THE LAW AND CUSTOM 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 are known to have adopted the feudal system, and it 

 has been abandoned, for the most part, by those countries which 

 have undergone a complete de-feudalising process. Moreover, 

 though we are unable to specify the exact mode whereby 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, 

 "is considered 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 

 one." 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 was 

 everything 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. 

 In communities of the Oriental and old German type, different 

 causes produced the same effect; land was regarded as "a 

 means of subsistence " for all the members of a primitive family 

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

 lord could scarcely have been conceived. Even when the German 

 tribes first conquered the Roman Empire, there is reason to 

 believe that equality was the general principle of division. Each 

 great chief, however, naturally received a larger share, and, being 

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

 retainers on conditions of military service. It is from grants of 

 this kind, and from '" honorary feuds " to which titles of nobility 

 were attached, that primogeniture, as a rule of succession, is held 

 by most jurists to have c^irectly sprung. The original grantee 

 of a fief, unlike the owners of "allodial" property, was indebted 

 to no family law for his new possession. He derived it solely 

 from the bounty of his chief, whose interest it was that it 



