1911 Encyclopædia Britannica/Primogeniture

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PRIMOGENITURE (Lat. primus, first, and genitus, born, from gignere, to bring forth), a term used to signify the preference in inheritance which is given by law, custom or usage, to the eldest son and his issue, or in exceptional cases to the line of the eldest daughter. The practice is almost entirely confined to the United Kingdom, having been abolished by the various civil codes of the European states, and having' been rejected in the United States as contrary to the spirit of the constitution. The history of primogeniture is given in the article SUCCESSION, while the existing English law will be found in the articles HEIR; INHERITANCE; WILL, &c. But it may be brieiiy said here that the English law provided that in ordinary cases of inheritance to land of in testates the rule of primogeniture shall prevail among the male children of the person from whom descent is to be traced, but not among the females; and this principle is applied throughout all the degrees of relationship. There are exceptions to this rule, as in the cases of “ gavel kind ” and “ borough-English, ” and in the copyhold lands of a great number of manors, where customs analogous to those of gavel kind and borough English have existed from time immemorial. In another class of exceptions the rule of primogeniture is applied to the inheritance of females, who usually take equal shares in each degree. The necessity for a sole succession has, for example, introduced succession by primogeniture among females in the case of the inheritance of the Crown, and a similar necessity led to the maxim of the feudal law that certain dignities and offices, castles acquired for the defence of the realm, and other inheritances under “ the law of the sword,” should not be divided, but should go to the eldest of the co-heiresses (Bracton, De Legibus, ii. c. 76; Co. Litt., 165a). There are also many other special customs by which the ordinary rule of primogeniture is varied. It may be remarked that the English law of inheritance of land creates a double preference, subject to certain exceptions and customs, in favour of the male over the female and of the first-born among the males. This necessitates the rule of representation by which the issue of children are regarded as standing in the places of their parents, called “ representative primogeniture.” The rule appears to have been firmly established in England during the reign of Henry III., though its application was favoured as early as the 12th century throughout the numerous contests between brothers claiming by proximity of blood and their nephews claiming by representation, as in the case of King John and his nephew Prince Arthur (Glanvill, vii. c. 3; Bracton, De Legibus, ii. c. 30).

See Pollock and Maitland, History of English Law; K. E. Digby, History of the Law of Real Property; Sir H. Maine, Ancient Law and Early History of Institutions; C. S. Kenny, Law of Primogeniture in England.