736 PRIMOGENITURE Home an inheritance could not be distributed under a will " without a strict apportionment of the expenses of these ceremonies among the different co-heirs" (Maine, Anc. Law, 191). Some support is also given to this theory by the custom which is said to have prevailed in Norway by which particular lands were set apart for funeral expenses, and if a man had no kinsman to give him proper burial he might leave his property as " brande-erbe " or " burning- land " as an endowment for burial, and the friend who accepted the duty was allowed to keep the property as " odal land " or privileged family inheritance (Robertson, Early Kings, ii. 323). Numerous other illustrations might be given from the analogous customs in which the youngest son is preferred. There seems to be no reason why the eldest should be preferred by one nation and the youngest by another ; but something may perhaps be due to the acci dent that the one set of tribes was civilized enough to have fixed family habitations, and the other may have lived in a nomad fashion, so that the youngest would be most likely to remain in the parents tent and to be ready to perform the duties of the hearthplace. Sir Henry Maine draws a distinction between the archaic customs of the tribe and that strict 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 pro perty, he finds no sign of its existence before the destruction of the Roman empire by the barbarians. "Even when the Teutonic races spread over western Europe they did not bring with them primogeniture as their ordinary rule of succession." He considers the "birthright" given to the eldest in the instances which have been mentioned to be in the nature of a reward or a security for impartial distribution (Early Hist. Inst., 197, 198). "Primogeniture, as we know it in our law, had rather a political than a civil origin, and comes from the authority of the feudal lord and probably from that of the tribal chief ; but here and there on the Continent there are traces of it as a civil institution, and in such cases the succession of the eldest son does not exclude provision for the younger sons by what are called appanages. The evidence of ancient law and usage would, however, seem to show that it was usually the youngest son who remained at home with his father to serve him through life and succeed to his remaining property at his death " (Early Law and Custom, p. 260). As regards the political origin of a great part of the English system of primogeniture a distinction should be made between royal and feudal successions. The devolu tion of the crown in European countries has usually been regulated by some kind of primogeniture, based partly on the rules which have governed private successions, partly on the indivisible character of the empire as it survived into modern times, and partly again on that " law of the sword" or rule of public policy which forbids the dis integration of the state. It is possible also that the Irish system of tanistry contained some of the elements of this method of royal succession. The custom was described by Spenser in his View of the State of Ireland shortly before the abolition of the Brehon law in the reign of James I. as follows : " It is a custom among all the Irish that, pre sently after the death of any of their chief lords or captains, they do presently assemble themselves ... to choose another in his stead, where they do nominate and elect for the most part not the eldest son nor any of the children of the lord deceased, but the next to him of blood that is eldest and worthiest, as commonly the next brother, if he have any, or the next cousin and so forth, as any is elder in that kindred or sept, and then next to him they choose the next of the blood to be tanaist, who shall succeed him in the said captaincy if he live thereunto." This system may be described as the election of an elder to be head of the sept (like the analogous election of a patriarchal " house- father " in a joint family), with an additional choice of an elder in reversion, to avoid dis putes as to succession in times of war. A similar rule may have obtained among the Teutonic tribes (Maine, Early Hist. Inst., 202) ; as the smaller chiefs sank into the position of nobles and were succeeded by their eldest- sons (for reasons connected with the priestly character of the king) in the possession of their offices and demesnes, a rule of the same kind might grow up with regard to the king or ruling chieftain, by which the eldest son would get not only his private demesne but also that "portion of land attached to the seignory or chiefry which went without partition to the tanaist." In this way a prin ciple of inheritance might be formed " which first of all extended from the demesne to all the estates of the holder of the seignory, however acquired, and ultimately deter mined the law of succession for the privileged classes throughout feudalized Europe " (ibid., 204, 208). This part of the subject is confessedly very obscure ; and it must not be forgotten that there were other and stranger modes of succession to chieftainships in Ireland and Scotland, which appear to have been unconnected with any such rules of primogeniture (Girald. Cambr., Top. Hibern., iii. 25 ; Ware, Ant. Hib., ii. 64 ; Ailred s Chron., ed. Twysden, 348 ; Robertson, Early Kings, . 36). Bede has left us a description of the rule among the Picts. " It was the custom in Pictland," as the saying went, that the kingdom should come from women rather than from men. (Com pare the similar customs among the ancient Spartans, Lycians, and Iberians in M Lennan s Studies, 101, 145.) The dignity never went from father to son, but when the king died the crown went to his next brother, or in default to his sister s son, or in any event to the nearest male relation claiming through a female and on the female side. The list of kings contains no instance of a son bearing his father s name, or of the same name belonging to both father and mother ; and the only fathers of kings of whom any account has survived are certainly known to have been foreigners, the one being a prince of Strathclyde and the other a grandson of the king of Northumbria. One and the same rule of primogeniture has been applied in England to royal and to private estates, with the exception as to the succession of the eldest daughter which has already been mentioned. The system varied greatly in the Conti nental countries according to the circumstances of each case. In France the crown was regarded as a partible in heritance under the first two dynasties. At the beginning of the llth century primogeniture had become the rule as to fiefs, offices, and dignities, and partly no doubt from ana logy and partly for reasons of public policy the crown was brought within the same rule under the house of Capet (Montesquieu, Esprit des Lois, xxxi. 32 ; Kenny, Laiv of Primogeniture in England, 10). But in this case there was a singular modification, known as the "Salic law" or "Salic rule" (as if it had been derived from the customs of the Salian Franks), by which the succession was event ually limited to males claiming through males. The origin of this law has been found in the fact that " the kings sprung from Hugh Capet succeeded one another, son to father, or brother to brother, for more than 300 years" previously to the disputes which arose in the 14th century as to the succession of an heir claiming through a female (Maine, Early Law and Custom, 154). The rule was adopted because it corresponded to the facts which had existed ; it was extended because it suited the circumstances of those states in which the sovereign had a large authority; in constitutional countries the rule has been considered to be against public policy, partly perhaps because the reign of a
female sovereign is regarded as favourable to popular liberties.