THE LAW AND CUSTOM OF PRIMOGENITURE 353 



The so-called law of primogeniture, applicable to inheritance 

 of land ab intestato, is thus stated in Blackstone's " Commen- 

 taries " : "That the male issue shall be admitted before the 

 female, and that, when there are two or more males in equal 

 degree, the eldest only shall inherit, but the females altogether." 

 The right of primogeniture, then, in the descent of land, exclu- 

 sively belongs to eldest sons, and has no place among daughters. 

 This fact, in itself, has a material bearing on its historical origin. 

 The luminous researches of Sir H. Maine into ancient law tend 

 strongly to support the opinion of Blackstone and other authorities, 

 that we owe this institution to feudal society, not in the earlier, 

 but in the later stage of its development. " Primogeniture did 

 not belong to the customs which the barbarians practised on their 

 first establishment within the Roman Empire." It was, indeed, 

 directly at variance with the principles of equality which appear 

 to have regulated all the primitive communities whose organisa- 

 tion, but lately revealed to historical students, furnishes the key 

 to so many social problems otherwise insoluble. Even the patri- 

 arch, though lord of the family possessions, " held thern as 

 trustee for his children and kindred." The male children were 

 recognised both in German and Hindoo jurisprudence as " co- 

 proprietors with their father, and the endowment of the family 

 could not be parted with, except by the consent of all its 

 members." Still less had the eldest son any advantage over the 

 rest, either in those primeval family groups which held their 

 domains in joint ownership, or under that more advanced system 

 of land tenure, where partitions took place on the death of a 

 parent, according to rules indicated by Tacitus with his usual 

 pregnant brevity : " Haeredes successoresque sui cuique liberi, et 

 nullum testamentum : si liberi non sunt, proximus gradus in 

 possessione, fratres, patrui, avunculi." Sir H. Maine, after sum- 

 ming up the evidence on this part of the subject, concludes that 

 '" an absolutely equal division of assets among the male children 

 at death is the practice most usual with society at the period 

 when family dependency is in the first stages of disintegration." 



