THK LAW AND (TSTOM OF PRIMOGENITURE 355 



feudal institution. It cannot be traced back to an age preceding 

 feudalism ; it was fully established in those countries, and those 

 only, which arc known to have adopted the feudal system, and it 

 has been abandoned, for the most part, by those countries \\hich 

 have undergone a complete de-feudalising process. Men 

 though we arc unable to specify the exact mode wherein this 

 innovation was accomplished in the Dark Ages, we are able to 

 account for it completely by the peculiar circumstances of that 

 warlike and chaotic period. " While land," says Adam Smith, 



>nsidered as the means only of subsistence and enjoyment, 

 the natural law of succession divides it, like them, among all 

 the children of the family ; . . . but when land was considered 

 as the means, not of subsistence merely, but of power and protec- 

 tion, it was thought better that it should descend undivided to 

 fete*" Such is the true historical explanation, as it is also the 

 sound economical explanation, of the rise of primogeniture. In 

 ancient Rome, no less than in ancient Athens, the State 



hing and the individual nothing; public rights dwarfed and 

 overshadowed private rights; and family pride, intense as it was, 

 could not indulge the passion of territorial aggrandisement, lest 

 it should encounter the fierce jealousy of the republican spirit. 

 ! 'inmunities of the Oriental and old German type, different 



I produced the same effect ; land was regarded ; 

 means of subsisted e " f.>r all tin- members of a primitive family 

 or village, and the idea of vassals or tenants holding under a 

 lord could scarcely have been come: . I ven when the German 

 tribes first conquered the Roman Kmpirc, there is reason to 

 U-lieve that equality was the general principle of division. 

 I, however, naturally received a larger share. ;.nd. 

 unable to cultivate the whole of it for himself, granted a part to 

 "ii conditions of milr It is fn-m 



ind, and from "honorary .\huh titles of nobility 



attached, that primogeniture, as a rule -n. is held 



by most jurists to have directlv sprung. The or 

 of a fief, unlike tin- owners <>f "allodial" prop Vl.tcd 



family law for his new possession. He derhed it solely 

 the Ixninty of his chief, whns. 



