with mental gifts, the credit of his 
 
121 
 
 family demands that some kind of honourable career shall 
 be invented for his behoof* 
 
 One indirect consequence of the English law deserves 
 particular attention. We have in this country hereditary 
 noblemen ; but we possess no order of nobility. This cir- 
 cumstance is in itself sufficient to explain the different degree 
 of consideration attached to a British peer, and a member, 
 for instance, of the French noblesse, or a Russian Prince. 
 The absence among ourselves of a noble class is no doubt 
 susceptible of historical explanation. It in part arose from 
 the manner in which the Thegns, who supplanted the older 
 Eorls, were first created. Thegnhood was in fact a nobility 
 of office bestowed by the King ; and on the death of the 
 office-holder, the office itself became vacant. A custom soon 
 arose by which the eldest son succeeded to his father's place 
 in the counsels of the throne; but the multiplication of such 
 places, so as to make room for all of noble birth, was of 
 course impossible. Thus it happened that the younger sons 
 and descendants of a peer necessarily remained undis- 
 tinguished, except perhaps by courtesy, from the commons 
 of the realm. This is in substance the explanation which 
 Mr. Freeman, who in more than one passage emphatically 
 directs attention to the fact that in England there is no 
 noble class, himself gives of the difference between our own 
 system and ths\,t of Germany or France ; and his language is 
 worth quoting, although it might be wished that he had 
 brought into greater prominence the circumstance that our 
 own institution could not possibly have been maintained 
 without that strict application of the doctrine of Primo- 
 geniture which has always been so eminently characteristic 
 of English law and custom : — 
 
 " What was it," he asks, " that hindered the nobility thus formed 
 
 * Toutefois, on aurait tort de croire que, chez leg peuples aristocratiques, 
 les privileges de I'alnd ne fussent avantageux qu'k lui seul, et qu'ils n'exci- 
 tassent autour de lui que I'^nvie efc la haine. L'alng s'efTorce d'ordinaire de 
 procurer la riohesse et le pouvoir b, ses frferes, paroe que I'^clat g^n&al de la 
 maison rejaillit sur celui qui la repr^sente ; et les cadets oherohent k faciliter 
 ^ I'alng toutea sea enterprises, parce que la grandeur et la force du chef de la 
 famille le met de plus en plus en etat d'en Clever toua lea rejetous. — De Tooque- 
 ville, ut supra, Vol. IV., p. 67. 
 
122 
 
 from becoming a real nobility ? What saved us from a noblesse or Adel 
 in the foreign sense ? For I repeat that in England we have, in 
 strictness, no nobility ; we have no class -which keeps on, from genera- 
 tion to generation, in the possession of exclusive privileges, either 
 political or social. Our peerage is not a nobility in the sense in which 
 nobility is understood in foreign lands. It is not only a rank to which 
 any man may rise, but it is a rank from which the descendants of the 
 hereditary holders must as a matter of course come down. Political 
 privilege belongs only to one member of a family at a time ; honorary 
 precedence does not go beyond one or two generations. This is not 
 nobility in the sense which that word bears in those lands where all 
 the descendants of a noble are noble for ever. Why then did not the 
 Thegnhood of England grow into a nobility such as that which in 
 other lands grew out of the same elements 1 . . . That great law of 
 William which made every man in the land the man of the king had 
 much to do with it ; but, paradoxical as it may sound, I conceive that 
 the very power and dignity of the peerage has had a good deal to do 
 with it also. Elsewhere nobility was primarily a matter of rank and 
 privilege, with which political power might or might not be connected. 
 But in an English peerage the primary idea is political power ; rank 
 and privilege are a mere adjunct. The peer does not hold a mere rank 
 whiph he can share with his descendants; he holds an office, which 
 passes to his next heir when he dies, but which he cannot share with 
 any man while he lives. The peer then, not a mere noble, but a 
 legislator, a counsellor, and a judge,* holds a distinct place in the State, 
 which his children can no more share with him than anyone else. 
 Hence in England we have but two classes. Peers and Commoners, those 
 who hold the office and authority of a peer and those who do not. 
 The children of a peer come under this last head as much as other 
 men ; they are therefore Commoners. The very existence of the 
 peerage of itself hinders the existence of a nobility in the true sense of 
 the word."t 
 
 The existence in England of this state of things, thus 
 lucidly enunciated and historically explained by Mr. Freeman, 
 as contrasted with the system of hereditary nobility 
 prevalent upon the Continent, appears to the present waiter 
 to be, both socially and politically, of almost unmixed 
 advantage. It is one of the results, and certainly not the 
 least important result, of thelawand custom of Primogeniture. 
 With us the eldestson of theBaronbecoraeshimself eventually 
 a Baron also; but his younger son only receives by courtesy 
 the designation of " Honourable ;" and none of the childi-en 
 
 * The judicial powers of the House of Lords have by receut legislation been 
 noirinally retained and practically abolished. 
 1' Fi'eeman, E. A., Comparative Politics, pp. 263-265. 
 
123 
 
 of the latter enjoy any sort of titular recognition or are 
 distinguished, otherwise than by their family name, from 
 the most vulgar parvenu of yesterday. A constant 
 mingling of classes is thus effected ; the influences of birth 
 and culture permeate downwards and are widely diffused ; 
 and the maxim of "noblesse oblige," if not ostentatiously 
 professed, is tacitly recognised as a guide to conduct by 
 many who are only noble through an amiable though illogical 
 confusion of thought. If the bearer of a famous name 
 commits an unbecoming action he is thought to have 
 disgraced others besides himself ; and the consciousness of 
 their descent must often exercise a wholesome influence on 
 many an obscure, perhaps doubtful, scion of the house of 
 Bedford, of Norfolk, or of Argyll. Neither is this the only 
 or the chief benefit which we derive from the constitution 
 of our peerage. The peerage is an elastic and changing 
 body to which, while some are constantly descending from 
 it, others as frequently ascend. The owner of splendid 
 wealth and large estates may reasonably hope to be called 
 to the counsels of his sovereign, and to found a new line of 
 legislators and peers ; the performer of eminent public 
 services is entitled to look for the same reward ; a patent of 
 nobility frequently crowns a distinguished career in 
 diplomacy; every briefless barrister is a potential Chancellor, 
 and every new-fledged curate is potentially a spiritual 
 peer. If we wish to fully appreciate the benefits which we 
 derive from this constant intermingling of classes, and 
 translation of individuals from one class to another, it wiU 
 be enough to cast a momentary glance at some of the effects 
 of the more rigid system which generally prevails on the 
 Continent — in France, for example, or in Russia. 
 
 The sign of nobility in France is the prefix de before the 
 surname ; and the possession of this prefix, though without 
 political significance, is of great social importance. The 
 bearer of it is always regarded as a person of consideration ; 
 he who lacks it is considered a nobody. There are at the 
 present day in republican and democratic France three 
 distinct classes, la noblesse, la bourgeoisie, and le peuple, 
 
124 
 
 separated from each other by a wide line of demarcation ; 
 and what is called society consists entirely of those who are 
 ranked under the first of these heads. At the time of marriage, 
 it becomes of immense importance to a Frenchman whether 
 he does or does not possess the cle. In the former case, 
 however reduced his fortune, he can reckon on improving it 
 by a wealthy alliance with some bourgeoise family ; in the 
 latter no such opportunities will be open to him, while he 
 will seldom find it possible to persuade a lady — or rather 
 the parents of a lady— of gentle birth, even if in impoverished 
 circumstances, to give her hand to a plebeian. Many curious 
 instances of the influence on matrimonial projects of this, 
 to a stranger, insignificant prefix are given by Ms. Hamerton, 
 in his interesting work on Rural Life in France ; and they 
 certainly go far to prove that the spirit of romance is not, 
 as we are sometimes told, altogether extinct among our 
 neighbours across the Channel.* 
 
 It is perhaps only a natural consequence of the artificial 
 value set upon the de that it is often falsely assumed by 
 persons who have not the slightest claim to use it. The 
 nobility having no political privileges, there is little in the 
 law to check such a practice ; while by the discreet use of 
 cautious and gradual methods the condonation of public 
 opinion can often be obtained. A man, for instance, buys 
 some small estate ; and proceeds after signing his name to 
 add, at first in brackets, that of his property, merely of 
 course in order to distinguish himself from other persons 
 having the same surname. The brackets however are soon 
 removed ; the old plebeian name then completely disappears ; 
 and M. Machin, who has made a fortune by his usines, who, 
 for convenience sake, on becoming a rural proprietor, styled 
 himself Machin (de Roulongeau), who a few years afterwards 
 was known as Machin de RoulongeaU, in the end developes 
 into Monsieur de Roulongeau, the lineal representative for- 
 sooth of the ancient barons of that line.f II n'y a que le 
 premier j'^as qui coMe. The false title is sure to be conse- 
 crated by time ; and no government can venture to expose 
 
 * Round my House, pp. 88-91. t Ibid. 
 
125 
 
 such assumptions for fear of injuring its own friends. The 
 Legitimists would be thought most inclined to take some 
 such step ; but it is said that the most ardent Legitimists 
 are to be found among the fictitious nobility. Such persons 
 are sure to be what is called Men pensant; it belongs to the 
 character they assume ; and it would not be very rash to 
 conjecture that the most energetic supporters of the revo- 
 lutionary government of Marshal MacMahon, which imper- 
 tinently claimed the title of " Conservative," were to be 
 found among those who, like the vulgar Minister of the 
 Interior himself, had falsely arrogated the prefix de to their 
 own names. If this fiction once receives ofiicial recognition 
 it becomes a fact ; and when the government wishes to 
 enlist the support of an individual like M. Machin it will 
 generally shew little hesitation in inserting his assumed 
 title in some official document, which at once stamps it as 
 genuine. 
 
 Contemptible as these practices may seem, it is by no 
 means clear that we have not been ourselves saved from 
 something of the same kind, not so much by any special 
 insular exemption from the failing of " snobbishness," as by 
 the circumstances adverted to above. If there were in this 
 country an order of nobility, and every person outside its 
 ranks were regarded as of vulgar character and low extrac- 
 tion, and if there were no legitimate means of gaining a 
 footing among the titled class, it is quite likely that we 
 should witness equally despicable attempts to efiect an 
 illegitimate entry. Mr. Hamerton seasonably reminds those 
 who would assume an air of virtuous indignation, how 
 common among ourselves is the false assumption of the 
 heraldic emblems of ancient families by persons who are 
 well aware that they are acting without the slightest colour 
 of right ; while others, not satisfied with the names their 
 fathers bore, transform themselves into Howards or Seymours 
 by means of an advertisement in The Times. 
 
 If we turn to Russia, we shall find that the existence of 
 a patrician caste has not there generated precisely similar 
 evils ; but at the same time the results can scarcely be 
 
126 
 
 regarded as satisfactory. Nobility is not sought by fair 
 means or foul, for the simple reason that nobility in itself 
 has lost all its value. All the sons of a Prince are them- 
 selves Princes ; and the statement that in Russia you meet 
 with whole villages of "Princes" is scarcely an exaggeration. 
 The result is that in Russia there are no distinctions save 
 those which flow from autocratic favour ; birth counts for 
 absolutely nothing ; official rank, rank in the service of the 
 State, or the confidence of the Tsar, furnish the only claims 
 to consideration. Thus Mr. Wallace goes on to say, after 
 describing a Prince of the highest class, one of distinguished 
 official position at St. Petersburg, who had spent the greater 
 part of his life in administrative work, and held a seat in the 
 Council of State : — 
 
 " The Prince belongs to the highest rank of the Russian Noblesse. 
 If we wish to get an idea of the lowest rank, we have merely to go to 
 the neighbouring village. There we shall find a number of poor, 
 uneducated men, who live in small, squalid houses, and are not easily 
 to be distinguished from peasants. They are nobles, like the Prince ; 
 but, unlike him, they have neither official rank nor large fortune, and 
 their landed property consists of a few acres of poor land, which barely 
 supplies them with the first necessaries of life. If we went to other 
 parts of the country, we might find men in this condition bearing the 
 title of prince ! This is the natural result of the Russian law of inherit- 
 ance, which does not recognise the principle of Primogeniture vdth regard 
 to titles and estates. All the sons of a prince are princes, and at his 
 death his property, movable and immovable, is divided equally amongst 
 them all."* 
 
 On the subject of Primogeniture, we read in the volume 
 of Land Tenure Reports already cited : — 
 
 " There is no general law of primogeniture, although in a few great 
 families estates have been entailed under a special law passed in the 
 reign of the Emperor Nicholas. In 1713, Peter the Great intended to 
 introduce a general inheritance in fee of the eldest son, but this was so 
 much opposed to the spirit of the Russian landowners that one of the 
 first acta of Peter II. was to cancel the ukase of 1713."+ 
 
 It is difficult to avoid concluding that the Russian nobles 
 would have conisulted better for their own ultimate interests, 
 and the stability of their position and influence in the 
 
 * Russia : by D. Mackenzie Wallace. Vol. I., p. 410. The italics are 
 my own. 
 
 + Land Tenure Rerorts, Part II., p. CR. 
 
127 
 
 country, had they acquiesced in the decree of their saga- 
 cious monarch. In another passage, Mr. Wallace remarks : — 
 
 " We find plenty of Eussians who are proud of their wealth, of their 
 culture, or of their official position, but we scarcely ever find a Russian 
 who is proud of his birth or imagines that the fact of his having a long 
 pedigree gives him any right to political privileges or to social con- 
 sideration. Such ideas appear to the ordinary Eussian noble absurd 
 and ridiculous. Hence there is a certain amount of truth in the oft- 
 repeated saying that there is in reality no aristocracy in Eussia. 
 Certainly the Noblesse as a whole cannot be called an aristocracy.. 
 If the term is to be used at all, it must be applied to a group of 
 families which cluster around the Court and form the highest ranks 
 of the Noblesse. This social aristocracy contains many old families, 
 but its real basis is official rank and general culture, rather than pedi- 
 gree or blood Though it has no peculiar privileges, its actual 
 
 position in the Administration and at Court gives its members great 
 facilities for advancement in the public service. On the other hand, its 
 semi-bureaucratic character, together %oith the law and custom of dividing 
 laiided property among the children at the death of their parents, deprives 
 it of stability. New men force their way into it by official distinction, 
 whilst many of the old families are compelled by poverty to retire from 
 its ranks. The son of a small proprietor or even of a parish priest may 
 rise to the highest offices of State, whilst the descendants of the half- 
 mythical Eurik may descend to the rank of peasants. It is said that 
 not long ago a certain Prince Krapotkin gained his ' living as a cabman 
 in St. Petersburg."* 
 
 It would be superfluous to dilate on the small significance 
 attached, even in their own countries, to the title of a 
 German Baron or an Italian Count. In whatever country 
 there has existed a noble caste, the same results present 
 themselves. The nobility have either lost all consideration, 
 as such, or, shorn of political privilege, have had the morti- 
 fication of seeing their titles usurped by opulent parvenus, 
 eager thus to gain the entree of society. The very different 
 
 • Russia, Vol. I., pp. 431, 432. According to the latest statistics, the 
 number of hereditary nobles in Russia is 652,000: of "personal" nobles, 
 374,000. With Mr. Wallace's remarks on the Russian nobility we may com- 
 pare an epigrammatic sentence in which Balzac describes the efiect of the 
 revolutionary legislation on the nobility in France : — Sous la restauration, la 
 noblesse s'est toujours souveuue d'avoir &i6 battue et vol^e ; ainsi mettant h, 
 part deux ou trois exceptions, est elle devenue Soonome, sage, pr^voyaute, 
 enfin bourgeoise et sans grandeur. Depuis, 1830 a oonscmm^ I'asuvre de 1793. 
 En France, d^sormais, on aura de grands noms, mais plus de grandes maisons, 
 b, moins de changements politiques difficiles Si pr^voir. Tout y prend le cachet 
 de la personnaliti. La fortune des plus sar/es estviagire; cm- y a ditruit lafamille. 
 
128 
 
 fortune of our own hereditary peerage is one of the fruits of 
 the law of Primogeniture and the practice of entailing ; and 
 if that practice be abolished it is difficult to see how that 
 fqrtune and position which is essential to the dignity of a 
 peer, and without which it is impossible for him to discharge 
 efficiently his political duties, can by possibility be main- 
 tained. Mr. Brodrick and Mr. Fowler argue strongly for 
 giving every father an unlimited power of disinheriting an 
 unworthy son.* Doubtless, an estate might often benefit if 
 such an one; who had plainly shewn his incompetence, were 
 set aside in favour of another and more deserving member 
 of the family ; but it is obvious that titles could not thus be 
 shifted at the discretion, possibly at the caprice, of a private 
 individual. It may moreover be hoped, and the hope would 
 be justified by frequent experience, that one who while heir- 
 apparent has shewn little ability or merit, will often be 
 roused, on acceding to a large estate and an illustrious name, 
 to an efibrt to discharge with credit the duties of his high 
 position. Mr. Brodrick argues that if his proposal were 
 adopted " since he " — the eldest son — " would depend, like 
 his younger brothers, upon his father's award, he would, like 
 them, betake himself to some profession or business, and 
 endeavour to increase, instead of diminishing, his future 
 patrimony." It would be easy to shew the incongruity which 
 this suggestion would in many cases involve. Is the 
 Marquis of Blandf ord, for instance, expected to go to the bar 
 and support a family at Nisi Prius with a precarious hope 
 of some day succeeding to an establishment at Blenheim ? 
 Is the Marquis of Hartington to eke out in opposition the 
 salary which he has drawn in the past, or hopes to draw in 
 the future, as a cabinet minister, and see Chatsworth pass 
 into other hands ? Or shall the Marquis of Stafibrd join the 
 bulls and bears of the Stock Exchange, and learn on the 
 demise of the Duke of Sutherland that Stafford House and 
 a few hundred thousand acres with it have been bequeathed 
 to the Hospital for Incurables, or some other beneficent 
 institution ? Mr. Brodrick demands what would be indeed 
 
 • See especially Cobden Club Essays, pp. 110-115. 
 
129 
 
 a vast and sweeping change in the law; but he scarcely 
 seems to realise that before such a change can be brought 
 about it will be necessary to effect an alteration certainly 
 not less vast both in public opinion and in the private feel- 
 ings of the upper classes. Mr. Fowler, it is true, discusses 
 this point in a more rational manner, and admits that it 
 might be necessary to leave the law as it stands in the case 
 of the peerage, while abolishing its operation over the estates 
 of commoners ;* but so illogical a compromise could scarcely 
 be of permanent duration, or prove satisfactory to either 
 class. 
 
 It would however be wrong to ignore the fact that the 
 hereditary peerage itself is an institution not universally 
 approved, and of which it is impossible to assert that it may 
 not be considerably modified in the future. This is not the 
 place in which to defend or attack the first estate ; from our 
 present point of view it is sufficient to observe that it is not 
 so much the descent of hereditary titles, as the legislative 
 powers attached to them, which furnish ground for hostile 
 criticism. Those who would substitute an elective assembly 
 for the House of Lords would still leave the deposed peers 
 their patents of nobility, and the custom of primogeniture 
 would still be necessary to maintain such dignity and 
 influence as might remain attached to the class. It may 
 however well be doubted whether such a class, if divested 
 at once of responsibility and power, would as a class be 
 any longer worth preserving. " II n'y a rien," writes De 
 Tocqueville, " de plus misdrablement corrompu qu'une aris- 
 tocratie qui conserve ses richesses en perdant son pouvoir 
 et qui, reduite a des jouissances vulgaires, possfede encore 
 d'immenses loisirs. Les passions dnergiques et les grandes 
 pens^es qui I'avaient anim^e jadis, en disparaissent alors, et 
 Ton n'y rencontre plus guhie qu'une multitude de petits vices 
 rongeurs, qui s'attachent k elle, comme des vers a un 
 cadavre."f All experience corroborates this remark. If 
 primogeniture were devoted to the maintenance of a wealthy 
 and imprivileged class, without political power and devoid 
 
 * Cobden Club Essays, pp. 147-149. 
 + De la Ddmocratie, &o., Vol. IV. p. 94. 
 
 K 
 
130 
 
 of all conception of social duties coi-relative to their rights, 
 it would probably work more harm than good ; and the 
 argument on its behalf, derived from its utility as an instru- 
 ment for keeping together the landed property of peers of 
 the realm, would, it may be conceded, at once fall to the 
 ground on the abolition of the hereditary branch of the 
 legislature. 
 
 There are however other and not less weighty pleas in its 
 favour, which a consideration of the political aspects of 
 Primogeniture suggests, and which would remain unaffected 
 by such a measure. There is no branch of our adminis- 
 trative institutions to which a thoughtful Englishman 
 deservedly attaches higher value than our system of local 
 self-government. It may be unsatisfactory in some of the 
 detailed and occasional results of its operation; its organi- 
 sation is confessedly imperfect; the method in which those 
 who manage it are chosen is undoubtedly capricious; like 
 most other parts of our constitution it has its weaknesses, 
 its anomalies, its failures; but when we observe the pre- 
 judicial effects of excessive bureaucracy and centralisation 
 on the Continent, and the obstacles which they oppose to 
 political liberty and the independent initiative of the in- 
 telligent individual, we may indeed feel grateful for the 
 able and enlightened management of local affairs by local 
 bodies which we ourselves enjoy. The people of England 
 have thus acquired the habit of doing for themselves a thou- 
 sand things, indifspensable to health, to order, and to pro- 
 gress in civilisation, which the inhabitants of other countries 
 instinctively look to the State to effect on their behalf. It 
 has been often observed that there is no better training for 
 the House of Commons than regvilar attendance at Quarter 
 Sessions ; and if the work of local administration be neg- 
 lected or perfunctorily performed, it is certainly impossible 
 to look for any genuine vitality in representative institu- 
 tions. The comparative credit and success with which 
 liodies like County Boards, Chambers of Agriculture, and 
 the unpaid iriagistracj' — an in.stitutinn, I believe, witho\it a 
 parallel in the world — discharge thoii- various functions. 
 
131 
 
 actuated by no hope either of pecuniary gain or public 
 recognition, is mainly due to the existence in every county 
 of a considerable number of large landed proprietors, 
 endowed with sufficient leisure and sufficient wealth to 
 devote their energies ungrudgingly to such work, and who 
 feel that their stake in the country is such as to make it 
 both their interest and their duty that it be accomplished 
 in the most satisfactory manner. The practical failure, 
 described by Mr. "Wallace, of all attempts to create a satis- 
 factory system of local administration in Russia must be 
 mainly ascribed to the absence in that country of such a 
 class. In France, the excessive power of the officials, too 
 often abused for the most pernicious ends, is in great mea- 
 sure due to a similar cause ; and indeed it is not very easy 
 to see how, except by some law analogous to our own 
 custom of Primogeniture, an order of independent gentle- 
 men, indifferent to the favour or displeasure of political 
 factions, can possibly be created or maintained. 
 
 The social value of such a class in diffusing, directly or 
 indirectly, consciously or unconsciously, an atmosphere of 
 refined feeling and liberal culture throughout the countiy is 
 scarcely less considerable. The hereditary peer, or tenant 
 of a great ancestral property, may perhaps have received no 
 great amount of what is commonly known as education ; 
 but he seldom remains altogether unaffected by the educating 
 influences among which he has always lived. He grasps 
 intuitively those chivalrous and elevated ideas and modes 
 of thought which others, less fortunate in their birth, only 
 attain by a slow and laborious process of reason and reflec- 
 tion. If himself, by some rare accident, illiterate and coarse, 
 the members of his family will probably exhibit a different 
 and a purer taste ; and the refining influence of the country 
 house, with its splendid picture gallery, its noble heirlooms, 
 its well-furnished library, its varied collection of objects of 
 vertu and artistic treasures, is by some imperceptible process 
 diffused far beyond the circle of its immediate inmates. We 
 may indeed conclude that there are very few, even among 
 younger sons, who, if they dispassionately weighed the 
 
 K 2 
 
132 
 
 benefits derived by one generation after another from such 
 associations, would not hesitate to sacrifice them in exchange 
 for some pecuniary gain of doubtful value, in which it 
 would rarely happen that more than a single generation 
 would participate. If the law were different, the ancient 
 demesne would be sold and the paternal estate partitioned, 
 since the plan sometimes adopted by old French families of 
 avoiding these evils by uniting their several branches, and 
 leading a sort of common life in the ancestral chateau, would 
 be altogether uncongenial to English feeling. The yoimger 
 sons would perhaps receive two-thousand a year instead of 
 five-hundred as their portion ; but they would lose the chief 
 incentive to exertion; their own children would probably 
 be no better off" than if their parents had started in life 
 with humbler means ; while the prestige of the family name 
 and the advantage of its influence would be irreparably lost 
 to all its subsequent descendants. While the present system 
 endures, we may justly apply to the family tree of an ancient 
 house the description which the Sibyl gave of that mystic 
 branch which, dedicated to the nether Juno, grew amid 
 meaner foliage on the sombre slopes of pathless Avernus : — 
 
 Primo avolso non deficit alter 
 aureus, et simili frondesoit virga metallo. 
 
 The ore is indeed of gold, and precious ; and it boasts such 
 magic spell as to refine by its unfelt touch and tacit presence 
 the less pure metal of newer wealth which, brought into 
 contact with it and dwelling by its side, acquires in the 
 process of years a measure of its purity and virtue. 
 
133 
 
 Section VI. — The Law of Intestate Succession. 
 
 I HAVE not as yet directly adverted to the distinction 
 between what is known as the custom, and what is rightly 
 termed the law, of Primogeniture, a distinction sufficiently 
 familiar to all students of the English law of property. To 
 put the matter concisely, by the custom of Primogeniture is 
 meant the practice of entailing land on the eldest son born 
 of |the anticipated marriage of some living person, in such a 
 manner that, should he survive his father, it will be impos- 
 sible to prevent such son from succeeding to the inheritance. 
 The law of Primogeniture, in the stricter sense of the former 
 word, is the rule by which, on an individual dying intestate, 
 all his real estate devolves on his eldest son or heir-at-law, 
 as determined by the canons of descent. The question is 
 sometimes asked by persons of sufficient intelhgence to 
 appreciate this important difference, but not sufficiently 
 instructed in legal history to be aware of the origin of either 
 the law or the custom, whether the former produced the 
 latter or the reverse process in fact occurred, in other 
 words, whether the law was the effect of the custom or the 
 cause of its development? Enough has been said in a 
 preceding section to shew that to attribute either the law to 
 the custom or the latter to the law would be historically 
 incorrect ; but that the former explanation would be the 
 less misleading of the two. To an uncertain but very 
 limited extent the existing law may be said to influence the 
 existing custom ; but both are based on a much older law 
 which left no scope for individual choice. We have seen 
 that, not long after the Norman Conquest, the right of the 
 eldest son to inherit his father's land, at first in theory a 
 mere customary succession dependent on the donor's pleasure 
 became, in the case of lands held by knight's service, an 
 indefeasible prerogative, a prerogative of which he could not 
 be divested either by lord or tenant ; that the latter gradu- 
 ally acquired the right of alienating during his life-time, but 
 seldom, and only for certain special purposes, exercised that 
 right to the detriment of his heir ; that by a judicial decision, 
 
1:34 
 
 in the reign of the fourth Edward, the father acquired full 
 power, whatever his estate, to disinherit his son by a col- 
 hisive action ; that by the Statute of Wills, passed under 
 Henry the Eighth, the right of testamentary bequest was 
 partially conceded ; and that by an incidental effect of the 
 abolition of feudal tenures on the Restoration that right, 
 previously limited in its exercise, was extended to the whole 
 estate. 
 
 At the same time, after the full liberty of alienating 
 during life-time had been recognised by law, the force of 
 custom and the inclinations of parents contributed in most 
 cases to preserve the ancient method of descent ; and the 
 invention in the seventeenth century of the modem system 
 of settlements to a great extent secured such devolution, 
 and once more withdrew it from the control of each succeed- 
 ing tenant. Similarly, after a plenaiy right of testamentary 
 disposition had been granted to landowners, many who had 
 not otherwise disposed of their property, declined to avail 
 themselves of this method of doing so ; and the law naturally 
 presumed that such persons were acquainted with its pro- 
 visions, and wished their estates to descend intact to the 
 normal heir. Hence it happens that all realty still devolves, 
 on a parent dying intestate, on the eldest male descendant 
 of the eldest line.* , 
 
 The case of personal property has long been recognised 
 by the law as very different, and requiring different rules for 
 its distribution on intestacy. It does not indeed very 
 frequently happen that the owner of a considerable real 
 estate, of which he is free to dispose as he pleases, dies 
 without making a will or prescribing its devolution by some 
 other means ; and when such is the case the omission is 
 often the result of deliberate purpose. Moreover, as we 
 
 * It would be superfluous to here explain the preciae effect of the technical 
 rules by which, since the act for the amendment of the law of inheritance, the 
 descent of realty is governed. The main points are, (1) The heir is traced from 
 the last piircJmser, a word which in legal phraseology bears a special sense ; 
 (2) males are preferred to females ; (3) when two or more males are of the same 
 degree of consanguinity the eldest is preferred ; and (i) the lineal descendants 
 iip infiritltiiii of a deceased person represent their ancestor. 
 
135 
 
 learn from the Parliamentary Return of 1875, the number 
 of landowners in the kingdom, including those whose_^ free- 
 hold is of the smallest dimensions, and many who only 
 possess " terms of years " which are not technically real 
 property at all, is less than a million ; while most adults 
 possess on their decease some personal property to dispose 
 of, which is often however so small in amount that it never 
 occurs to them to incur the anxiety or the expense involved 
 m making a will. Many too who earn considerable incomes, 
 and are seldom without a substantial balance at their 
 bankers, die intestate in middle life. They have perhaps 
 never given the subject any consideration ; more probably 
 they have simply postponed what it is felt can be done at 
 any time to some less busy season ; and they often justify 
 themselves in doing so on the ground that they are on the 
 whole satisfied with the prospect of their property being 
 administered by their relatives according to the provisions 
 of the law. 
 
 On the death of an intestate, administration of his or her 
 property is granted, usually to the widow, widower, or next 
 of kin, on application to the Probate Division of the High 
 Court of Justice. The administrator then divides the effects 
 in accordance with the provisions of two enactments, passed 
 in the reigns of Charles the Second and James the Second, 
 and known by the name of the Statutes of Distribution.* 
 These Statutes appear to have for , the first time accurately 
 defined the respective rights of the various relatives of the 
 deceased, and the method of distribution which they 
 prescribe must be regarded as on the whole of a satisfactory 
 and equitable kind. In accordance with these enactments, 
 if the intestative leave children but no widow the whole, 
 if both children and a widow, two-thirds of his personal 
 estate, after the claims of creditors have beeen satisfied, are 
 divided among the former in equal shares. If he also leaves 
 real estate the heir is still entitled to his share in the 
 personal property ; he could indeed until within the present 
 reign, as has been already mentioned, claim to have mortgage 
 » St. 22 and 2:J Car. U. u. 10 : aud St. 1 Jac. II. u. 17. 
 
136 
 
 debts and other- incumbrances charged on the land first 
 satisfied out of the personalty, like ordinary debts, before 
 the apportionment of the residue amongsU the next of kin. 
 If the intestate leave a widow and no children, the former 
 is entitled to a half instead of a third of his assets, the 
 remaining half going to his father, or, if the latter be dead, 
 his mother, brothers and sisters in equal shares; while if 
 there be neither widow nor children, the father, if there be 
 neither widow, children nor father, the mother, brothers and 
 sisters, and if there be none of these relatives, nor children 
 of the latter, the next of kin, traced according to the rules 
 of the civil law, succeed in equal shares to the personal 
 estate.* 
 
 This method of distribution appears to afford general satis- 
 faction, and to require little if anyamendment. Certainlynone 
 would advocate the descent of personal like real property to 
 the heir-at-law ; but of late years a proposal to assimilate 
 the law of intestate succession to realty to that of personalty 
 has been received with much and, as far as can be judged, 
 increasing favour. There is indeed much to be said for such 
 a change; and indeed one of the arguments most frequently 
 emploj'ed in defence of the present law is that, for reasons 
 already adverted to, its practical effects are extremely 
 insignificant. If however a law is in itself a bad one the 
 assertion that it is seldom allowed to operate can scarcely be 
 regarded as a sufiicient excuse for its retention. It may wil- 
 lingly be conceded that the direct effects on the tenure of land 
 which a change in the law in this direction would produce 
 would be relatively inconsiderable ; although the assertion, 
 which has been made on several occasions, that not more 
 than two per cent, of the realty in the country descends by 
 the rules of intestate succession, is probably below the mark- 
 One remark, however, must here be made. It is scarcely 
 fair for those who support the existing law to defend it 
 simultaneously on two contrary grounds. At one moment, 
 we are told that the law is too unimportant to be worth the 
 trouble of reforming ; while the next argument we hear is 
 
 ■* For a full explanation of the rules here roughly sketched, see Joshua 
 Williams' Personal PropeHy pp. 396-399. Ninth Edition. 
 
137 
 
 that the custom of Primogeniture is inseparably bound up 
 with the present law of intestacy. It was apparently for 
 this latter reason that the Real Property Commissioners, 
 appointed in 1828, reported in favour of the devolution of 
 an intestate's realty to his heir, as being " far better adapted 
 to the constitution and habits of this kingdom than the 
 opposite law of equal partibility, which, in a few genera- 
 tions, would break down the aristocracy ot the country, and, 
 by the endless subdivision of the soil, must ultimately be 
 unfavourable to agriculture and injurious to the best 
 interests of the State." These dismal forebodings of the 
 fatal results of a small alteration in the law, which is quite 
 as often resisted on the ground that it would have scarcely 
 any results at all, appear to be founded on a transparent 
 fallacy. If the alternative lay, as the Commissioners seem 
 to have thought, between the law as it now stands, accom- 
 panied by the full liberty of bequest we at present enjoy, 
 and a system of compulsory equality, with the right of will- 
 ing either greatly curtailed or completely abolished, we 
 should thoroughly agree with the Commissioners on the 
 pernicious character of such an innovation. But, since it 
 is difficult to believe that the assimilation of the law of 
 realty in its devolution on intestacy to that of personalty 
 would in the course of "' a. few generations " either " break 
 down the aristocracy of the country " or produce an " end- 
 less subdivision of the soil," and since on the other hand we 
 have ample evidence that the present condition of the law 
 does frequently cause very great hardship and distress 
 among the class of small proprietors, there seems to be at 
 least a strong prvmd facie ground for modifying its 
 provisions. 
 
 " Intestacy," says Mr. Joshua Williams, " rarely happens 
 to the owner of large landed property. The property which 
 decends to heirs under intestacies, though large in the 
 aggregate, is generally small in individual cases."* It 
 is precisely in this circumstance that the hardship consists. 
 In the great majority of cases a large estate is resettled, on 
 
 * Personal Property, p. 402. 
 
138 
 
 the tenant in tail in remainder attaining his majority ol' 
 contemplating marriage. After such a settlement, it often 
 happens that little realty remains in the power of either the 
 old or the new life-tenant for him to bequeath by will. 
 Mr. Brodrick agrees that the effects of the law of intestacy 
 on large estates are not extensive ; he is however of opinion 
 that cases of voluntary intestacy on the part of large pro- 
 prietors are especially rare, and that when intestate death 
 occurs it is more often the result of a failure to execute an 
 intention deliberately formed but constantly postponed, or 
 of a will or several wills having been made which the courts 
 are unable to recognise as valid, or perhaps of the recent 
 purchase of some piece of freehold which by the sudden 
 demise of the purchaser devolves upon the heir.* Yet it is 
 an equally admissible view that intestacy among the land- 
 owning class, when it does happen, arises from the circum- 
 stance that the intestate, having, as he considers, already 
 made by deed suitable provision for all who are interested 
 in his estate, or have a claim on his remembrance, is content 
 that the remainder should devolve upon the heir by course 
 of law, and without the expensive employment of fui-ther 
 legal instruments. 
 
 It may at least be assumed that among the holders of 
 large estates undesigned intestacy, extending in its effects 
 to any considerable portion of their property, is of compara- 
 tively rare occurrence, and that when it occurs it must 
 ordinarily be ascribed to discreditable neglect. The succession 
 of the heir of a large proprietor is usually a very different thing 
 from the nearly "universal succession'' of the heir of an intes- 
 tate owner of a small unsettled freehold. " The settlements," 
 says Mr. Williams, "by which entails are created are more fre- 
 quently made by deed than by will. They almost invariably 
 contain provisions for the portions of younger children, 
 varying in amount with the value of the property ; and 
 whether made by deed or will, they are usually long and 
 intricate in their nature, providing for the numerous con- 
 tingencies which may arise under the peculiar circumstances 
 
 * Cobdeii Club Essays, p. (iS. 
 
ISO 
 
 of each family. Nothing in fact can be more different thail 
 the devolution of an estate to the eldest son under a family 
 settlement, and the descent on an intestacy to the eldest 
 son as heir-at-law. In the one case he takes subject to the 
 proper claims of the other members of his family ; in the 
 other he is bound to them by no obligation at all. There 
 seems to be no method of making, in case of intestacy, any 
 sort of disposition of landed property which might be rea- 
 sonably simple, and at the same time resemble an ordinary 
 family settlement."* Such being the case, the question 
 presents itself, does the existing rule of law, by which the 
 heir takes everything and the next of kin nothing at all, 
 on the whole coincide with the real wishes and intentions of 
 the owners of small freehold estates, or is it the case that, 
 with the great majority of such persons, the failure to make 
 a will arises either from accident or inadvertence or from an 
 impression that the law if left to itself will distribute the 
 property in a very different manner? The prevailing theory 
 is that the law of intestacy has for its object to carry out, 
 as far as can be ascertained, the probable intentions of the 
 deceased himself; and this seems to be, on the whole, the 
 best theory on which such a law can at the present day 
 be based. The results however scarcely seem to be in 
 practical agreement with such a theory. Experience 
 seems to shew that the owner of a small freehold, 
 when he makes his will, usually devises it to trustees 
 for sale, and directs the proceeds to be apportioned 
 among his children in such shares as, regard being had to 
 the provision he has already made for them, the position 
 they may occupy in the world, perhaps too the place they 
 may have acquired in his affections by their respective 
 merits, he on the Avhole considers best. He does not exclude 
 a daughter for the sake of her brother, or leave the younger 
 children in penury for the questionable object of " making " 
 an eldest son. He has probably acquired the property him- 
 self; he has never thought it worth while to settle it; he 
 has -failed, possibly through no fault of his own, to execute 
 
 •* Williams, Personal PropcHi/, pp. 401, 102. 
 
140 
 
 a valid will; he relies, it may be, on the equity of the law; 
 and on his death bed is happily ignorant that his unfortu- 
 nate relatives will soon discover how little law and equity 
 are as yet in such matters " fused." 
 
 One of the principal objections which may be justly 
 urged against the present law lies in the practical difficulty 
 which the layman now constantly experiences — a difficulty 
 which his ancestors but rarely felt — in distinguishing real 
 from personal estate. An advowson, for instance, is at pre- 
 sent a marketable commodity, and capable of being be- 
 queathed or descending on intestacy; and yet there are 
 probably many owners of advowsons who are not quite 
 certain whether such property is real or personal, and com- 
 paratively few who could explain why it is classed under 
 the former head. There are other cases in which the 
 distinction between realty and personalty depends on 
 reasons still more purely artificial. Thus, shares in rail- 
 ways and canals are ordinarily personal property; but the 
 owner of shares in the New River Company enjoys a free- 
 hold estate. A lease of lands for however long a period — 
 a building lease, for instance, for 999 years — is merely a 
 personal interest in the soil; while he who possesses an acre 
 of ground during another's lifetime, in the legal phrase, " hath 
 a freehold." It is thus quite possible to imagine a person 
 owning a large amount of real property dying under the 
 impression that his property was exclusively personal, or 
 vice versa. Let us for example take the hypothetical case 
 of two men of business, in the same position of life, and 
 each with a large family which depends upon him for sup- 
 port. Each, having realised a moderate fortune, retires from 
 trade, realises his interest in the firm, and looks out for a 
 suitable investment. One applies his whole capital to the 
 purchase of New River Shares, while the other invests in 
 leasehold property and buys a long and valuable " term of 
 years." They both die intestate, each in the belief that his 
 property is personal and will be divided in due proportion 
 between his widow and children. The intentions of one of 
 them will be exactly realised; while every penny belonging 
 
141 
 
 to the other will go to the heir at law, on whose sense of 
 honour and acquaintance with the wishes of the deceasedtheir 
 more or less complete fulfilment will depend. Perhaps, on the 
 otherh and, while the owner of the shares deemed his posses- 
 sions personal, the owner of the leaseholds thought his estate 
 was real; in which case the intentions of each would be alike 
 frustrated. It may of course be replied that such mis- 
 apprehensions imply an amount of carelessness difiicult to 
 conceive and which deserves to be punished; but unfortu- 
 nately the history of litigation shews that there is scarcely 
 any degree of carelessness, in dealing with property, which 
 can be pronounced incredible; and the law of intestacy is 
 meant to remedy the unfortunate effects of carelessness as 
 well as of accidents which could not be foreseen. And 
 indeed the argument that the forfeiture of posthumous 
 control over property is only a fit punishment for wilful 
 ignorance or neglect seems to lose nearly all its force when 
 we remember that it is not the deceased but his innocent 
 kindred who suffer from the consequences of such errors. 
 
 The case above depicted is of course imaginary ; but it is 
 not necessary to travel out of the region of actual facts to 
 discover illustrations of the perverse effects too often pro- 
 duced among the poorer class of freeholders by the present 
 law of intestate succession. Many hard cases have been men- 
 tioned, during the discussions of the subject in the House of 
 Commons, by Mr. Locke King and others, far too many 
 indeed to be cited here. The writer of an article in The 
 Times, who, on the rejection of Mr. Potter's Bill last year, 
 asked why the promoters of that measure failed to adduce 
 instances of substantial wrong inflicted by the law of 
 Primogeniture,* had only to look through some former 
 volumes of Hansard to find plenty of such instances recorded 
 in its columns. Hardships, for example, frequently arise 
 from a poor freeholder dying intestate, leaving an infant 
 heir ; letters of administration of course cannot be taken 
 out in the same way as if he had left a few hundred pounds 
 in the bank ; and the only way to obtain beneficial control 
 
 * The Times, June 29th, 1876. 
 
142 
 
 over the property is by the expensive process of applying 
 to the Chancery Division for the appointment of a trustee.* 
 Another case which actually occurred is that of a parent 
 who by his will bequeathed his property, which was ex- 
 clusively personal, to his children in equal shares. He after- 
 wards contracted to buy a small freehold estate, but died 
 before the purchase money had been handed over. The 
 executors were of course compelled to complete the purchase. 
 They had to employ nearly all the personalty for that 
 purpose, and the freehold estate went exclusively to the 
 eldest son, who was perhaps an infant. One other instance 
 of the operation of the law given in an earlier debate by 
 Mr. Locke King is so striking that I venture to reproduce 
 his words : — 
 
 " A man married a woman who had some property of her own. The 
 House would recollect that among the humbler classes scarcely any 
 settlements were made ; and no settlement was made in this case. 
 The man was in trade ; hut not liking to employ his wife's fortune in 
 his business, it remained untouched for some years. At length the 
 house in which they resided was advertised for sale, and the man at 
 once said to his wife, ' This is a fair investment for your money,' and 
 he bought the house with that money. Some time afterwards the man 
 died, and, not being acquainted with the law, he died intestate. He 
 was extremely fond of his wife, and had no children. What .was the 
 result? A nephew of his, the heir-at-law, claimed the property, and 
 the unfortunate widow was obliged to find employment as a menial 
 servant.", t 
 
 No doubt this case was one of peculiar hardship; but 
 there is no reason to believe that it is at all exceptional in 
 its general features. Hundreds of others have been brought 
 to the knowledge of those who advocate a change in the 
 law, and many of them have been mentioned and not dis- 
 puted in the House of Commons. On the other hand, if the 
 law of intestate succession to realty were assimilated to that 
 which the Statutes of Distribution have established in the 
 case of personalty, while none who desired to leave their 
 property to the person who, under the present system, is 
 heir-at-law would be prevented from doing so, the occur- 
 rence of cases in which not only the known intentions of the 
 
 * Hansard's Parliamentary Deluilcs, oxcvii., 186. 
 t Itaiisuril, clxxxiii., IHIO, 7. 
 
11.3 
 
 deceased are defeated but grievous wrong is inflicted on 
 others would become impossible. No one would have a 
 right to complain ; for the person who is now the heir would 
 cease to be so, and would have no pretext for bewailing the 
 disappointment of his legitimate expectations; and if a 
 certain amount of landed property were yearly distributed 
 among the next of kin, instead of going to a single represen- 
 tative, of deceased intestates, it would be impossible to 
 seriously maintain either that the custom of Primogeniture 
 was endangered or the rights of property assailed. It may 
 indeed be contended with some plausibility that the present 
 rule, if its existence, and its consequences as realised in 
 practice, were generally known among the members of the 
 class which it principally affects, would be enough to inspire 
 a positive horror of intestacy, which can scarcely be a 
 desirable feeling in any community. Such horror has been 
 experienced in other lands and times, and it seems to have 
 been engendered by circumstances strikingly analogous to 
 those above referred to. At Rome, as in other ancient 
 States, testamentary disposition was at first unknown. 
 The intestate succession of the family of the deceased to all 
 he owned was there as elsewhere the older rule. The right 
 of willing was at Rome but gradually and tentatively intro- 
 duced ; but at no long period after it was fully established 
 it was very generally exercised, and before the close of the 
 republican period there was no calamity which the Roman 
 citizen regarded as more serious than that of intestate death. 
 The wish that he might die without a will was almost the 
 worst imprecation which a Roman could employ against 
 his most bitter enemy. The reasons which probably 
 actuated this " vehement distaste for an intestacy " are well 
 explained by Sir Henry Maine. " We might have assumed 
 d priori," he remarks, " that the passion for testacy was 
 generated by some moral injustice entailed by the rules of 
 Intestate Succession ;"* and he proceeds to shew what that 
 moral injustice was. The emancipated children — those in 
 all probability whom the father most loved and honoured — 
 
 * Ancient Laie, p. 222. 
 
144 
 
 were excluded from all share in his estate ; and, in default 
 of children still under the paternal power, the family inherit- 
 ance was divided between the nearest Agnates or the still 
 more remotely connected Gentiles of the deceased. Our 
 own law must often produce results scarcely less abhorrent 
 to a parent's wish ; and while it may be an excellent thing 
 for everyone to be encouraged to make a will, it can scarcely 
 be satisfactory for the principal motive to that act to lie in 
 the iniquitous conclusions which the law, if not foiled by 
 the precautions of the individual, will deduce from his 
 omission. 
 
 Moreover, while it may be admitted that the amount of 
 property of which the devolution would be directly modified 
 by this amendment of the law is relatively small, its indirect 
 effects would probably be far from inconsiderable. It would 
 not have any appreciable influence on the dispositions of 
 large landed proprietors, even in the comparatively rare 
 cases where these latter are effected by means of wills;* 
 and if it were in the least likely to threaten the custom of 
 primogeniture the present writer, regarding that custom as 
 on the whole extremely beneficial, socially, politically and 
 economically, to the country, when restricted to a certain 
 class, would consider it the lesser evil of the two to endure 
 the unfortunate consequences occasionally produced by the 
 present law, than by its modification to imperil so valuable 
 an institution. But in point of fact the class which would 
 be affected in an indirect as well as in a direct manner by 
 this reform would consist almost exclusively of the smaller 
 and less educated proprietors of land. It would to a great 
 extent be composed of the 700,000 persons whom the 
 Parliamentary Return enumerates as holding portions of 
 the soil less than an acre in extent. Many of these who 
 now make a will in one way because the law, if they failed 
 to do so, would deal with their estate in much the same 
 fashion would, if the law were changed, at all events con- 
 
 * Some evidence of tlie very small effect which a law of equal succession on 
 intestacy may be expected to produce on the dispositions effected by large pro- 
 prietors is furnished by the extent to which, in despite of the law, the practice 
 of dlsgavdling has been pursued in Kent. 
 
145 
 
 sider the propriety of assimilating their wills to the new 
 rules of intestacy. In very many cases a man of no educa- 
 tion, with a few acres of freehold, tells a country solicitor to 
 make his will, or asks the clergyman or schoolmaster to 
 perform that office for him, without giving any special 
 instructions as to the manner of distribution. He tells them 
 to do " what is right and proper," or what is " usual ;" and if 
 an instrument is duly prepared in favour of the heir he 
 signs it with entire satisfaction, and a feeling that he has 
 creditably discharged an important duty. But if the " heir- 
 at-law " ceased to exist it would at least be necessary to 
 ascertain with more precision- the real wishes of the testator; 
 and on further inquiry it would often appear that he 
 wished to distribute his property in something like equal 
 shares among all his children. Thus a change in the law of 
 intestacy would in all probability, among other salutary 
 consequences, indirectly contribute to the fulfilment of the 
 intentions of many a testator. While the devolution of 
 these small properties to the heir does not contribute to the 
 attainment of anj^ of those beneficial results which Primo- 
 geniture, on a larger scale, efi'ects, and while the acquisition 
 of a small inheritance, just sufficient perhaps to keep him in 
 idleness, and with no duties or responsibility attached, is 
 often far from beneficial to the heir himself, the loss to the 
 widow and younger children of their respective shares in 
 the property of the deceased must frequently be very severe, 
 and is not for a moment to be treated as if they were in the 
 same position as the well-jointured widow and younger sons 
 each with a moderate annuity of his own, of a large pro- 
 prietor. 
 
 There appears then to be every reason to believe that the 
 effects both direct and indirect of an assimilation of the law 
 of realty, if only in the case of intestate succession, to that 
 of personalty would on the whole be eminently beneficial. 
 I have said enough in preceding sections to shew that I 
 should not regard the fact that a law prevails in all other 
 countries, or in no other country, as a sufficient argument 
 for its introduction or abolition amongst ourselves. It by 
 
14G 
 
 no means follows that because institutions are found to be 
 satisfactory or pernicious in other lands they would be 
 equally salutary or equally baneful in England ; and indeed 
 the land-laws of most European States appear to be more 
 useful on the whole as a warning than as an example. At 
 the same time, if a law is found on other grounds, and as 
 the result of an independent examination of its eiFects, to 
 be practically indefensible, we may regard this conclusion as 
 corroborated by the circumstance that we stand alone in 
 maintaining it. In all those European States where the 
 principle of legitime is recognised the law of equal division 
 or intestacy prevails; and in the States of the American 
 Union, where the testator's liberty of bequest is as uncon- 
 trolled as in England, the eldest son receives no privilege 
 from the law. As far as I am myself aware, Bremen is the 
 only other State in the world where the realty goes, or 
 until quite recently went, on intestacy to the eldest son ; and 
 even in Bremen the younger children, or " co-heirs " as they 
 are called, are entitled to receive a pi'e.scribed poi-tion out of 
 such estate.* Were it not for the extraordinary vitality 
 which institutions, and especially institutions in any way 
 connected with property, have always enjoyed in England, 
 it would be difficult to understand why a law without 
 substantial argument in its favour, and conspicuous by its 
 absence from the codes of every other civilised country, 
 has not long since disappeared from our own statute book. 
 
 It may be well, before closing this section, to briefly 
 mention the general effect of the debates on this subject 
 which have occurred in Parliament during the last few years, 
 and to trace the fluctuations of opinion which have been 
 exhibited by that assembly. A bill entitled the "Real 
 Estate Intestacy Bill," whicli pi'ovided that real property 
 should be apportioned on intestacj' in the same manner as 
 personal estate, was introduced by Mr. Locke King in 1859, 
 the year of the late Lord Derby's abortive attempt at 
 Reform. It was opposed, among others, by Lord Palmerston 
 and Sir G. Comwalle Lewis, and was rejected, on the second 
 
 * Cobtlea Club Essays, p. S2. 
 
147 
 
 reading, by 271 to 76. In the next Parliament, the Parlia- 
 ment which will be known to history as that in which Lord 
 Palmerston held sway, Mr. King, believing that he had no 
 chance of success, abstained from introducing his measure ; 
 but after the dissolution of 1865 had proved that the country 
 was still Liberal, and when there seemed a prospect of a 
 Liberal administration justifying its raison cl'Stre by once 
 more entering on the path of reform, the indefatigable 
 opponent of the Law of Primogeniture determined to renew 
 his attempt to procure its abolition. The result might well 
 have discouraged all further efforts ; for the Bill once more 
 failed to receive a second reading, and the majority against 
 it— 281 to 84 — was almost precisely the same as seven years 
 before. This decisive defeat seems to have been mainly 
 owing to the speeches of two distinguished statesmen. Lord 
 Selborne, then Attorney-General, and Mr. Gladstone, then 
 Chancellor of the Exchequer, whose united opposition was 
 sufficient to ruin the chances of success which might other- 
 wise have attached to any proposed reform. Sir Roundell 
 Palmer, in a moderate and able speech,* said almost all that 
 could be said against the measure, which after all did not 
 amount to very much. He objected, on economical grounds, 
 to small holdings and the division of small estates, adding 
 that " by this Bill you would be making it absolutely neces- 
 saiy that every small estate should be sold," a singulai-ly 
 erroneous view of a measure which in no way interfered 
 with the liberty of testamentary bequest. Mr. Gladstone, 
 while intimating his sense that the existing state of the law 
 was far from satisfactory, at the same time expressed his 
 general concurrence with the view of the Attorney-General ; 
 and the result was as I have already described. 
 
 A remarkable change of opinion was however soon to 
 occur, apparently without any special cause other than that 
 produced by more general and mature consideration of the 
 subject. Mr. Locke King's persistent efforts were destined, 
 three years after this crushing defeat, to be crowned with 
 no small measure of success. On the 14th of July, 1869, 
 
 ' See Hansard, Vol. CLXXXIII. 1989-1992. 
 
148 
 
 the " Real Estate Intestacy Bill " once more stood for second 
 reading. It was opposed, as on previous occasions, in an 
 ingenious and vivacious speech, by Mr. Beresford Hope; 
 but the then Attorney-General, now Lord Coleridge, 
 addressed the House in its favour; and on a division 
 the Ayes were 169 and the Noes 144. Instead of being 
 rejected, as it had been only three years before by con- 
 siderably more than three to one, the principle of the Bill 
 was at length affirmed by a decided majority in the House 
 of Commons. 
 
 The Session was of course in the middle of July too far 
 advanced for the BiU to be pursued much further. The 
 House never went into Committee on its provisions ; but at 
 the beginning of next Session it was seen that the vote of 
 1869 had not been lost sight of by the Government. The 
 speech from the Throne in 1870 announced a measure for 
 the assimilation of intestate- succession to real and personal 
 estate ; and a Bill, substantially identical with that so often 
 brought in by Mr. Locke King, was introduced by the Chan- 
 cellor of the Exchequer (Mr. Lowe), the Attorney-General, 
 and the Solicitor-General. The session however was 
 engrossed by the discussion of other and more important 
 measures ; and the Government was unable to advance the 
 Bill beyond the first stage. The question was not touched 
 in 1871 ; but Mi-. Gladstone, in reply to a question from Sir 
 Henry Hoare, announced the intention of the Government 
 to introduce measures to facilitate the transfer of land, to 
 deal with the law of entail, and to assimilate the devolution 
 of real estates in cases of intestacy to that of personal pro- 
 perty.* Nothing however was done in the following year ; 
 and in 1873 Mr. Locke King, despairing apparently of the 
 ability of the Government to fulfil its promise, determined 
 once more to try the fortune of a private member. Circum- 
 stances were unfavourable to the attempt ; the Parliament 
 was moribmid, while the Ministiy had lost all its popularity 
 and nearly all its vigour. Mr. King failed to secure a day 
 for the discussion of his Bill ; and before another Parliament 
 
 * Hansard, Vul. CCVI., 1905. 
 
149 
 
 met Mr. Disraeli had succeeded Mr. Gladstone as First Lord 
 of the Treasury. Mr. King himself was not among the 
 members of the new House ; and the measure which he had 
 so perseveringly advocated, like many other measures of 
 importance, in favour of which there is no general agitation, 
 has not been included in the legislative programme of the 
 present Government. It was however revived last year ; a 
 Bill, similar to those identified with the name of Mr. Locke 
 King, was introduced by Mr. Potter ; and it came on for 
 second reading on the 28th of June. The Attorney- 
 General made a rather weak speech against the motion ; 
 and it was rejected in a House of nearly four hundred 
 Members by the somewhat small majority of thirty -iive. 
 
 The view which I have endeavoured to support in the 
 present section may be summed up in very few words. 
 While the Custom of Primogeniture on the whole is bene- 
 ficial, the Law of Primogeniture is on the whole pernicious. 
 In very many cases it fails to carry out the wishes of those 
 whose intentions it professes to interpret; and it by no 
 means rarely happens that it works grievous wi-ong to a 
 very deserving class. So far from the retention of all that 
 it is good in the Custom depending on the maintenance of 
 the Law, which is the reverse of good, the cause of the 
 former is really weakened by its liability to be carelessly 
 identified or wilfully confused with that of the latter ; and 
 while the assimilation of the law of realty to that of 
 personalty in all cases is a measure of which the expediency 
 is open to question, their assimilation, in the event of 
 intestacy, is a reform of which the principle has been 
 affirmed by the House of Commons, and which we have a 
 right to expect from any future Liberal Administration 
 which deserves the name. 
 
150 
 
 Section VII. — On the Policy of Change in the Land 
 
 Laws. 
 
 Quid leges sine moribus 
 vanse proficiunt 1 — Hor. Carm. III. 24. 
 
 The few considerations which I have reserved for the 
 concluding section of this essay may be fitly prefaced by a 
 final quotation from De Tocqueville : — 
 
 Je m'^tonne que les publioistes anoiena et modemes n'aient pas 
 attribue aux lois sur les successions une plus grande influence dans la 
 marohe des affaires humaines. Ces lois ^ppartiennent, il est vrai, a 
 I'ordre civil ; mais elles devraient gtre placdes en tSte de toutes les 
 institutions politiques ; car elles influent incroyablement sur I'^tat social 
 des peuples, dont les lois politiques ne sont que I'expression. Biles out 
 de plus une manifere sftre et uniforme d'op^rer sur la sooiete ; elles 
 saisissent en quelque sorte les generations avant leur naissance. Par 
 elles I'homme eat arm^ d'un pouvoir presque divin sur I'avenir de ses 
 semblables. Le legialateur rhgle une fois la successiorx des citoyens, et il 
 se repose pendant des sifeoles : le mouvement donn^ a son oeuvre, il pent 
 en retirer la main, la maobine agit par sea propres forces et ae dirige 
 comme d'elle-mSme vers un but indiqu^ d'avance. Conatituee d'une 
 certaine mani^re, elle r^unit, elle concentre, elle groupe autour de 
 quelques tStes la propriete, et bientot aprfes le pouvoir ; elle fait jaillir 
 en quelque sorte I'ariatocratie du aol. Conduite par d'autrea principes, 
 et lanc^e dans une autre voie, son action est plus rapide encore ; elle 
 divise, elle partage, elle diaadmine les Mens et la puisaance ; il arrive 
 quelquefois alors, qu'on est effray^ de la rapidity de sa marcbe ; desespe- 
 rant d'en arrfiter le mouvement, on cherche du moins a cr^er devant 
 eUes des difficultds et des obstacles ; on veut contre-balancer aon action 
 par des efforts contraires ; soina inutiles ! elle broie, ou fait voler en 
 eclats tout ce qui ae rencontre sur son passage ; elle s'^lfeve et retombe 
 incessamment sur le sol jusqu'a ce qu'il ne pr&ente plus a la vue qu'une 
 poussidre mouvante et impalpable, sur laquelle s'asseoit la d^mocratie. 
 
 Chez lea peuples oil la loi des successions est fondee sur le droit de 
 primogeniture, les domaines territoriaux passent le plus souvent de 
 generations en generations sans se diviser. II resulte de la que I'esprit 
 de famille se materialise en quelque sorte dans la terre. La famille 
 represente la terre, la terre represente la famille ; elle perpetue son 
 nom, son origine, sa gloire, sa puisaance, ses vertus. C'eat un temoin 
 imperiasable du passe et un gage precieux de I'existence a venir.* 
 
 This striking passage written by one the soundness of 
 
 whose political instincts, and the accuracy of whose prog- 
 
 ' Be la Democratic en Amdrlquc, Vol. I. pp. 7G-7!.i. 
 
151 
 
 nostications, have been in so many respects verified by 
 subsequent experience, and by one to whom none will 
 attribute incapacity to appreciate the numerous merits of 
 democracy, assuredly deserves the mature consideration of 
 all who feel disposed to lend their advocacy to any sweeping 
 alterations in the English land law. The methods by which 
 the enjoyment, the distribution, and the devolution of landed 
 property are regulated and controlled in any state are essen- 
 tially matters of public policy ; and I have endeavoured to 
 indicate as strongly as possible my sense of this fact by plac- 
 ingonthe title-page of this essay a sentence from Montesquieu, 
 in which the principle is emphatically asserted. But there 
 is no matter upon which statesmen may be called to legislate 
 which more imperatively requires ample recognition on their 
 part of the immense responsibility which proposals to change 
 the law involve. A revival of the famous condition which 
 the wisdom of the ancient Locrian legislator is said to have 
 imposed on would-be reformers of his code would scarcely be 
 consonant with the refined sentiments of the nineteenth 
 century ; but if there is any case in which alterations in the 
 law should be efiected with utmost caution and deliberation, 
 it arises when the law which it is desired to modify deter- 
 mines the system of tenure of the soil. In dealing with such 
 matters, it is no difiicult task to cloak with the specious 
 designation of reform what history may in the sequel pro- 
 nounce to have been really revolution ; and the effects of a 
 revolution in the law of property must almost inevitably 
 extend beyond the range of calculation which its authors can 
 command. Mischief in this direction, as De Tocqueville 
 urges, once wrought becomes irreparable ; it is impossible to 
 arrest the pulverising machine once set in motion ; of the 
 progress of democracy it may be predicated as an invariable 
 law, vires acquirit eitndo. 
 
 Those who believe the constitutional system under which 
 we live — a system which the admirers of monarchical or of 
 republican government, of aristocracy or of democracy, may 
 all claim, with no small measure of truth, as one in con- 
 formity with their respective views — to be on the whole best 
 
152 
 
 suited to the requirements and sentiments of our population, 
 will hesitate, will " think thrice " and perhaps more than 
 thrice, hefore' they assent to any proposal, such as that for 
 the abolition of the liberty of entailing, or the prescription 
 of some plan for the compulsory distribution of landed pro- 
 perty, which will by its operation destroy the custom of 
 Primogeniture. Those too who believe that the march of 
 democracy in England is in other directions already far too 
 rapid, and that there is in these days a great and increasing 
 danger of the destruction, through a fanatical pursuit of a 
 chimerical equality, of all true liberty and all that is valuable 
 in individual freedom, will probably deem it their duty to 
 oppose with all their power a subversion of the land-laws 
 which has for its ostentatiously proclaimed object the 
 advancement of the democratic principle. Those lastly who 
 hold, and not without reason, that the existence of a culti- 
 vated class of hereditary landowners, of gentle blood, is one 
 of the best securities for culture, and the main obstacle which 
 at present exists to the unquestioned supremacy of a vulgar 
 plutocracy, and the consequent establishment of a condition 
 of life and tone of social opinion in which wealth, no matter 
 how acquired, is considered the one thing needful — a con- 
 tingency scarcely less disastrous and even more immediately 
 dangerous than the complete triumph of the ochlocratic* 
 theory — will think no exertions too great to maintain an 
 order which, on the whole, regards manners as better than 
 money, and cultured refinement as a more precious possession 
 than sordid and dubious wealth. 
 
 It has net seemed necessary in this essay to advert to 
 schemes for the confiscation of the " unearned increment" of 
 land, or the assumption by the State of the active rights of 
 ownership of the soil. I trust I have been justified in 
 regarding such suggestions as outside the region of practical 
 politics. I have confined myself to the examination, neces- 
 sarily brief and imperfect, of proposals which are advocated 
 every day, and which a sudden revulsion of public feeling 
 
 * I venture to avail myself of the word which Polybius (6, i, 6) employs to 
 denote the worst and basest type of democratic government. 
 
153 
 
 from its present acquiescence in the inactivity of the legis- 
 lature — a reaction which is certain sooner or later to occur — 
 may at any time bring under the consideration of the 
 sovereign power. My principal object has been to shew that 
 any change in the custom of Primogeniture can only be 
 justified by the production of irrefragable evidence that 
 Primogeniture, as an institution, is economically, politically, 
 or socially pernicious ; and that, so far from such proof 
 having as yet been furnished, a dispassionate consideration 
 seems to point to the conclusion that the beneficial results 
 which in those directions have been derived from that custom 
 are extremely great. 
 
 The system of succession is indubitably a matter to be 
 determined and prescribed by law ; but it may be added that 
 there is no more certain sign of the healthy condition of a 
 State than the amount of liberty in this respect which the 
 law is able to concede to the individual subject. The fact, 
 if it be a fact, that such liberty is in isolated cases perverted 
 and abused is no sufficient argument for its general with- 
 drawal. In other words, this matter is precisely one of those 
 in which positive law ought as far as possible to be regulated 
 by the positive morality of the community, and especially of 
 that particular class which alone is directly aifected by the 
 law. Where public opinion on the whole performs its duties 
 well, it is by far the best course to abstain from interfering 
 with it by law, even if the interference be intended not to 
 weaken but to support. Neither would it be correct to 
 suppose that public opinion on these points is unalterably 
 fixed ; it certainly exercises a very active influence, but its 
 tendency is far from being rigidly imiform or constant. If 
 experience shows that any class is periodically guilty of 
 actions which the enlightened judgment of the community 
 condemns, that judgment will not be slack in making its 
 voice heard, and in calling where necessary for legal aid to 
 remedy habitual injustice. In particular, as Mr Sidgwick 
 observes in his Methods of Ethics, the duties of the owners 
 of property to their kindred are matters on which "common- 
 sense morality" is peculiarly liable to fluctuations. Not 
 
 M 
 
154 
 
 many years ago a childless testator was expected to leave 
 the bulk of his property to his next of kin ; but no 
 such "claim of consanguinity" appears at present to be 
 recognised as binding. A time perhaps may come when 
 the obligations of parents in this respect to their own 
 offspring will, under some circumstances, be held to be less 
 stringent than they are now considered* It may even 
 happen that in process of time, as new feelings spring up 
 and old sentiments lose their force, the Custom of Primo- 
 geniture may gradually cease to be a custom. In all these 
 cases there seems to be the strongest prima facie reason for 
 leaving the general moral tone to assert itself without legal 
 aid or hindrance ; and this argument acquires additional 
 strength, from the point of view of the economist, when we 
 take into consideration the undoubted fact that a free liberty 
 of testamentary bequest, within reasonable limits, forms one 
 of the most powerful incentives to prudence and thrift, to 
 industry and enterprise, in short to all those qualities which 
 tend to the accumulation of wealth and the prosperity of a 
 State. 
 
 " With respect to progressive societies," writes Sir Henry 
 Maine,"f" " it may be laid down that social necessities and 
 social opinion are always more or less in advance of Law. 
 
 * " Or again we may take an instance where the alteration is perhaps actually 
 going on — the claims of kindred in respect of bequest. We should now com- 
 monly think that a man ought to leave his property to his children, unless they 
 had shewn themselves undeserving ; hut if he has no children we think he may 
 do what he likes with it, unless any of his brothers or sisters are in poverty, 
 in which case compassion seems to blend with and invigorate the evanescent 
 claim of consanguinity. But in an age not long past a childless man was held 
 to be morally bound to leave his money to his collateral relatives ; and thus we 
 are naturally led to conjecture that, in the not distant fiduref any similar obliga- 
 tion to children — unless in want — will have vanished out of men's minds." 
 First edition, p. 218: cf. p. 221. A further illustration of Mr. Sidgwick's views 
 may be found in the circumstance that in America, at the present day, a man 
 of great wealth — like the late Mr. Stewart, for instance — is expected by 
 strong public feeling to devote a considerable portion of his fortune, either 
 during his life or by his will, to public or charitable objects ; no such feeling 
 however at present exists among ourselves ; though Lord Derby, in a recent 
 speech, seemed to imply that wealthy individuals might not unreasonably be 
 asked to contribute more directly to the revenues of the heavily indebted state 
 which protects their wealth. 
 
 * Ancient Law, p. 24. 
 
155 
 
 We may come indefinitely near to the closing up of the gap 
 between them, but it has a perpetual tendency to' reopen. 
 Law is stable ; the societies we are speaking of are progres- 
 sive. The greater or less happiness of a people depends on 
 the degree of promptitude with which the gulf is narrowed." 
 
 It may perhaps be doubted whether in a very advanced 
 stage of civilisation, such as that which we now enjoy, this 
 proposition is altogether and uniformly true. It is indeed 
 most advisable that law should foUow as closely as possible 
 on the footsteps of morality; but it may be questioned 
 whether in modern society it does not exhibit a tendency not 
 merely to come up with it but to pass it by. " The closing 
 of the gap " is a worthy object of the highest ambition of a 
 genuine statesman ; but it is of even greater importance to 
 maintain the respective positions of the two agencies of 
 progress, to leave morality in the place of pioneer, and to 
 beware that law does not usurp the character of an officioiis 
 guide, instead of contenting itself "\^'ith the sphere and func- 
 tions of a faithful follower. In these days in which legisla- 
 tion is so active, and so much of the highest intellect of the 
 country is devoted to suggesting and promoting the ameliora- 
 tion of its laws, the practical danger of positive law advanc- 
 ing too rapidly for current morality is one which we cannot 
 aflford to overlook ; and it is a danger of which the results, 
 if it were suffered to atfect our system of land laws, would 
 assuredly be peculiarly calamitous. 
 
 It only remains to state that the conclusions expressed in 
 this essay are the result of a perfectly unbiassed considera- 
 tion of its subject. The attention which the writer, before 
 the establishment of the Yorke Prize, had devoted to the 
 subject of Primogeniture was chiefly directed to its historical 
 evolution ; and this circumstance must be considered mainly 
 responsible for the discussion at the beginning of the essay 
 of the origin of that institution at a length which perhaps 
 requires apology. The writer, on approaching the examina- 
 tion of its effects on the tenure of landed property, was 
 fully prepared to find them so unsatisfactory as to furnish 
 a valid argument for its abolition ; but he has been unable 
 
156 
 
 to arrive at such a result; and accordingly has not hesitated 
 to express the conclusions to which he has irresistibly been 
 led. It well may be that the views here urged are not 
 altogether such as would have commended themselves to 
 the judgment of the munificent founder of the prize ; on 
 this subject the writer has no positive information ; but 
 there is one point as to which he feels entire confidence, 
 Mr. Yorke doubtless hoped, when he determined to stimu- 
 late by his liberality the study of the law of real property, 
 and especially of the laws of succession, in the University of 
 Cambridge, that those who were attracted to that study by 
 his generous bequest would not hesitate to give expression 
 to their own deliberate opinions ; and that if they felt con- 
 strained to disagree with what may perhaps have been his 
 own feelings and ideas they would borrow and adapt the 
 well-known phrase of a great essayist of old — amiciis ille, 
 sed magis arnica Veritas. 
 
INDEX. 
 
 A6R 
 
 Agrarian laws of Eome, their 
 object, 75. 
 
 Agricultural improvements, effected 
 by feudalism, 42. Agricultural 
 system of ancient Italy, causes of 
 its ruin, 75. Agricultural Hold- 
 ings Act, the, 107-109. 
 
 Aids, feudal, their connection with 
 Primogeniture, 37, 38. 
 
 Alienation of land, early restrictions 
 on, in England, 12. Permitted 
 before the Conquest, 31. By 
 feudal tenant, at first checked by 
 arbitrary fines, 39. By King's 
 tenants in capite, 39. Eeasons 
 of objection to it by feudal lord, 
 40, 41. Eflbrts to re-establish 
 right of alienating after j' the 
 Conquest, 43. Permitted inUr 
 mvos by Quia emptores, 45-47. 
 Most complete power of alienat- 
 ing existed under the Tudor and 
 Stuart monarchies, 60. Un- 
 favourably regarded by Greek 
 legislators, 74. 
 
 Allod, descent of the German, 11. 
 
 American Union, limitation of en- 
 tails in, 102. Comparative inde- 
 pendence of children in, 118. 
 
 Aristotle, his account of Greet 
 agrarian legislation, 72-74. 
 
 Assimilation, proposed, of law of 
 realty to that of personalty, HI. 
 Ditto, in case of intestate succes- 
 sion, 136, seqq. View of Real 
 Property Commissioners on this 
 point, 137. Indirect effects of 
 such assimilation, 144, 145. 
 
 Athenian law of succession, 9. 
 Qualified Primogeniture at 
 Athens, 20. 
 
 Attornment, at first could not be 
 compelled; now unnecessary, 39. 
 
 COM 
 
 Austin, Mr. John, on compulsory 
 partition of estates, 92, 93. Ap- 
 proves of large holdings, 93. See 
 French. 
 
 Austria, proportion of agricultural 
 to total population, and produc- 
 tiveness of soil, 83. Succession 
 law of, 99. Entails occasionally 
 permitted, 99. 
 
 Bavaria, a customary system of 
 Primogeniture preserves holdings 
 of peasant proprietors in, 98, 99. 
 
 Belgium, proportion of agricultural 
 to total population, and produc- 
 tiveness of soil, 83. Excessive 
 ■ subdivision of land in, 99, 100. 
 
 Benefices, origin of modern Primo- 
 geniture among the Beneficiaries, 
 21, 22. Their history compared 
 with that of the Zemindaries, 22. 
 Their historical relation to feuds, 
 28, 29. 
 
 Blackstone's description of the 
 elTeots of strict entails, 55, 56. 
 
 Bocland, 12. Distinguished from 
 alienable acquisitions, 47. 
 
 Bremen, law of intestacy at, 146. 
 
 Bright, Mr., his speech at Eoch- 
 dale, 81. 
 
 Celibacy, reasons for its prohibi- 
 tion in ancient society, 16, 17. 
 
 Charters, the Anglo-Saxon, 32. 
 
 Code Napoleon, the, restored sub- 
 stitutions within narrow limits, 
 53. Its rules subversive of large 
 estates, 75. Established per- 
 petual entails, 88, 89. 
 
 Collusive recoveries of entailed 
 estates, 57, 58. 
 
 Companions of the King, their 
 status, 28. 
 
158 
 
 CON 
 
 INDEX. 
 
 Consanguinity, ancient society, 
 
 baaed on, 14. 
 Contingent remainders, 61, 62. 
 Continuity of the ancient family, 
 
 Comwallis, Lord, his permanent 
 settlements, 7. 
 
 Corvees, the, 87. 
 
 Coulanges, M. F. de., on the ancient 
 family, 15. His view of the 
 effects of religious feeling, 15, 16. 
 
 Democract, and plutocracy, dangers 
 of their progress in England, 152. 
 
 De Tocqueville, M., on subdivision 
 of French estates, 89. On the 
 effects of democracy on paternal 
 power, 118. His explanation of 
 democratic form of civil legisla- 
 tion of modern France, 119. 
 Remarks on the evil of a wealthy 
 aristocracy without ' political 
 privileges, 129. On the influence 
 of succession laws on Society, 
 150. 
 
 Domesday Book,^cause3 which led to 
 its compilation, 33, 34. The New. 
 78. 
 
 Economical utility of Primogeniture 
 in early times, 41, 42. 
 
 Eldest son, his religious duties as 
 representative of the family in 
 India, Greece, and Eome, 19. 
 His representative and political 
 privileges in India, Germany, 
 Scotland, and Ireland, 20. Sub- 
 stituted in deeds for 'heir,' 61. 
 His position in a settled estate, 
 63. 
 
 Emphyteusis, origin and develop- 
 ment of system of, 26, 27 
 
 England and France, their compara- 
 tive productiveness of soil, 82, 
 83. 
 
 Entails, not vmknown at Home, 51. 
 In England since De donis, 53. 
 Their history in Scotland, 63-68. 
 Scotch, their effect on agriculture, 
 68, 69. System of perpetual en- 
 tails established by the Code 
 Napoleon, 88, 89. Suggested 
 abolition of, accompanied by full 
 liberty of conveyance andbequest, 
 101. Said to prejudice landlord's 
 freedom and tenant's security, 
 104-107. 
 
 Escheat,rule of, indirectlysupported 
 Primogeniture, 40. 
 
 Pacdltt of Advocates, the, opposed 
 perpetual entails, 66. 
 
 Family, the ancient, its connection 
 with the land, 14. View of M. 
 de Coulanges, 15, 16. Its con- 
 tinuity, 17. Germ of primogeni- 
 ture in position of eldest son, 18. 
 Family relations, how affected by 
 custom of Primogeniture, 115, 
 116. By compulsory partition and 
 by free liberty of bequest, 117. 
 
 Fee, its etymology, 29. 
 
 Female infanticide, its effects on 
 family life, 3. 
 
 Feoffment to purchasers, his heirs 
 and assigns, subsequently fur- 
 nished a general rule of construc- 
 tion, 48. 
 
 Feetail, dates from De donu, 49. 
 See Entails. 
 
 Feuda, individiia, 36. Fova ut 
 antiqua, 43. 
 
 Feudal system of tenure, its charac- 
 teristics, 24. Its connection with 
 Koman law, 25-27. Introduced 
 into England by the Normans, 
 27. Its destruction in France at 
 the revolution, 86, 87. 
 
 Fines, their close connection with 
 Primogeniture, 39. Their history, 
 58, 59. 
 
 Forfeitures of Scotch estates, 65. 
 
 France, see England. Subdivision 
 of estates in, 88-91. The popu- 
 lation of, almost stationary, 97. 
 
 Frank-marriage and frankalmoign, 
 46, 47. 
 
 Frederick Barbarossa, constitution 
 of, 36. 
 
 Freeman, Mr., his explanation of 
 the non-existence in England of 
 any class of nobles, 121, 122. 
 
 Free trade, feeling against in France, 
 96. 
 
 French succession law, political 
 origin of the modern, 86, 87. 
 Austin's remarks on its probable 
 effects, 92-95. 
 
 Garnier, M., on price of small 
 
 estates in France, 92. 
 Gastrell, Mr. Harris, on land-tenure 
 
 in Prussia, 97, 98. 
 
INDEX. 
 
 159 
 
 GAV 
 
 Gavelkind, Irish, 12. In Kent, 
 80, n., 144, n. 
 
 Greece, ancient, method of regulat- 
 ing land-tenure in, 72-74. 
 
 Green, Mr. J. E., on confiscations 
 eflfeoted by King William, 34, 35. 
 
 Heirs of landowners, efi'eots of rule 
 of Primogeniture on, 116. 
 
 Hereditary peerage, the, attacks on 
 its legislative power, 129. 
 
 Holland, proportion of its agricul- 
 tural to total population, and 
 productiveness of soil, 83. Feel- 
 ing in, opposed to sub-division of 
 estates, 100. 
 
 Indian laws of succession, 4. Par- 
 tition not usual ; when it occurred, 
 the land divided into equal lots, 
 5. Tenure by the Zemindars, 
 85-7. Indian laws do not recog- 
 nise wills, 8. 
 
 Intestacy, equal distribution on, in 
 India, Greece, Germany, England 
 and Ireland, 13. Devolution of 
 realty and personalty on, 134. 
 Dislike of, among Eoman citizens, 
 143. Succession on, in America 
 and at Bremen, 146. 
 
 Irish gavelkind and tanistry, 12. 
 
 Italy, proportion of its agricultural 
 to total population, and produc- 
 tiveness of soU, 83. 
 
 Joint ownership of land, its effects 
 
 on agriculture, 41, 42. 
 Justinian, legislation of, adverse to 
 
 entails, 52 
 
 Keltic Primogeniture, 20. 
 
 King, Mr. Locke, his Real Estate 
 
 Intestacy Bills, 146-148. 
 Knight's tenure, descent of land 
 
 under, 35. Personal service 
 
 attached to, 40. Abolition of 
 
 Knight's service, 59. 
 
 Landed property, its tenure and 
 inheritance before the Conquest, 
 31. Held of the Crown through- 
 out the Kingdom, 35. Eight 
 of the State to determine condi- 
 tions of its tenure, 70. State 
 regulations concerning, in ancient 
 Greece, 72-74. Comparatively 
 small number of proprietors in 
 
 ORD 
 
 England, 76. Vast number in 
 France, 77. Parliamentary Ee- 
 turn of English landowners, 78- 
 80. 
 
 Leslie, Mr. Cliffe, on French agri- 
 cultural system, 91. 
 
 Local self - government, English 
 system of, depends on custom of 
 Primogeniture, 130, 131. 
 
 Lycurgean partition, the alleged, in 
 Sparta, 73. 
 
 Lytton, Lord, on Austrian agricul- 
 ture, 99. 
 
 Maine, Sir H., on relation of law 
 to social opinion, 154, 155. See 
 also references, passim. 
 
 Manu, laws of, recognise a kind of 
 Primogeniture, 20. 
 
 Maritagium, right of, recognised by 
 Statute of Merton, 39. 
 
 Marriage,' restricted in Wurtem- 
 burg by communal regulations, 
 98. 
 
 McCulloch, Mr. J. E., believes a 
 system of Primogeniture to have 
 existed at Eome, 10. Eemarks 
 on entailed land in Scotland, 67. 
 
 McLennan, Mr., on primitive mar- 
 riage, 3. 
 
 Metayer tenantry, their origin, 27. 
 Contemporary prevalence of the 
 system in France, 91. 
 
 Military tenures, question whether 
 they were known in England 
 before the Conquest, 30. Mili- 
 tary testament, origin of Eoman 
 entails in, 51. 
 
 Mir, the Eussian, its system of 
 cultivation, 42. 
 
 Monogamy preceded by polyandry, 
 
 o. 
 
 Montalembert on entails in Eng- 
 land, 114. 
 
 Morality, public, its influence on 
 systems of succession, 153. 
 
 Neate, Mr., on proportion of land 
 affected by De donis and by 
 Quia emptores respectively, 54. 
 
 Nobility, no order of, exists in 
 England, 121. In France, 123- 
 125. The noble prefix de fraudu- 
 lently assumed, 124. 
 
 Ordonnance d'Orleans, limited 
 duration of substitutions, 53. 
 
160 
 
 INDEX. 
 
 Oxford and Cambridge, oollegea at, 
 founded subsequently to De 
 donis, 55. 
 
 Oxylua, his scheme for perpetuating 
 ancestral estates, 74. 
 
 Paeliambntary Keturn of owners 
 of land, 78-80. Debates on 
 Intestate Succession to Realty, 
 146-149. 
 
 Peasant proprietors in Trance, 
 their supposed security, 95, 96. 
 
 Peerage, the English, an elastic 
 body, 123. Hereditary, its legis- 
 lative powers attacked, 129. 
 
 Permanent Settlements of Lord 
 Cornwallis, 7. 
 
 Perpetual entails in Scotland, 66. 
 
 Personalty, law of, proposed assimi- 
 lation of law of realty to. 111. 
 Origin of the distinction, 112. 
 Distribution of, on intestacy, 135, 
 136. 
 
 Phaleas of Chalcedon, his agrarian 
 law, 73. 
 
 Plato objected to disposition of 
 landed property by will, 11. 
 Suggests a limit of inequality in 
 property, 74. 
 
 Polyandry, monogamy preceded by, 
 3. 
 
 Population, increase of, a test of 
 national prosperity, 96. Very 
 small increase in recent years in 
 France, 97. 
 
 Portugal, effects of excessive sub- 
 division in, 101. 
 
 Posthumous life of the eponymous 
 progenitor ; influence of belief in, 
 15, 16. 
 
 Prima seisina, 38. 
 
 Primitive family life, origin' of 
 Primogeniture in, 2. 
 
 Proprietary privileges of eldest son, 
 disappear in more advanced stage 
 of social life, 4. Growth of the 
 Chief's proprietary rights, 21. 
 
 Protection, demanded by French 
 industry and agriculture, 96. 
 
 Prussia, proportion of agricultural 
 to total population, and produc- 
 tiveness of soil in, 83. Its agri- 
 cultural system, 97. 
 
 Eealty and personalty, distinction 
 between, occasionally merely 
 technical, 140. 
 
 SUB 
 
 Recoveries, collusive, 57, 58. 
 
 Register, public, of entails in Scot- 
 land, 64. 
 
 Reliefs, their effect on inheritance 
 of eldest son, 38. 
 
 Roman agrarian legislation, its 
 object, 75. 
 
 Russian Mir, the, its system of 
 cultivation, 42. Proportion of 
 agricultural to total population, 
 and productiveness of soil, 83. 
 Russian nobility, the, 125-127. 
 Only distinction in Russia that 
 of official rank, 126. 
 
 Sacra, the, at Rome and in India, 
 18. 
 
 Scotch entails, their history, 63-68. 
 First introduced in 1648, 64. 
 Scotch tenant in tail, Ms present 
 position, 68. 
 
 Scutage or escuage, commutation of 
 personal service for, 43. ' 
 
 Semitic custom of primogeniture, 1. 
 
 Services annexed to tenure, and 
 services annexed to land, 33. 
 
 Settlement, a modern, its nature 
 and effects, 63. Of personalty, 
 112, 113. 
 
 Shelley's case, 60. 
 
 Sidgwiok, Mr. H., on pecuniary 
 obligations to kindred, as deter- 
 mined by common sense morality, 
 153, 154. 
 
 Smith, Adam, on Scotch entails, 67. 
 
 Socage, descent of socage lands, 35, 
 36. 
 
 Social value of a class of hereditary 
 landowners, 131, 132. 
 
 Society, ancient, based on consan- 
 guinity, 14. 
 
 Spain, proportion of agricultural to 
 total population, and productive- 
 ness of soU in, 83. Large extent 
 of soil still subject to entail in, 
 101. 
 
 Spartan system of land tenure, 72, 
 73. 
 
 Stubbs, Professor, on relation of 
 military service to tenure before 
 the Conquest, 32, 33. 
 
 Subdivision of soil, evils of exces- 
 sive, 84, 85. 
 
 Subinfeudation, at first an integral 
 part of the feudal sj'stem ; not 
 permitted to tenants in capite, 44. 
 Abolished by Quia emptores, 45. 
 
161 
 
 Its effects on the heir's prospects. 
 
 46. 
 Substitutions, vulgar and pupillar, 
 
 were not entails, 51. In France, 
 
 52, 53. 
 Succession laws, in India, 4, 5. At 
 
 Athens, Sparta and Rome, 9-11. 
 
 In France, political origin of the 
 
 modern, 86, 87. The French, 
 
 widely imitated by other European 
 
 States, 88. De Tooqueville on 
 
 their importance, 150. 
 
 Taltaeum's case, 57. 
 
 Tanistry in Ireland, 12. 
 
 Ten thousand acres, nixmber of 
 owners of, in England, 81. 
 
 Tenants in capite, 35. Alienation 
 by, 39, 40. Subinfeudation by, 
 not permitted, 44. 
 
 Tenure of landed property, its con- 
 ditions, a matter .of public policy, 
 151. 
 
 Testamentary power, introduced by 
 English courts in Lower Bengal, 8. 
 Ancient restrictions on its exer- 
 cise, in India and at Athens, 11. 
 Plato's objection to its exercise, 
 11. Plenary, supposed to have 
 been conceded by the XII. tables, 
 13, 14. Exercised in England 
 before the Conquest, 31. Restored 
 by Statute of Wills, 59. Origi- 
 nally unknown at Rome, 143. 
 
 Transfer of land, attempts to facili- 
 tate ; need of a general system of 
 registration and simplification of 
 forms, 109, 110. 
 
 ZF.M 
 
 Trinoda necessiias, the, 32. 
 Trusts, express and tacit, 52. 
 
 Uses, doctrine of, first developed in 
 the time of Edward III., 55, 
 
 ViCTOEiA, aspect of the land-tax 
 question in, 71. 
 
 Wardship, its theory and limits, 
 38. 
 
 West, Mr. Sackville, on subdivision 
 of estates in France, 90. 
 
 William the Conqueror, extensive 
 redistribution of land effected by, 
 34. •:-■ 
 
 Wills, see Testamentary Power. 
 
 Wurtemburg, succession law of, 98. 
 Qualified custom of primogeniture 
 in small holdings, 98. Marriage 
 restricted by communal regula- 
 tions, 98. 
 
 Wyndham, Mr., on partition of small 
 holdings in Belgium, 100. 
 
 YoRKE, Mr. C, on forfeitures for 
 treason, 65. 
 
 Younger sons, how afiected by 
 Primogeniture ; advantages en- 
 joyed by the cadet of an ancient 
 family, 119-121. 
 
 Zemindars and Talookdars, their 
 origin and position, 5, 6. History 
 of their power, 6. Primogeniture 
 among the Zemindars unfavour- 
 ably regarded by British admini- 
 strators, 6, 7.