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tenere solent, frequenter acciderit, ut terrae et tenementa, quae in quorun-
dam manibus integra ad magnum regni subsidium et ad victum multorum
decenter sufiicere solent, in tot partes et particulas inter cohaeredes post-
modum distracta sunt et divisa, ut eorum nulli pars sua saltem sufficere



202 Origins of English History.

There are indications that such a right was claimed by-
some of the barons without a special licence from the
Crown. It appears at any rate that Simon de Montfort
granted a charter dated in 1255 "whereby as a great
favour to his burgesses of Leicester, at their earnest suppli-
cation and for the benefit of the town, and with the full
assent of all the burgesses, the Earl granted to them that
thenceforward the eldest son should be the heir of his
father instead of the youngest, as was then the custom of
the town."^ But the same effect was afterwards obtained
over a great part of the country by the more simple
method of reversing the old presumption that primogeniture
was a local exception to the ordinary rule of partition, and

possit ad victum : Nos obsequium laudabile dilecti et fidelis nostri
Johannis de Cobham, quod nobis gratanter exliibuit, gratia speciali et
honore prosequi volentes, concedimus eideni et praecipimus pro nobis et
haeredibus nostris ut omnes terree et tenementa sua quae ad gavelykendam
in feodo tenet et habet in comitatu praedicto ad primogenitum suum vel
alium haeredem suuni propinquiorem post ipsum, sicut et ilia quae per
serjantiam tenet vel per servitium militare, Integra et absque partitione
inter alios inde facienda descendant, et eidem et ejus haeredibus sub
eadem lege, salvis in omnibus capitalibus dominis suis servitiis et con-
suetudinibus, aliisque rebus omnibus quae ad eos de dictis tenementis
pertinere solent imperpetuum remaneant ; praesertim cum iu nullius prae-
judicium cedere videatur, si circa terras et possessiones, quas aliis extra-
neis licenter concedere posset, ad ejus instantiam et consensum succes-
sionis suae modum commutemus. Q,uare volumus et firmiter praecipimus
pro nobis et haeredibus nostris, quod omnes terrae et tenementa, quae
praedictus Johannes in gavelykendam in feodo tenet et habet in comitatu
praedicto, ad primogenitum suum vel alium haeredem suum propinquiorem
post ipsum, sicut et ilia quae per serjantiam tenet vel per servitium mili-
tare, integre absque partitione inter alios inde facienda descendant, et
eidem et ejus haeredibus sub eadem lege, salvis in omnibus capitalibus
dominis suis servitiis et consuetudinibus, aliisque rebus omnibus, quae ad
eos de dictis tenementis pertinere solent, imperpetuum remaneant, sicut
praedictum est. His Testibus, &c." Dated May 4th, 4 Edw. I.
^ Corner, Custom of Borough-English, 12.



Origins of English History. 203

by requiring special proof of the existence of a custom to
exclude the eldest son.

In the time of Bracton, whose treatise was finished about
the end of the reign of Henry III., the old customs of
primogeniture (as opposed to the Norman usage), appear
to have been confined to those more privileged holdings of
the peasants, which were then known as " villein-socage,"
and which in many cases developed afterwards into a kind
of copyhold.^

The same kind of custom occurred in Normandy, not
only in the fiefs held by military service, but in the case
also of the farmers and cottagers, whose eldest sons might
retain their parents' homesteads. By the special usage of
the Pays de Caux, and of certain districts in Picardy, the
eldest son had exclusive or almost exclusive rights from a
period of unknown antiquity.^

^ "Si liber socmannus moriatur pluribus relictis et participibus, si
hsereditas partibilis sit et ab antique divisa, quotquot erunt habeant partes
suas aequales ; et si unicum fuerit messuagium, illud integre remaneat
primogenito, ita tamen quod alii habeant ad valentiam de communi. Si
autum haereditas non fuerit divisa ab antique, tunc tota remaneat primo-
genito. Si autem socagium fuerit villanum, tunc consuetude loci est
observanda; est enim consuetude in quibusdam partibus quod postnatus
praeferatur primegenito, et e contrarie." вАФ Bracton, De Legihus, ii. 76 ;
Fleta, V. c. 9.

" " Le Jils aisns au droit de son aisnesse pent prendre et choisir par
precipu teljief ou terre ?ioble que Ion lui semlle." Coutume de Normandie,
331- " S'il Jiyaqu'un manoir roturier aux champs, anciennement appelle
Hehergement et Chef d' Heritage, en toute la succession, laisne pent avant que
faire Lots et partages, declarer en justice quil le retient avec la court clos et
jardin, et haillant recompense a ses puis7ies." ibid. 3^6. " Vaisnefaisant
partage . . . peut retenir par precipu le Lieu Chevels . . . anciemiement
appelle Hehergement, soit en villc ou en champs, de quelque estendue quil soit,
^c." Usage local de Bayeux, Coutumier General, iv. 77, 78, 64. " De-
meurant le manoir et pourpris en son integrite au profit de iaisne, sans qu il



204 Origins of English History.

There are other reHcs of the same ancient system to be
found among the Celtic, Teutonic, and Scandinavian peoples.
In Ireland, for example, " the cattle and land were equally
divided, but the house and offices went in addition to his
own share to the eldest son,^ And so in Norway, under
the " Odal-law," every freeholder, according to Pontoppi-
dan, had vanity enough to think himself as good as a
noble : " and this law consists " (he said) " in having from
time immemorial the right of primogeniture united with
the right of redeeming the land from purchasers, which
has always existed in Norway.'"^ If we turn to the ancient
world we find that at Athens the eldest son took the
father's house as an extra share by virtue of his " Presbeia"
or privilege of eldership.^ In like manner by the Laws

en pidsse etre dispose a son prejudice, nij qiiil soil tenu en fair e recompense
ausdits puisnez." Succ. au Bailliage de Caux, it-id. 74. " On a pen de
lumiere (says Richebourg, in his learned note on the last-cited passage),
touchant I'origine des Coutumes du BciilUage de Caux. Ce qui paroist plus
vrai-semllalle est que le Pays de Caux, separe du reste de la Province de
Normandie par la riviere de Seine, faisoit partie de la Gaule Belgique ; car
c'etoit cette riviere qui distinguoit la Gaule Celtique de la Belgique. Et
cojmne ces peuples etoient dijferens dans leurs moeurs, que par les Coutumes
des Beiges, quils avoient tirees des Allemands leurs voisins, tout r/ieritage
demeuroit a I'aisne, les Cauchois qui faisoient partie des Beiges avoient aussi
conserve le meme usage. On voit en ejfet que dans la Province voisine du
Pays de Caux, qui est la Picardie, laquelle etoit aussi de la Belgique, la
condition des aisnez y est avantageuse. Les Cauchois, quoique reunis sous un
vieme Souverain avec la reste de la Normandie, continuerent cCen user comme
auparavant."

^ Hearne, Aryan Household, 80, 823 O' Curry, Manners of the Ancient
Irish (Sullivan's introd.), clxxix.

^ Pontoppidan, Nat. Hist. Norway, ii. c. 10, s. 6.

^ Demosth., Pro Phormione 34 ; and see De Coulanges, La Cite Antique,
92. The most ancient Roman customs are unknown, owing to the
Revolution in b.c. 450, which resulted in the establishment of the Laws of
the Twelve Tables.



Origins of English History. 205

of Manii the eldest son was entitled to a double sliare.^
The sons were directed to divide the patrimony ; but
before the partition they were all under the rule of the
eldest, as M. De Coulanges showed in ' La Cite Antique.'

As to the origin of these customary rights we shall find
the best and the earliest explanation in some passages of
the laws of Manu. The eldest son, it was said, had his
very being for the purpose of accomplishing the rites of
the family religion, of offering the funeral cake, of
providing the repasts for the spirits of the dead. The
right of pronouncing the prayers belongs to him who
came into the world the first. " A man must regard his
elder brother as equal to his father. . . . By the eldest,
at the moment of his birth, the father discharges his debt
to his own progenitors : the eldest son ought therefore
before partition to manage the whole of the patrimony."

Sir Henry Maine drew a distinction between such
"customs of the tribe" and that strict modern form of
primogeniture which he has traced to the power of the
chieftain. Taking primogeniture in the sense of an
exclusive succession of the eldest son to property, he finds
no sign of its existence before the irruption of the bar-
barians into the provinces of the Roman Empire. It was
unknown, he said, to the Hellenic and the Roman world.
'' Even when the Teutonic races spread over Western
Europe, they did not bring with them primogeniture as
their ordinary rule of succession : the allodial property of
the Teutonic freeman, that share which he had theoreti-
cally received at the original settlement on their domain
of the brotherhood to which he belonged, was divided

^ Laws of Manu, ix. 105, 106, 107, 126. See also the whole section on
" Le droit (TAinessej" in c. 6 of " La Cite Antique."



2o6 Origins of English History.

at his death, when it was divided at all, equally between
his sons or equally between his sons and daughters."^

There is no necessary opposition between this statement
and the theory of M. De Coulanges. The former deals
with that official primogeniture which became the bond
of the feudal society, a prerogative of the King, or of
the chief or the manager of an undivided household,
over a demesne belonging to him in a special sense and
descending as an appanage of office to his successors.
The other is confined to the old customs of the Aryan
household, connecting the position of the eldest son
with the duty of guarding the hearth and performing
the family rites. From the latter source is traced the
wide-spread local usage that the eldest son should take
his father's dwelling-house when a property fell into
partition. There is nothing perhaps which marks more
distinctly the inherent difference between these forms of
primogeniture than the fact, that in the local customs it is
not usually a double share or a larger value which is given
to the eldest son, but the peculiar privilege of retaining
the hearth-place on condition of making compensation to
the other heirs.

We need not repeat the details of the domestic religion.
It is enough to observe that in the East and the West, in
the ancient and modern world, we find abundant traces of
the worship of the deified ancestors, as household gods to
whom the father offered prayers and fragments from the
common meal, and for whom the mother of the household
maintained the perpetual fire. The spirits of the dead

^ Maine, Early Hist. Inst., 198. The admission of the daughters to
inherit by the Visigoths, and some other Teutonic nations, must apparently
be ascribed to the influence of the Roman Law,



Origins of English History. 207

fathers were thought to haunt the hearth as well as the
ancestral tomb, and to bring prosperity or plagues upon
their race, according to the observance or neglect of the
dailv offerings of meat and drink, and of the annual
oblations at the Feast of the Dead/

The private religion of the Celts, of the Germans and
Scandinavians, and of the kindred nations to the eastward,
appears in each case to have been charged with an antique
symbolism which can only be referred to some similar
worship of the dead, and to services performed in their
honour at the hearth, or by the family grave. A few of
these superstitions deserve a more particular mention.
We will select in the first place those relating to the
veneration for the fire, and afterwards a few examples
relating to funeral rites and the propitiation of the house-
hold spirits.

The Scottish and Irish chronicles are full of instances of
the use of prayers and ceremonies on the lighting of fires
and candles, of the special sanctity of the fire-place, so
that the "trampling of the cinders" was the worst of indig-
nities for the household, and of the prohibition to take fire
from a cottage when the owner is attacked with illness.
With this we may compare what Pennant saw at christening-
feasts in the Highlands, where the father placed a basket
of food across the fire and handed the infant three times
over the food and the flame." One might also recur to
the " heirship-ales " and solemn feasts described in the

^ Maine, Anc. Law, 191 ; De Coulanges, C'lU Antique, 33, 71 ; Revue
Celtique, ii. 486.

" Pennant, Tour in the Highlands, iii. 46 3 O'Curry, Manners of the
Anc. Irish, intr. 2785 Spenser, State of Ireland, 82, 995 Wood, Anc.
Irish, 170 3 Logan, Scott. Gael. ii. 337 ; Hearne, Aryan Household, 51.



2o8 Origins of English History.

Northern Sagas, where it was necessary, before the high-
chair was ascended, that the loving-cup or " remembrance-
bowl " should be drunk in honour of the dead, after
passing the goblets backwards and forwards through the
fire in the centre of the hall or the temple. The Princess
Hildegonda, in one of the most lifelike of these histories,
makes ready at her father's command to carry the ale round
to the Vikings. She takes the silver cup and bows as
she begins the ceremonies ; and drinks " Health to all
Ylfing men : this cup to the memory of Rolf Kraka."
In a later form of the rite the honour of the loving-cup
was transferred from the dead ancestors to St. John
or St. Gertrude, or a prophet or archangel chosen
as the patron of a family or a drinking-guild. We see
the point of transition in the story of the Vikings of
Jomsburg. King Swend of Norway was giving a " suc-
cession-feast " after the death of King Harold his father,
'' and he sent word to the Vikings to come to drink the
funeral ale for their fathers at the feast which he was
giving." The king's high-seat was on the middle of a
bench, and other benches were ranged round the central
fire ; the ale was passed round in great bowls and was
handed through the flame ; the first day of the feast,
before Kind Swend went up into his father's seat, he drank
the bowl to his father's memory, and made a solemn vow to
go with his army to England, and from this heirship-bowl
all drank who were at the feast ; then the largest horn that
could be found was filled and drunk for the chiefs of the
Vikings ; when that bowl was emptied all men drank
another to Christ's remembrance, and a third to the memory
of St. Michael.'

^ " Enn er that minni var afdruckit, thii scylldi drecka Cristz-minni aller



Origins of English History. 209

The subject might be illustrated by reference to a mul-
titude of superstitions connected with the family fire-place,
the reverence for the snake, the cricket, and moths flying
round the light, the "Welcome, Grandfather!" of the
Russian peasant when the fire raked from the old stove is
brought to the new home of the family,^ and the household
fairies for whom the hearth must be swept and food and
water left by night. It is probable that all the household
spirits, the Brownies and Pixies, the Irish " Pookas and
Leprachauns," the long-locked "Gruagach" for whom the
Highland girls leave bowls of milk on the " gruagach-
stones," are shadows or reminiscences of gods dethroned.
Burton's list of their labours will suffice for our purpose.^
In almost every family in Iceland, said his ancient authors,
they had some such familiar spirits, and they were common
in many places in France. " Paracelsus reckons up many
places in Germany where they do usually walk in little
coats some two feet long. A bigger kind there is of them
called hobgoblins and Robin Goodfellows that would in
those superstitious times grind corn for a mess of milk, cut
wood, or do any manner of drudgery work, to draw water,
dress meat, or any such thing." These were the
*' Fortunes, " whom Gervase of Tilbury professed to have



menn. Hit thridia var Michials minni, oc drucko that allir. Enn eptir
that drack Sigvalldi Jarl minni fodor sins," &c. Olaf Tiyggvasson's Saga,
Heimskr. vi. c. 39. Compare the following Sagas in the same work, i. c.
41 ; iv. c. 165 vii. c. 113 5 Keysler, Antiqu. Septent. 357,3^9 5 Jomsviking
Saga, c. 27. Grimm mentions the survival of " minne-drinking " as a
religious rite in some parts of Germany : a chalice of wine was blessed by
the priest and handed to the congregation to drink as Johann'is-Scgen , "St.
John's Blessing 5" Deutsch. Mythol. 52.

^ Ralston, Songs of Russia, 120, 138.

^ Anatomy of Melancholy, i. pt. 2, p. 125.

14



2IO Origins of English History.

known in England.^ They are described as little old men
with patched coats, who help in the housework and warm
themselves by the fire when the family have left the room.
They are represented in another form by Milton's ''lubber-
fiend," by the Yorkshire "Boggart," the Luridan in the
Orkneys, the German "Heinzelmanner" and Kobolds, the
"Nisseys" of the Danish and Norwegian farms, and the
"old man of the house" to whom the Swedish peasant sets
out an annual dole of cloth and tobacco and a shovelful of
clay."

The ancient ritual survives in its strongest form in those
annual observances on the Feast of All Souls which were
common at one time to Celts, Germans, and Slavs, and
which still survive in a modified form in almost every part
of Europe. Among the Slavs, as we are told,'^ a yearly
feast is held for the dead, to which the departed souls are
actually believed to return: "silently little bits of food
are thrown for them under the table," and people have
believed "that thev heard them rustle and saw them feed
on the smell and vapour of the food." In Brittany, says
Mr. Tylor, the crowd pours into the churchyard at
evening, "to kneel bareheaded at the grave of dead
kinsfolk, to fill the hollow of the tombstone with holy
water or to pour libations of milk upon it : in no household
that night is the cloth removed, for the supper must be left
for the souls to come to take their part ; nor must the fire
be out, where thev will come to warm themselves."^

1 Gerv. Tilbur. Otia Imperialia, Script. Rer. Brunov. i. 980. A transla-
tion and many illustrative passages will be found in Keightley's Fairy
Mythology, 28^.

- Keightley, 147; Grimm, Deutsch. Mythol. 473, 492.

^ Hearne, Aryan Household, 60.

* Tylor, Prim. Cult. ii. 34. " Les mels sont laisses sur la table: car une



Origins of English History. 211

Some notice appears to be due to the Northern custom
of setting aside particular lands for bearing the expense
of a funeral. If a man had no descendant or kinsman
to give him proper burial, he might leave his estate as
Brande Erbe, or "burning-land," for an endowment to
meet the expense of the funeral pyre or the burial ; and
the friend who accepted the gift, and undertook to perform
the necessary ceremonies, was allowed to count the land as
part of his "Odal-land," or privileged family-estate.^ This
certainlv looks as if there was a distinct connection
between the ideas of inheritance and of performing the
family ceremonies, just as among Hindoos "the right to
inherit a dead man's property is exactly co-extensive with
the duty of performing his obsequies," and as in ancient
Rome an inheritance could not be distributed under a will
"without a strict apportionment of the expenses of these
ceremonies among the diiferent co-heirs."^

Bv such indications we are led to the conclusion that
the oldest customs of inheritance in England and Germany
were in their remote beginnings connected with a domestic
religion and based upon a worship of ancestral spirits, of
which the hearth-place was essentially the shrine and altar ;



superstition toudiante faite croire aux Bretons qua cettc heure ceux qu'ils
regrettent se levent des ciinetieres, et viennent prendre sous le toil qui les a vu
naitre leur repas annuel." Souvestre, Derniers Bretons, i. 1 1. " On en voyoit
plusieurs . . . qui inettoient des pierres aupres dufeu . . afin que leurs peres
et leurs ancestres vinssent sy chauffer a Vaise." Revue Celtiquc, ii 485.

^ Robertson, Early Kings, ii. 323. These endowments were replaced
in Christian times by the numerous gifts in " francalmoigne."

^ Maine, Anc. Law, 191. "Les dieux qui conferent a chaque famille son
droit sur la terre, ce furent les dieux domestiques, le foyer et les manes. La
premiere religion, qui eut V empire sur leurs dmes fut aussi celle qui conslitua
chex eux la propriete." De Coulanges, Cite Antique, 71.

14 *



212 Origins of English History.

and we are brousiht to the further conclusion that the
old form of primogeniture, by which the eldest got the
advantage of the father's house, had come down from a
people who thought it right, that the eldest son should
take the lead in the domestic priesthood, and in the
performance of the funeral and commemorative cere-
monies.

The question may be worth proposing, whether the
before-mentioned Celtic, German, and Slavonic forms of
the Junior-right may not have been derived from some
other domestic religion, based on the worship of ancestors
and a consequent reverence for the hearth-place, but
belonging to a people who saw no natural pre-eminence in
the eldest. It may be impossible to prove the existence
of a race with such religious views in Europe within the
historical period. But there is evidence which tends in
that direction ; and it should be remembered that the
ethnologists have only lately begun to enquire into the
history of the peoples who spread outwards from the
Ural and Altai Ranges, into their possible identity with
the men of the Bronze Age in Northern Europe, and the
traces which thev mav have left on the languao^es and
customs of the modern world. It seems to be certain that
some great proportion of the population of the Western
Countries is connected by actual descent with the pre-
Celtic occupants of Europe ; and it must be regarded as
highly probable that one branch or layer of these earlier
inhabitants ought to be attributed to that Ugrian stock,
which comprises the Quains, Finns, Magyars, Esthonians,
Livonians, and several kindred tribes whose territories
abut upon the Baltic, the White Sea, and the Volga. It
is said that a case can be made out for an earlv extension



Origins of English History. 213

of the Livonians, or Liefs of Coiirland, and of certain
Esthonian races, as far west as the Oder and possibly as
far as the mouth of the Elbe : and we have seen that at
one time some branches of the Finnish race may have
reached as far west as the Atlantic shores. On the other
side of the world all these nations are connected by blood
with the Mongols of Central Asia.^

Among these widely-separated nations we find a con-
tinual recurrence of the rule that the youngest son ought
to inherit his father's dwelling-place. As early as the days
of Pere Du Halde it was known that the custom prevailed
among the Mongols of the Chinese Empire.'-^ In Hungary
it was the law of the country districts that the youngest

^ M. De Meso-Kowesd, in the Report on the French Scientific Expedi-
tion to Russia, Siberia, and Turkestan {Les Bachkirs, Les Fepses, &c.,
iii. c. 3), has provisionally classified the Altaic peoples as follows : They
form, he says, a family of the Mongolic peoples, and are subdivided into
several stocks, one of which comprises the four divisions of the " Ugro-
Finns." These four divisions are distinguished as follows : a. Finns of the
Baltic, or Western Finns ; l\ Eastern Finns ; c. the Finns of the Volga ;
and d. the Ugrians properly so-called. The Baltic Finns are further divided
into two principal classes, viz. Carelians, including the Scandinavian and
Bothnian Quains and the " Suomis " of the Baltic coast 5 and Tchuds,
including the Esthonians, the Livonians, and the almost lost " Cours " of
Courland, the "Votes" in the provinces of Novgorod and St. Petersburg,
and the " Vepses " or Northern Tchuds, living mostly in the neighbourhood
of the Lakes Ladoga and Onega. For evidence of the identity of the Bronze
Age men with tribes between the Amoor and Volga, see Aspelin, Ant.
Nord. Finno-Ougriens (Paris, 1879), i. 45, 77.

^ " Utdschigin (FeuerhLiter) hiess der jLingste Sohn bei den Mongolen,
als erbend." Bastian, Rechtsverh. 185. See also Gotting. Gelehrt. Anzeig.
(1865), 453, and Heidelb. Jahrb. (1864), 210. For the story of the pre-
ference of the youngest among the Scythians, see Herod, iv. 5, 10 ;
Bergmann, "Les Getes '' (Paris, 18/59), 82; and as to Prester John,
"Jratrum suorum tninimus,'^ see Alberic. Trium Fontium. ii. 508. The
latter instances may be connected with the well-known preference of the
youngest in the fairy tales.



214 Origins of English History.



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