I have said that I regard the early feudal confederacies asdescended from an archaic form of the Family, and as wearing astrong resemblance to it. But then in the ancient world, and inthe societies which have not passed through the crucible offeudalism, the Primogeniture which seems to have prevailed nevertransformed itself into the Primogeniture of the later feudalEurope. When the group of kinsmen ceased to be governed through aseries of generations by a hereditary chief, the domain which hadbeen managed for all appears to have been equally divided amongall. Why did this not occur in the feudal world? If during theconfusions of the first feudal period the eldest son held theland for the behoof of the whole family, why was it that whenfeudal Europe had consolidated itself, and regular communitieswere again established, the whole family did not resume thatcapacity for equal inheritance which had belonged to Roman andGerman alike? The key which unlocks this difficulty has rarelybeen seized by the writers who occupy themselves in tracing thegenealogy of Feudalism. They perceive the materials of the feudalinstitutions, but they miss the cement. The ideas and socialforms which contributed to the formation of the system wereunquestionably barbarian and archaic, but, as soon as Courts andlawyers were called in to interpret and define it, the principlesof interpretation which they applied to it were those of thelatest Roman jurisprudence, and were therefore excessivelyrefined and matured. In a patriarchally governed society, theeldest son may succeed to the government of the Agnatic group,and to the absolute disposal of its property. But he is nottherefore a true proprietor. He has correlative duties notinvolved in the conception of proprietorship, but quite undefinedand quite incapable of definition. The later Roman jurisprudence,however, like our own law, looked upon uncontrolled power overproperty as equivalent to ownership, and did not, and, in fact,could not, take notice of liabilities of such a kind, that thevery conception of them belonged to a period anterior to regularlaw. The contact of the refined and the barbarous notion hadinevitably for its effect the conversion of the eldest son intolegal proprietor of the inheritance. The clerical and secularlawyers so defined his position from the first; but it was onlyby insensible degrees that the younger brother, fromparticipating on equal terms in all the dangers and enjoyments ofhis kinsman, sank into the priest, the soldier of fortune, or thehanger-on of the mansion. The legal revolution was identical withthat which occurred on a smaller scale, and in quite recenttimes, through the greater part of the Highlands of Scotland.
When called in to determine the legal powers of the chieftainover the domains which gave sustenance to the clan, Scottishjurisprudence had long since passed the point at which it couldtake notice of the vague limitations on completeness of dominionimposed by the claims of the clansmen, and it was inevitabletherefore that it should convert the patrimony of many into theestate of one.
For the sake of simplicity I have called the mode ofsuccession Primogeniture whenever a single son or descendantsucceeds to the authority over a household or society. It isremarkable, however, that in the few very ancient examples whichremain to us of this sort of succession, it is not always theeldest son, in the sense familiar to us, who takes up therepresentation, The form of Primogeniture which has spread overWestern Europe has also been perpetuated among the Hindoos, andthere is every reason to believe that it is the normal form.
Under it, not only the eldest Son, but the eldest line is alwayspreferred. If the eldest son fails, his eldest son has precedencenot only over brothers but over uncles; and, if he too fails, thesame rule is followed in the next generation. But when thesuccession is not merely to civil but to political power, adifficulty may present itself which will appear of greatermagnitude according as the cohesion of society is less perfect.
