Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.295
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The examples of succession by Primogeniture which were found among the Benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. Some ruder tribes may have still practiced it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property, But there is still the question, Why did Primogeniture gradually supersede every other principle of succession? The answer, I think, is, that European society decidedly retrograded during the dissolution of the Carlovingian empire. It sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. The great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority,. and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organization older than the beginnings of civil communities. The lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by Adoption, but by Infeudation; and to such a confederacy, succession by Primogeniture was a source of strength and durability. So long as the land was kept together on which the entire organization rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. We may be perfectly certain that into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favor of one. Everybody would have suffered by the division of the fief. Everybody was a gainer by its consolidation. The Family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. It would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an English strict settlement.