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the anomalous custom is known to have especially pre-
vailed. We shall now turn to that extensive district in
Somerset which is known as the Manor of Taunton-
Deane. Throughout this large tract of countrv, which
extends over no less than twenty-six parishes, the custom of
preferring the youngest has survived in a peculiarly definite
form. The manor is perhaps best known for its strange
exaggeration of the law of dower: " If a tenant dies seised
of copyholds of inheritance, his wife ought to inherit the

1 As at Fulham, Putney, Sheen, Mortlake, Battersea, Koehampton,
Wimbledon, Wandsworth, Down, Barnes, and Richmond.
^ Real Property Commission, ist Report; Evidence, p. 254.



190 Origins of English History.

same lands as heir to her husband, and to be admitted
thereto to hold the same to her and her heirs for ever."
But we are more concerned here with the case in which
the tenant dies without leaving a widow to inherit. In
that case, says the Custumal, "if he hath more sons than
one, the voung^est hath used to inherit the same as sole
heir to his father : and so likewise of daughters, if he die
without issue male, the youngest daughter ought to inherit
the same as sole heir to her father. But if he has neither
wife nor son nor daughter, then the youngest brother is to
inherit, and if he has no brother then the youngest sister ;
and if he has neither brother nor sister, then this is a rule
in the said custom that the youngest next of kin ....
ought and hath used to inherit and hold the lands to him
and his heirs for ever."^

When we pass to the Continent, we find examples too
numerous to be mentioned in detail : but their distribution
will appear sufficiently from the following general list: —

a. The Junior - right existed, under the names of
^^Maijietc" and " Madelstad," and in forms ranging be-
tween the descent of the whole inheritance and the privi-
leged succession to articles of household furniture, in
Picardy, Artois, and Hainault, in Ponthieu and Vivier, in
the districts round Arras, Douai, Amiens, Lille and
Cassel, and in the neighbourhood of St. Omer," The

1 Shillibeer, Customs of Taunton Deane, 42 3 Locke, Customs of the
Manor of Taunton, 2; Watkins, Copyholds, App. 123 CoUinson, Hist.
Somerset, iii. 233.

^ Bouthors. " Coutumes locales du Bailliage d'Amiens," (Amiens,
1853). The following is a list of the customary districts in Picardy and
Artois, described by M. Bouthors : "Adinfer, Arras, Bavaincourt, Blairville,
Brontelle, Callien, Croy, Gouy, Guemappes, Hebuterne, Hornoy, Lig-
nieres, Rassery, Rettembes, Rezencourt, Selincourt, Warlus, Wancour."



Origins of English History. 191

same custom has been noticed at Grimberghe in
Brabant/

b. Similar customs were prevalent in many parts of
Friesland. The most noticeable of these was the ^''Jiis
Theelactiaim^' or custom of the " Theel-lands," doles, or
allottable lands, at Norden in East Friesland, not far from
the mouth of the Ems. The " Theel-boers " of this dis-
trict continued even in the present century to hold their
allotments under a complicated system of rules designed
to prevent an unprofitable subdivision of estates. An
inherited allotment was indivisible: on the death of the
father it passed intact to the youngest son, and on his
death without issue it fell into the possession of the whole
community.^

See Corner, Borough-English in Sussex, 13 ; Merlin, Repertoire, s. v.
"Mainete " ; Ducange, ^. v. " Mainett'"; and the Flemish Custumals of Lille
and Cassel. The word " madelstad," as there used, seems to signify
" manoir," or "principal dwelling-house." M. Bouthors classities the
customs as follows : — (r) Privilege du puine, maisne fils, ou maisnee fille,
sur certaines successions : Coutumes i. 177, 199, 384,389,406,4285 ii. 269,
272, 274, 305, 389. (2). Choix d'un manoir, ii. 219, 277, ^66, 517. (3),
Chef-lieu ou principal manoir, i. 167, 182; ii. 419, 432, 495,615, 617.
(4). La maison des pere et mere, appellee Quief-mez, ii. 622. (5). Re-
strictions. Le maisne prend la moitie, &c., ii. 286, ^66, 498, 505, 622,
666, 700. (6). Preciput mobilier, Choix de trois pieces de menage, &c., ii.
420, 432. We may add one or two examples from the Coutume de Saint
Omer : — " Quaiid le trepas du dernier vivant est advenu . . . le fils maisne
pent, comme en Bredenarde, avoir le manoir ainsi que I'avoil le dernier vivant,
en grandeur de cincq quarterons de terre, k^c. Et la ou il ny a mil fils, le
droit appartient a la fille puisnee.'^ (Audruic), p. 253, 265. " Lefils moins
age pent retenir le manoir quavoit le dernier vivant desdits pere et 7nere de la
grandeur de cinq quartiers de terre, ^r." (Bredenarde), p. 147, Append, xiii.

1 "C'etait le plus jeune fids qui heritait de la propriete pnternelle dans Je
Pays de Grimberghe en Brabant.'' Bastian, Rechtsverhaltniss. 185.

^ " Es ist gleichwohl ein grosser Unterschied zwischen Erb-Theelen und
angekauften Theelen, welches aus nachfolgenden Exempel Icichtlich zu
vernehmen. Hat ein Vater in einem Theel ein Erb-Tliccl und hat



192 Origins of English History.

c. Another set of instances may be taken from local
customs, now superseded by the Civil Code, in Westphalia
and those parts of the Rhine provinces which were under
the " Saxon Law," and in the Department of Herford
near Minden, of which the natives claim to belong to the
purest Saxon race. So strong, we are told, is the hold of
the custom on the peasants that "until quite recently no
elder child ever demanded his legal obligatory share: the
children acquiesced in the succession of the youngest, even
if no portions were left to them, and never dreamed of
claiming under the law of indefeasible inheritance ; and
even if the peasant died without making the usual will the
children acquiesced in the passing of the undivided inherit-
ance to the youngest son."^

d. A fashion of a similar kind has been noticed in Silesia
and in certain parts of Bavaria, where the laws of suc-
cession failed to break down the time-honoured privilege
of the youngest, his rights being preserved by a secret
settlement or by the force of local opinion.^

zugleich viele Sohne und der Vater stirbet so behalt der jiingste Sohn die
Erb-Theele flir sich allein, als des Vaters jui^igster Erbe, die andern
Briider aber niugen als eheliche Erben ein jeder ein Theele, so bald sie
sich verheurathet, und eher nicht angreiffen und Bauren-Recht thun und
verrichten. Hat er aber ein Kauff-Theel, und verstirbet, so konnten die
Kinder, so viel deren sind, ein jeglicher einen ganzen Theel, wie vorhin
von denen Erb-Theelen vermeldet, nicht angreiffen, sondern dann
dividiren sie einen Theele unter sich allein." Wenckebach, y^i^ T/iet/ctVi-
ticum Redivivum (i/jp), p. 69. See Edinb. Rev. (1819), vol. xxxii. for
an article on the Frisian Customs, and Robertson, Early Kings of Scotland,
353, 266. But the rules are difficult of comprehension, except by the light
of the cases and references contained in Wenckebach's elaborate treatise.

1 Foreign Office Report on Tenures of Land, 1869, i. 235, 424 (Harris-
Gastrell).

^ See the Report on Tenures, i. 79, ii. 133, as to a similar practice in
certain districts in Wiirtembero:.



Origins of English History. 193

e. There are properties, called " Hofgiiter^' in the
Forest of the Odenwald and in the thinly populated
district to the north of the Lake of Constance, which
cannot be divided, but descend to the youngest son, or in
default of sons to the eldest daughter. Many examples
might be found in Suabia, in the Grisons, in Elsass and
other German and partly German countries, where old
customs of this kind still influence the feelings of the
peasantry, although they have ceased to be legally
binding/

f. There is no sign of the Junior-right in Denmark or
on the Scandinavian mainland. But the youngest son has
his privilege in the Island (once the Kingdom) of Bornholm,
an outlying appendage of the Danish Crown: and the traces
of a similar right have been observed in the territory of the
old Republic of Liibeck."

g. In the south and west of Russia it is becoming the
fashion to break up the joint families and to establish the
children in houses of their own ; and it is said that the
youngest son is regarded in such cases as the proper
successor to the family dwelling-house. In the northern
provinces, however, the ordinary rule of primogeniture is
preferred.

The general similarity of the customs which we have
found alike among Celts, Germans, and Slavonians, must
lead to the belief that they had their origin in some such

^ Report on Tenures, i. 94. For other instances see Ducange, s. v.
"Mainete,''' "Locum habuisse in familia Hochstatana auctor est Guicciardinus
in Descriptione Belgii." "In Corvei erbte der jiingste Sohn das Haus.
Im Hofe Or folgte der iilteste, im Hofe Chor der jLingste Sohn." Grimm,
Alterth. 475. For Elsass, s^e Bastian, Rechtsverh., 1853 and as to Alten-
burg, see Gotting. Gelehrt. Anz. (1865), 453.

^ Report on Tenures, i. 94.



194 Origins of English History.

common principle as that the youngest son has a special
interest in the place which the parents have inhabited.
But so capriciously is the belief distributed, and in such
widely separated areas, that it seems almost impossible to
ascertain the lines along which it has passed, or the centres
from which it has radiated. The explanations which have
been put forward are too narrow to cover the facts ; and
on a wider survey, which has only of late years become
possible, we are forced to surrender the arguments that
formerly found a sufficient origin for the custom in the
principles of the English law.

We need not repeat the stories which passed current a
century ago, accounting for the preference of the youngest
by the tyranny of heathen lords, by wild tales of barbarism,
and fantastic legends of Thule. Nor need it be supposed
that (in the words of a learned antiquary) "the custom
was catched we know not how, and by the name may
seem to have been brought in by some whimsical odd
An^le that meant to cross the world. "^ Nor do we attach
importance to that passage in the preface of Thomas de
Walsingham where he derives the Northern practice from
an age before the taking of Troy." The reason advanced
by Littleton "had a greater air of probability," and it may
be taken as the best exposition of the arguments which a
lawyer might employ, if engaged in supporting the custom.
For it is true, no doubt, that "the youngest son after the
death of his parents is least able to help himself and most
likely to be destitute of other support ; and therefore (as
we are told) the custom provided for his maintenance by

^ N. Bacon, Laws of England (1739), 66-^ Corner, Custom of Borough-
English, 4.

^ See Blackstone, Comm. ii. 2, 6; Walsingham, Ypodeigma Neustriae, i.



Origins of English History. 195

casting the inheritance upon him."^ The commentator
added that this would appear to be the true reason, if one
considered where the practice had prevailed ; for in an
ancient borough a tradesman could expect no more than a
competent maintenance and a convenient habitation ; ''as
he was not rich himself, he could not bring up his sons to
idleness, but found it most for his own ease and their
benefit to send them out into the world advanced with a
portion of his goods ; but as the youngest son was last in
turn he was the child, if anv, left unadvanced at the death
of his father, and therefore the custom prudently directed
the descent of the real estate, generally little more than
the father's house, where it was most wanted." And
where the usage prevailed in country districts, it was
easy in the same way to account for it by the poverty
of the tenants; "being men of the meanest sort and
condition, below the hopes of breeding their sons to be
gentlemen, the elder sons applied themselves to husbandry,
or obtained farms for themselves on the same hard terms as
before ; and the small advantage of the father's tenement
was left to descend to the youngest son, as a mean support
of his infancy."^

Sir Henry Maine has connected the growth of the right
with the prerogative of the father, as head and master of
the family. The unemancipated son would be preferred
in the inheritance "according to ideas which appear to
have once been common to the Romans, to the Welsh and
Irish Celts, and to the original observers, whoever they
were, of the English custom."^ Others have traced it, by

^ Littleton's Tenures, 167, 211 ; Year-book, 8 Edw. IV., 19 a.
"" See Robinson on " Gavelkind," Appendix.
^ Maine, Early Hist. Inst. C24.

13 *



196 Origins of English History.

a similar train of thought, to a practice observed by-
Tacitus. It was not the German habit for anyone to bear
arms before his capacity was approved by the State. A
chieftain, in a public meeting, or the father or one of the
kinsmen, invested the boy with a spear and shield. That
was their way of coming of age, the first step towards
honour. "Up to that time the boy was regarded as part
of a household, but afterwards as a member of the com-
monwealth."^ It is assumed, but without much reason,
that this entitled a young man to be supported in future
by the state ; and that in general the youngest son alone
would remain in a subordinate position as part of his
father's household. While there was land enough to spare,
the emancipated children would, on this theory, be inde-
pendent ; and, by the time that all the lands had been
distributed, the right of the youngest must be supposed to
have risen in dignity, and his brothers to have lost their
inheritance, merely because the elder brothers among
their ancestors had originally received an allotment.

When we look to the words of Tacitus,^' it seems far
more probable that the Germans of his day divided the
inheritance among all the sons, with some reservation of a
birthright or extra share for the eldest. A privilege of
this kind has often been secured by the custom of a district
to the eldest son or daughter ; the house and a plot of
land "as far as a chicken could fly," or particular articles
of furniture, were exempted from the usual partition.^

' Tac. Germ. c. 13. - Tac. Germ. cc. 18, 20, 32.

^ In France the customary privilege was called " Vol dii chapon.'^
" Gentilhovime qui na que desjilles, les doit partager egalement ; wais I'aince
outre sa portion aura la fnaiso?i patemclle et le vol du chapo?i." fitabliss. St.
Louis, i. 10.



Origins of English History. 197

Notwithstanding the affection displayed for the sister's
children, a man's own sons, said Tacitus, succeeded to the
whole of his property ; and if there were no sons, the next
in degree to inherit were the brothers and the uncles on
both sides. So we are told that the wife's portion of cattle
and armour was left to descend to her sons ; and it was
only in one tribe that the war-horse was given to the son
who was most distinguished for bravery, instead of passing
as an heir-loom to the eldest according to the German
fashion.

It is in the history of primogeniture that we must look
for the origin of the privilege of the youngest. The
rights of the eldest have been gathered from many sources;
but at present we shall not stop to consider how the right
of the eldest heir to the kingdom was established in the
Middle Ages, or by what steps an artificial rule of inherit-
ance was extended by the feudal lawyers. The point of
importance for our argument is that an ancient custom of
primogeniture or benefit of eldership prevailed in many
parts of England before the feudal system was invented.

In Bede's Life of St. Benedict a passage occurs, which
shows that some such privilege was even in his day
reserved to the eldest son "as the first-fruits of the family,"
when a heritage came to be divided according to the laws
of Northumbria.^ In some parts of Westphalia, it is said,
the descent of the peasants' holdings has always been from
the father to the eldest son. In parts of Wiirtemberg it is
usual for the eldest son to succeed to the farm, even in his
father's lifetime, the father usually retiring to a cottage on

■^ " Quomodo terreni parentes, queni primum partu fuderint, eum
principium liberoruni suorum cognoscere, et ceteris in particnda sua
hereditate praeferendum ducere solent." Bede, Vita S. Bened. s. 1 1.



198 Origins of English History.

the same property.^ In certain districts of our own country
the birth-right took the form of a succession to the house,
or the best of the houses, or the best of each kind of
furniture. In the district of Archenfield, between Hereford
and Monmouth, where the old local codes show a curious
mixture of Welsh and English customs, the house and
lands were divided between the sons on the death of their
father : but there is this difference, says an ancient
record of their laws,^ that certain principals^ as they call
them, pass to the eldest as heirlooms, and are not subject
to partition, such as the best bed and furniture, the best
table and the like, all which the men of Archenfield retain
as derived to them from great antiquity even before the
Norman Conquest. In the same way by the custom of the
Hundred of Stretford^ in Oxfordshire the eldest son was
entitled to keep for his "principals" the best article of
each kind of chattel, as the best waggon and plough, the
best table and chair, the best of the chests and cups and
platters. A right of this kind was very common in
France, where the benefit of the eldest was known as the
Precipiit.

The preference of the eldest daughter in the succession
to the cottages and copyhold tenancies in several English
districts appears to indicate the survival of some ancient

' Report on Tenures, i. 235-427. Compare Grimm's account; "Die
oldeste sohne weren neger bi den lande te bliven." Loener, Hof-Recht.
s. 49. " Noch heut zu Tag pflegt bei manchen Erbschaften der iilteste Sohn
oder die iilteste Tochter einige Stlkke voraus zu empfangen." Deutsch.
Alterth. 475. For an Indian parallel to the Wiirtemberg usage, see Punjab
Customary Law, ii. 192.

^ Rot. de Quo Warr. 20 Edw. I. Blount's Tenures, 165. Hazlitt,
Tenures of Land, s. v. " Irchinfield."

» Coke, First Inst. 18 ^^



Origins of English History. 199

leaning towards primogeniture, independent in its origin
from the feudal rule that certain dignities, offices, and
castles, held by "the law of the sword," should be inherited
bv the eldest co-heiress/ The traces of such a custom are
found in the Isle of Man, in the extensive domains of
Castlerigg and Derwentwater in Cumberland, at Kirkby
Lonsdale in Westmorland, at Weardale in Durham, and in
several parts of the Southern and Midland Counties.^ At
Tynemouth it was the local law that the eldest daughter
surviving her parents should take the father's estate for
her life. And in some of the southern manors the
primogeniture of females is not confined to daughters, but
extends in some places to the eldest sister or aunt, and
elsewhere to relations in more distant degrees.

A similar distinction between the feudal rule and the
ancient rustic custom may be found in the writings of the
great jurists who explained the nature of the English
common law.

We should first consider a remarkable passage from



^ Bracton, De Legihus, ii, 76 j Coke, First Inst. 165 a.

^ For the custom in the Isle of Man, see Camden's Britannia, 1454 ;
King, Descr. Isle of Man 5 Statutes of the Isle of Man, 1643, 1703, 1777.
For the Northern Counties, see Nicholson and Burn, History of Cumberland
and Westmorland 5 and see also Real Prop. Comm. 3rd Rep. App. 4;
Kenny, Primogeniture (Cambridge, 1878), 39. For the custom of Tyne-
mouth, see Robinson, Gavelkind, c. 2, and his appendix. The lists of
customs in Watkins on Copyholds, and Hazlitt's Tenures of Land, and
Coke, First Institute, 140 b., should be consulted as to similar usages in the
following list of manors : Bray in Berkshire, Marden in Herefordshire,
Cashiobury and St. Stephens in Hertfordshire, Middleton Cheney in
Northamptonshire, Chertsey Beaumond, Farnham, Worplesdon, and Pir-
bright, all in Surrey 5 the same usage appears at Cheltenham, according to
the oldest edition of the customs, and at Framfield in Sussex, where it applied
only to "Assart Lands."



200 Origins of English History.

Glanville which appears to have been equally applicable to
the state of England and Scotland in the twelfth century.
Glanville took, in the first place, the case of a knight or a
tenant by military service. To such the new Norman law
was applicable, and the firstborn son succeeded to the
whole of his father's property. But if the estate was held
by a money-rent or by the rendering of agricultural
services, which was called a tenure in socage, the custom
of the district was left to determine whether the inherit-
ance should pass to all the sons, or to the eldest, or to the
youngest son. "If he were a free-socman, the inheritance
in that case will be divided among all the sons according to
their number in equal shares, if the socage tenement were
partible by ancient custom ; tlie chief messuage was,
however, reserved for the firstborn son in honour of his
seniority, but only on the terms of his making compensation
to his other brothers from the rest of his property. But,
if it were not anciently partible, then by the custom of
some places the firstborn son will take the whole inherit-
ance but bv the custom of others the voungest son is
the heir."^

^ " Cum quis haereditatem habens moriatur, si unicum filium haeredem
habuerit, indistincte verum est quod filius ille patri suo succedit in toto.
Si plures reliquerit filios tunc distinguitur utrum ille fuerit miles seu per
feodum militare tenens, an liber sockmannus. Quia si miles fuerit vel per
militiam tenens, tunc secundum jus regni AnglicE primogenitus filius patri
succedit in totum, ita quod nullus fratrum suorum partem inde de jure
petere potest. Si vero fuerit liber sockmannus tunc quidem dividetur
hsereditas inter omnes filios quotquot sunt per partes gequales, si fuerit
socagium illud antiquitus divisum ; salvo tamen capitali messuagio primo-
genito filio pro dignitate aesnecise suae, ita tamen quod in aliis rebus satis-
faciat aliis ad valentiam. Si vero non fuerit antiquitus divisum, tunc
primogenitus secundum quorundam consuetudinem totam haereditatem
obtinebitj secundum autem quorundam consuetudinem postnatus filius



Origins of English History. 201

In the course of the century following, the rule of primo-
geniture was extended in several directions. The King
claimed a prerogative of abolishing such laws and customs
as diminished the strength of the kingdom, or at least
to change them by his special grace in the case of a
deserving and faithful follower ; and the right was freely
exercised in Kent, both by the King and by the Archbishop
of Canterbury, to whom the privilege was delegated, until
it was disallowed in part by the judges in the reign of
Edward II., and soon afterwards became wholly obsolete.^



haeres est. Item si filiani tantum unani reliquerit quis heredem, tunc id
obtinet indistincte quod de filio dictum est. Sin autem plures filias, tunc
quidem indistincte inter ipsas dividetur hereditas, sive fuerit miles sive
sockmannus pater earum, salvo tamen primogenitae filiee capitali messuagio
sub forma praescripta." — Glanv. vii. 3.

^ The question was discussed in Gatewyk's Case, commenced in 6
Edw. II. and adjourned into the Common Pleas ; 9 Edw. II. C. B. Rot.
240 ; Rot. Cart. 4 Edw. I. No. 17. The Charter on which the case turned
will be found in the Allreviatio Placitorum, in Robinson's Gavelkind, c. 5,
and in the Tenures of Kent, 369. This "notable record" contains a plea,
that the tenure of the land was changed to knight-service by the grant
of the lord, confirmed by the King, and ought therefore to descend to the
eldest son : the King wrote a letter to the judges informing them of his
prerogative, but apparently without much effect ; and in the course of his
letter he quoted at length the following charter granted by Edward I. : —

" Edwardus, Dei gratia .... archiepiscopis &c. et fidelibus suis salutem.
Ad regiae celsitudinis potestatem pertinet et officium, ut partium suarum
leges et consuetudines, quas justas et utiles censet, ratas habeat, et obser-
vari faciat inconcussas ; illas autem, quae regni robur quandoque diminuere
potius quam augere aut conservare videntur, abolere convenit, aut saltem
in melius apud fideles suos et bene meritos de speciali gratia commutare :
cumque ex diutina consuetudine, quae in comitatu Kanciae quoad divi-
sionem et partitionem terrarum et tenementorum, quae in gavelikendam



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