# Useful Links to Roman Law Materials. 2.1.287

Roman Law and Society, Useful Links to Roman Law Materials., Ancient Law. Latin.

Canonical: https://interlinea.aeterna-institute.org/library/latin/roman-law-and-society/useful-links-to-roman-law-materials/2.1.287

The mention of Primogeniture introduces one of the most difficult problems of historical jurisprudence. Though I have not paused to explain my expressions, it may have been noticed that I have frequently spoken of a number of "coheirs" as placed by the Roman Law of Succession on the same footing with a single Heir. In point of fact, we know of no period of Roman jurisprudence at which the place of the Heir, or Universal Successor, might not have been taken by a group of co-heirs. This group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. When the Succession was ab intestato, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of Primogeniture. The mode of distribution is the same throughout archaic jurisprudence. It certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation, and to reserve no privilege to the eldest son or stock. Some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the Roman. Among the Hindoos, the instant a son is born, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. On the son 's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent acquiesce, one son can always have a partition even against the will of the others. On such partition taking place, the father has no advantage over his children, except that he has two of the shares instead of one. The ancient law of the German tribes was exceedingly similar. The allod or domain of the family was the joint-property of the father and his sons. It does not, however, appear to have been habitually divided even at the death of the parent, and in the same Way the possessions of a Hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the Family in India has a perpetual tendency to expand into the Village Community, under conditions which I shall hereafter attempt to elucidate. All this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. Here then emerges the historical difficulty of Primogeniture. The more clearly we perceive that, when the Feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the Roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither Roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property.

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