III. LAND TENURE 



A. OWNERSHIP 



THE LAW AND CUSTOM OF PRIMOGENITURE 

 By the Honourable George C. Brodrick 



THE right of primogeniture, the most distinctive feature of 

 the EngHsh family system, is partly the creation of law, and 

 partly the growth of custom. It is the growth of custom so far as 

 it has its origin in the voluntary action of feudal lords in making 

 grants of land to be held by knight-service and so far as it now 

 depends on the preference given by parents to eldest sons in 

 wills and settlements of property. It is the creation of law so 

 far as it is the fixed rule of succession to landed estates in case 

 of intestacy ; and so far, moreover, as the custom which prevails 

 in wills and settlements has been determined or favoured by the 

 law. The practice of entailing, which is often associated or con- 

 founded with the right of primogeniture, is theoretically quite 

 independent of that right, since it would be as easy and as con- 

 sistent with legal principles to entail an estate upon the youngest 

 son as to entail it upon the eldest son. Again, the power of 

 settling is theoretically altogether distinct from the power of en- 

 tailing, since it extends to personality as well as to land and 

 might be employed to keep land tied up though entails should 

 be abolished by law. Practically, however, settlements are the 

 medium through which the entailing power is exercised, and 

 form a powerful bulwark of primogeniture, inasmuch as they 

 enable successive heads of families, owing to it their own posi- 

 tion, to secure its maintenance far into the lifetime of an unborn 

 generation. 



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