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living by taking on himself the sins of the dead, and thence-
forth devoting himself to prayer for their souls : he
corresponds to the Sin-eater of the Welsh border."^

lamentable poor rascal, and lived in a cottage on Ross highway. This
ceremony, though rarely used in our days, yet by some people was observed
in the strictest days of the Presbyterian government."
^ Sikes, British Goblins. Schuyler, Turkestan, ii. 28.



12



178 Origins of English History.



CHAPTER VIII.

CUSTOMS OF INHERITANCE AND FAMILY RELIGION.

Customs foreign to Celtic and Teutonic usage. — Anomalous laws of inheritance. —
Borough-English. — Maincte .—Jiingstcn-Rccht. — Various theories of their origin. —
Their wide extent. — Primitive forms in Wales and Shetland — In Cornwall and
Brittany. — Distribution of Junior-right in England. — South-eastern district. —
Danish towns. — Customs of Kent. — -Of Sussex. — Neighbourhood of London. —
Manor of Taunton-Deane. — Distribution on the Continent. — North-western France
and Flanders. — "Theel-boors"ofEastFriesland. — Germany — Bornholm — Russia.
• — Attempts to explain the custom. — Comparison with early forms of primogeni-
ture. — "Principals" or Preciput. — Eldest daughter. — The Law of the Sword. —
Glanville. — Bracton. — Old primogeniture customs in the Pays de Caiix — Ireland
— Norway — Athens.— Religious origin. — Priesthood of the eldest.— Laws of
Manu. — The domestic religion and its survivals. — The fire. — The remembrance-
bowl. — Household spirits. — Feast of All Souls. — " Brande Erbe." — Theory of
analogous origin of the Junior-right. — Early extension of Ural-Altaic peoples. —
Mongolian and Ugrian junior-right. — Tchudic household superstitions. — The
Mandrake.

ONE might collect a large assemblage of English
country customs having no apparent affinity to
Celtic or Teutonic usages, some living still in remote and
simple districts, some dying and some dead, but all im-
portant and interesting to the student of ancient history.
There are ceremonies of an old idolatry and relics of
the worship of animals which will be more conveniently
considered in a chapter devoted to mythology. Others
are mere remnants of old codes and dooms of powers and
principalities that have long since been merged in the
modern kingdom ; and for some no origin can even be
guessed.

We shall confine our attention for the present to that
anomalous class of usages, which in England are commonly



Origins of English History. 179

called Borough-English and are known abroad by such
names as Mainett and Jiingstcn-RecJit. The English
name is taken from a local word used in a trial of the time
of Edward III. It appears from the report in the Year-
book for the first year of that reign that in Nottingham
there were then two tenures of land, called hnrgh-Engloyes
and burgh-Fraiincoyes : "and the usages of these tenures
were such, that all the tenements whereof the ancestor
died seised in burgh- Engloyes ought to descend to the
youngest son, and all the tenements in hiirgh-Fraiincoyes
to the eldest son as at the common law."^ It is said that
Nottingham remained divided as late as 171 3 into the
English-borough and the French-borough, the customs of
descent remaining distinct in each; and even at the present
time there are similar customs in that neighbourhood.^

The law-courts take official notice of the strict custom of
borough-English, by which the benefit is confined to the
youngest son, and the name ought not in theory to be
applied to any other usage. There are, however, many
analogous rights additions and enlargements springing out of
the original custom, by w^hich a preference or pre-eminence
in birthright is secured to remoter heirs. Such a custom
establishes a new principle w-hich is ever ready to extend
itself until a new check is devised ; and there are at any

^ Yearbook, i Edw. III. 12 a; Robinson's "Gavelkind," Appendix.

^ Corner, in his essay on " The custom of Borough-English in Sussex,"
notices the prevalence of the custom in Scrooby and the Soke of Southwell
in Nottinghamshire. The custom in the last-named district was as follows : —
If a tenant had children by two or more wives, the youngest son of the first
wife, or in default of sons her youngest daughter, took the family inherit-
ance. If lands were purchased during a subsequent marriage, the youngest
son of that marriage succeeded to the purchased lands. Complete Copy-
holder, 5065 Hazlitt, Tenures of Land.

12 *



./



i8o Origins of English History.

rate scores, if not hundreds, of little districts in England
where the right has extended to females, — the youngest of
the daughters or, as the case maybe, the youngest sister or
aunt being preferred above the other coheiresses.

These extensions of the custom are all called " borough-
English" by analogy to the principal usage, but they
should be classified under some more general name. It is
not easy, however, to find the appropriate word. We
have a choice between " ultimogeniture," the awkward
term proposed by the Real Property Commissioners of the
last generation, and such foreign forms as y^iingsten-Recht,
and jfiiveigneric^ which can hardly be excelled for
simplicity, or one must coin a new phrase like juniority
or junior-right.

Every kind of explanation has been offered to account
for the origin of these customs. To some they have
appeared unnatural, to others they seem so simple that
they might have been expected to grow up in every quarter
of the world. But hitherto all the explanations appear to
have been unsuccessful ; and it may be that the problem is
not only difficult but insoluble. The subject, however, is
so interesting and so important to the comparative history
of society, that it seems to be worth while to deal with the
discussion once more, or at least to collect some of the
materials which may hereafter be used for the solution of
the long-standing difficulty.

If we are to describe the area from which we must
collect examples of the junior-right, we shall find that it
has flourished not only in England, and in most parts of
Central and Northern Europe, but also in some remote
and disconnected regions with which our subject is not at
present concerned. We shall find it occurring among



/



Origins of English History. i8i

Ugrian tribes about the Ural Mountains, in Hungarian
villages, and in Slavonic communities ; and we might
trace its presence in Central Asia, on the confines of
China, in the Punjab,^ in the mountains of Arracan, and
even, it is said, among the New Zealand Maoris. It is
plain that we must to some extent restrict the scope of
our inquiry. We shall find reason later for extending it
over a wider tract comprising the regions in the North and
East of Europe and the neighbouring parts of Asia. But
our attention will for the present be mainly directed to the
Celtic countries and to those of the western peoples with
whom the English nation is connected.

We have not as yet found examples of this exceptional
law either in Scotland or in Ireland.^ In the Shetland
Isles, however, it was the practice, from whatever source
derived, that the youngest child of either sex should
have the dwelling-house when the property came to
division.^

The custom appears in Wales in what was probably its
most primitive form. According to the laws of Hoel the
Good, dating from the tenth century at latest, the inherit-

^ ' In all enquiries into the origin and developement of rural institutions in
the Punjab, the Kangra District has special importance and interest. Among
the Kanets of Kodh Sowiir (in this district) the custom was, that the Funds,
or separate holdings, were indivisible. If a man died possessed of one
Fa?td only, it went to his Ka?ma beta, or youngest son ; if he held two, the
other went to the next youngest.' Tupper, Punjab Customary Law,
182, 18.3. Compare the customs of the FrisicTheel-lands, post, 192.

^ For a discussion of the question, whether a preference of the youngest,
similar in kind to the custom of borough-English, can be traced in the old
Irish family settlements, see Maine, Hist. Earl. Inst. 210, 216, 223 ; Senchus
jNIor. ii. /v. 279 ; iii. ex/. 333,493 ; McLennan, Studies, 452. As to Hungary,
see Kovy, Summ. Juris. Hungaric. s. 3^1.

^ Wallace, Description of Orkney, 91.



J \

182 Origins of English History.

ance was to be so divided that the homestead, with eight
acres of land and the best implements of the household,
should fall to the voungest son. The different editions of

J o

these laws are contained in the Dimetian Code for South
Wales, and in the Venedotian Code for "Gwynnedd" or
the northern parts of the principality. Both are to the
same effect as regards the point in question ; but the
former is the more precise and best adapted for quotation:
— "When brothers share their patrimony" (so ran the
enactment or statement of custom) " the youngest is to have
the principal messuage (tyddyii), and all the buildings and
eight acres of land, and the hatchet, the boiler, and the
ploughshare, because a father cannot give these three to
anyone but his youngest son, and though they are pledged
yet they can never become forfeited : then let every son
take a homestead with eight acres of land ; and the
vouno^est is to divide, and thev are to choose in succession
from the eldest unto the youngest."^ But the rule only
applied to estates comprising at least one inhabited house ;
and on dividing a property of any other kind the youngest
son was entitled to no exceptional privilege.

The privilege of the youngest existed in other Celtic



1 Leges Wallise, (Dimet. Code), ii, 23, (Venedot. Code), ii. 12, 16.
Mr. J. A. Corbett, in his edition of Rice Merrick's Book of Glamorgan,
refers to the suggestion that this preference of the youngest might have led
to a regular Borough-English Tenure, and says " though this tenure is the
usual one for customary lands in the Vale of Glamorgan, I do not know of
its existence in the Hills, and in the Manor of Coity, which is divided into
Coity Wallia and Coity Anglia, the descent of customary lands in the first
was to sons equally, and in the second to the youngest son. I think it
probable that Borough-English was introduced from England, perhaps from
being the most convenient custom for tenants in villeinage." (Morgannias
Archaiographia, 148.)



Origins of English History. 183

districts, as in parts of Cornwall and Devon, in Flanders,^
and in several extensive lordships in Brittany. We have
no means of estimating its original influence in the last-
named region ; for, when the customs of the province were
codified by the feudal lawyers, the nobles set their faces
against the abnormal usage ; and we are told that in the
seventeenth century the area in which it survived was
almost daily diminishing.^

The distribution of the junior-right in England requires
a more particular notice. The custom was most prevalent
in the south-eastern districts, in Kent, Sussex, and Surrey,

^ See the customs of Lille : — " Du droit de Maisnete. Par la coutume,
quand pere on mere termine vie par inort, delaissant plusieurs enfans, et un
lieu manoir et heritage cottier venant de son palrivioine, au Jils maisne appar-
tient droict de maisnete audit lieu et heritage. Pour lequel il pent pre?idre
jusques a un quartier d'heritage seulement au moins si tant ne contient le dit
lieu : avec la maitresse chamhre, deux couples en la maison, la porte sur quatre
esteux, les porchils carin Journil et colomlier, s'ils soni separez, le burg du
puich, el tous arhres portant fruicts et renforcex, et autres choses reputees pour
heritages, &'c. En deffaut de Jils la Jille maisnee a pareil droict en faisant
recompense telle que dessus." Coutumier General, ii. 901, Compare the
similar customs of Cassel, ibid. i. 699.

^ The districts affected by the custom are enumerated in the Coutumier
General. They included the Duchy of Rohan, the Commandery of
Pallacrec, and the domains of the Abbeys of Rellec and Begare. The
peculiar descent was an incident of the servile tenure known as Quevaise.
" L'homme laissant plusieurs enfans legitimes, le dernier des males succede
seul au tout de la teniie a Vexclusion des autres, et a defaut des males la der-
niere des Jilles." Usance de Gtuevaise Art. 6 ; Cout. Gen. iv. 407. " En
succession directe de pere et de mere, le Jils juveigneur et dernier ne desdits
tenanciers succede au tout de la tenue, et en exclut les autres, soientjils ou Jilles."
Usance de Rohan, Cout. Gen. iv. 412. " Fers Corlay il y a une usance,
telle quelle se pratique en quelques eiidroits du Duche de Rohan, scavoir est le
droit de Qucvaize, auquel le dernier ?ie, soit fls ou Jille, demeure seigneur de
tout I' heritage. Es terres dependantes de I'Abbaye du Rellec Von observe la
mesme usance qu audit Corlay, scavoir est le droit de Quevaise, qui journelle-
7nent saltere en droit convenancier." Usage de Cornouaille, Cout. Gen. iv. 410.



184 Origins of English History.

in a ring of manors encircling ancient London, and to a
less extent in Essex and the East-Anglian district.
There are few examples in Hampshire, but further west a
great part of Somerset in one continuous tract was under
the law or custom in question. In the Midland counties
the usage was comparatively rare, at the rate of two or
three manors to a county ; but it occurred in four out of
the five great Danish towns, viz. ; in Derby, Stamford,
Leicester, and Nottingham, as well as in other important
boroughs, as Stafford and the City of Gloucester. To the
north of a line drawn between the Humber and Mersev
the usage appears to have been unknown.^

' Mr. Corner gives the following instances : — " The custom is much
more extensive than is generally supposed. In Cornwall I have found
one manor subject to it 5 in Derbyshire the town of Derby ; in Devon two
manors ; in Gloucestershire the city of Gloucester, where it governed the
descent of freeholds." In Hampshire, where the custom is called ' cradle-
holding,' he found nine manors subject to it ; in Herefordshire four ; in
Hertfordshire one j in Huntingdonshire three j in Leicestershire one j in
Lincolnshire the town of Stamford ; in Middlesex sixteen manors ; in
Norfolk twelve ; in Northamptonshire one. "In the town of Nottingham this
customary mode of descent is now unknown, but it exists at Scrooby and
Southwell, and in three other manors in the county ; in Shropshire in three 5
in Staffordshire in part of the borough of Stafford and two manors. In
Suffolk there are thirty, in Surrey twenty-eight, in Sussex 140 manors, and
in Warwickshire two, in which the custom of borough-English is the law of
descent." " Borough-English in Sussex," i'^, 14. Some of the districts here
counted as simple manors are in reality Sokes, comprising in each case a
number of subordinate manors. He only noticed one instance in Kent,
whereas the custona at one time ran throughout the whole county. The
manors of Pencarne and Liswery in Monmouthshire, and the manors of
Coity and other lordships in the Vale of Glamorgan, should be added to the
foregoing list. Mr. Charnock found the custom prevailing in the following
places in Essex, viz., at Alresford, Boxted Hall, South Bersted, Chesterford,
Chishall, Dedham Hall, Beaumont, Maldon, Wivenhoe, Wikes, Wrabness,
Walthamstow, and Woodford, where the custom is extended to younger
brothers. Manorial Customs of Essex, 9.



Origins of English History. 185

It will be sufficient to examine two or three of the most
important districts. We shall consider the character of
this local law as it anciently existed in Kent, and as it is
found in Sussex, in the vicinity of London, and as far to the
w^est as the Valley of Taunton Deane.

Every one knows that most of the land in Kent is subject
to the " Custom of Gavelkind," or in other words that on
the death of a landowner w^ho leaves no will his sons will
inherit equally, without any preference of the eldest.
There are other qualities attached to lands of this tenure
which need not be here discussed. But there was at one
time a custom throughout the county, which is described
in the local codes with considerable minuteness of detail,
by which a distinct birthright was secured for the youngest
of the customary heirs. We shall quote the entire passage
from the thirteenth-century Custumal.

I. "If any tenant in gavelkind die, having inherited
gavelkind lands and tenements, let all his sons divide that
heritage equally. And if there be no male heir, let the
partition be made among the females in the same way as
among brothers. And let the messuage (or homestead)
also be divided among them, but the hearth-place shall
belong to the youngest son or daughter (the others receiv-
ing an equivalent in money), and as far as 40 feet round
the hearth-place, if the size of the heritage will allow it.
And then let the eldest have the first choice of the
portions and the others afterwards in their order." ^

^ a. " Si ascun tenant en gauylehende murt, et seit inheritt' de terres e de
tenementz in gauylekende, que touz ses fitz par tent eel heritage per ouele por-
cioun. Et si nuL heir madle ne seit, seit la partyefeit entre les females siconic
entres les Jreres. Et la mesuage seit aiitreci entre eux departi, vies le astre
demorra al pane \_ou al puneej, e la value seite de ceo livre a chescuii des



1 86 Origins of EnglisJi Uistoiy.

The next paragraph relates to the case where several
houses had been built within the inclosure or curtilage
of one homestead : and here again the youngest heir
enjoyed a "junior-right," being allowed in each house
the principal fire-place, on making contribution to the rest
as before.

2. "In like manner as to other houses which shall be found
in such a homestead, let them be equally divided among
the heirs, foot by foot if need be, except the cover of the
hearth which remains to the youngest, as was said before:
nevertheless, let the youngest make reasonable amends to
his co-parceners for their share by the award of good
men. ^

These, it is added, were among the usages of the
Kentishmen " before the Conquest, and at the Conquest,

parceners de eel heritage a xl. pes de eel astre, si le tenement le pent sitffrir.
Et dunkz le eyne \_frere'] eit la primere electiaiin, e les autres apres per degree."
The reading followed is that of the copy belonging to Lambarde the antiqua-
rian, which was admitted in evidence to prove the customs of Kent, in the
case of Launder v. Brookes, in the reign of Charles I., Cro. Car. ^562. See
Lambarde, Peramb. Kent, 549 ; Robinson's Gavelkind, ^^^. The words
within brackets are omitted in Tottel's printed edition of the " Consuetudines
Kanciae," 1556, and the MS. at Lincoln's Inn, which are considered to
be of inferior authority.

^ I. Ensement de mesons que serront troues en tieus mesuages, seient
departye entre les heirs per ouele porcioun, ceo est asavoir per peies sil est
mistier, sauue le couert del astre, que remeynt at pune ou al punee sicome il
est auandist, issi que nequedont que le pune face renahle \_reasonalle^ gre a
ces parceners de la partye que a eux appent par agard de lone gentz.' The
word " astre " is often used in old documents for the hearth, and for the
dwelling-house. Bracton, ii. 85 ; Coke upon Litt. 8 b. ; Liber Assisarum,
23. A provincial use of the word in the latter sense in Shropshire is
noticed by Lambarde, Peramb. Kent, 563. See "Tenures of Kent," 171.
Other instances are found in the local idioms of Montgomeryshire, and in
many parts of the West of England, where " Auster-land " is that which had
a house upon it in ancient times.



Origins of English History. 187

and ever since until now,"^ The practice of preferring the
youngest, however, has in this county been for a long time
obsolete.

The principle of "junior-right" prevails so generally
upon copyhold lands in Sussex that it has often been
called the common law of the county ; and in the Rape of
Lewes the custom in fact is nearly universal." A com-
parison of the manorial usages will show the following
results. The privilege is usually extended to the heirs in
remote degrees ; the youngest of the sons, daughters,
brothers or sisters, uncles or aunts, or male and female
collateral relations, being entitled to the customary pre-
ference. When there are several kinds of tenure the
benefit of the custom is confined to the more ancient. In
some places, for example, there are two kinds of copyhold
land, the one called "Bond-land" and the other " Soke-
land." In such cases the custom is confined to the Bond-
land ; and in some manors the privilege of the youngest is
lost if his predecessor were the owner of Soke-land at
the time of his coming into the Bond-land. "Some of
these customs are very strange " (said a learned writer'J,
" such as that of the manor of Wadhurst, where there are
two sorts of copyhold tenures ; and the custom is, that if

^ " Ces sont les usages de gavylekend, e de gavylekendeis en Kent, que
fureut devcuit le conquest e en le conquest e totes houres jeshes en ca.^' This
conclusion is only found in the best copy of the Custumal.

^ See Corner, " Custom of Borough-English in Sussex." The customs
of 140 manors are collected in this useful work, which was reprinted from
the 6th volume of the Sussex Archaeological Collections. There is another
list of the Sussex customs among the collections for that county preserved
in the British Museum.

^ Nelson, Lex Maneriorum, citing the observations of Chief Justice
Anderson, in Kemp v. Carter, i Leonard, 55.



1 88 Origins of English History.

the tenant was first admitted to Soke-land and afterwards
to Bond-land the heir-at-law should inherit both ; and if he
was first admitted to Bond-land then his youngest son
should inherit both ; but if he was admitted to both at the
same time, then his eldest son should take the whole."
There is a similar usage in the manors of Framfield and
Mavfield, where in each case the written collection of
customs forms a valuable repository of ancient law. In
those districts, and in many others in the neighbourhood,
the copyhold lands which have been reclaimed from the
forest-waste are known as "Assart-lands." The distinc-
tion between them and the more ancient holdings appears
in the folio win 2: extract : — " If anv man or woman be first
admitted to anv of the Assart-lands and die seised of
Assart-lands and Bond-lands, then the custom is that the
eldest son be admitted for heir to all, and if he or she have
no son, then the eldest daughter likewise. And if the said
tenant be first admitted to Bond-land, the youngest son
or youngest daughter shall be heir to all his customary
lands. "^

In Pevensey also there are three different tenures of
freehold lands, of which the first goes to the common-law
heir, and the others to the youngest son, and in other
parts of the same county, as in the manor of Plumpton,
and on the lands "between the watch-crosses at Box-
grove," there are freeholds that are subject to the
customary rule.

I At Rotherfield the custom is still niore intricate. There are three
kinds of land, Assart, Farthing-land, and Cotman-land. To the first the
eldest son is heir : to the second the youngest son, and in default of
sons the youngest daughter ; and the Cotman-lands descend to the youngest
son, but failing a son are divided among all the daughters.



Origins of English History. 189

In the cluster of manors round London there are several
varieties of the custom. Its benefit in Islington and
Edmonton was confined to the youngest son ; at Ealing,
Acton, and Isleworth, it extended to the brothers and
male collateral heirs ; and in a great number of instances
the privilege was given to females as well as to males in
every degree of relationship/ These variations are of no
very great importance, the custom being modified in all
parts of the country by the rule, that special proof must be
given of any extension of that strict form of borough-
English for the benefit of the youngest son of which alone
the courts have cognizance. It is of greatest interest to
observe, that in several places near London "it is the
custom for the land to descend to the vouns^est, if it is
under a particular value, as five pounds; but if it is worth
more, it is parted among all the sons."^

We have shown the existence of a wide district, ex-
tending along the whole line of the "Saxon Shore," from
the Wash to the neighbourhood of the Solent, and taking
in the whole of the seven south-eastern counties, in which



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