第67章

The rules of succession which they followed were entirelydetermined by the terms agreed upon between the grantor and thebeneficiary, or imposed by one of them on the weakness of theother. The original tenures were therefore extremely various; notindeed so capriciously variouS as is sometimes asserted, for allwhich have hitherto been described present some combination ofthe modes of succession familiar to Romans and to barbarians, butstill exceedingly miscellaneous. In some of them, the eldest sonand his stock undoubtedly succeeded to the fief before theothers, but such successions, so far from being universal, do noteven appear to have been general. Precisely the same phenomenarecur during that more recent transmutation of European societywhich entirely substituted the feudal form of property for thedomainial (or Roman) and the allodial (or German). The allodswere wholly absorbed by the fiefs. The greater allodialproprietors transformed themselves into feudal lords byconditional alienations of portions of their land to dependants;the smaller sought an escape from the oppressions of thatterrible time by surrendering their property to some powerfulchieftain, and receiving it back at his hands on condition ofservice in his wars. Meantime, that vast mass of the populationof Western Europe whose condition was servile or semi-servile --the Roman and German personal slaves, the Roman coloni and theGerman lidi -- were concurrently absorbed by the feudalorganisation, a few of them assuming a menial relation to thelords, but the greater part receiving land on terms which inthose centuries were considered degrading. The tenures createdduring this era of universal infeudation were as various as theconditions which the tenants made with their new chiefs or wereforced to accept from them. As in the case of the benefices, thesuccession to some, but by no means to all, of the estatesfollowed the rule of Primogeniture. No sooner, however, has thefeudal system prevailed throughout the West, than it becomesevident that Primogeniture has some great advantage over everyother mode of succession. It spread over Europe with remarkablerapidity, the principal instrument of diffusion being FamilySettlements, the Pactes de Famille of France and Haus-Gesetze ofGermany, which universally stipulated that lands held by knightlyservice should descend to the eldest son. Ultimately the lawresigned itself to follow inveterate practice, and we find thatin all the bodies of Customary Law, which were gradually builtup, the eldest son and stock are preferred in the succession toestates of which the tenure is free and military. As to landsheld by servile tenures (and originally all tenures were servilewhich bound the tenant to pay money or bestow manual labour), thesystem of succession prescribed by custom differed greatly indifferent countries and different provinces. The more generalrule was that such lands were divided equally at death among allthe children, but still in some instances the eldest son waspreferred, in some the youngest. But Primogeniture usuallygoverned the inheritance of that class of estates, in somerespects the most important of all, which were held by tenuresthat, like the English Socage, were of later origin than therest, and were neither altogether free nor altogether servile.

The diffusion of Primogeniture is usually accounted for byassigning what are called Feudal reasons for it. It is assertedthat the feudal superior had a better security for the militaryservice he required when the fief descended to a single person,instead of being distributed among a number on the decease of thelast holder. Without denying that this consideration maypartially explain the favour gradually acquired by Primogeniture,I must point out that Primogeniture became a custom of Europemuch more through its popularity with the tenants than throughany advantage it conferred on the lords. For its origin,moreover, the reason given does not account at all. Nothing inlaw springs entirely from a sense of convenience. There arealways certain ideas existing antecedently on which the sense ofconvenience works, and of which it can do no more than form somenew combination; and to find these ideas in the present case isexactly the problem.