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XII.—On Archaic conceptions of property in relation to the Laws of Succession; and their survival in England
Published online by Cambridge University Press: 25 January 2012
Extract
Primogeniture, aided by legal powers and by the strong necessities of feudal polity, has become in this country the dominant form of succession to title and estate, and has consequently thrust out of consideration many other forms which exist here and there. Two of these other forms, Gavelkind and borough-English (so called), have received some attention from lawyers and legal antiquaries, and they obtain in many localities as the legal form of succession; but there are other customs which have been altogether neglected, and which obtain in only a few isolated localities. The lawyer at the bidding of statesmen has striven for the furtherance of the right of primogeniture, and every other custom has had to prove its case before it could obtain recognition. Therefore, in a certain sense the law has never recognised any other form of succession than primogeniture. But what I shall have to point out in the following pages is that in the annals of rural England there are many conceptions attached to the holding of property, which, though succumbing in law to primogeniture, have left a history behind which is well worth examining. Before Mr. Elton dealt with primogeniture and junior-right as common descendants from one parent, an examination of the right of primogeniture never led the inquirer beyond the area bounded by feudal history. But by examining the two forms of succession together it has been shown that we arrive at the archaic family.
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- Copyright © The Society of Antiquaries of London 1887
References
page 196 note a English Commonwealth, vol. i. p. 59.Google Scholar
page 196 note b Spencer's, Principles of Sociology, vol. i. p. 68Google Scholar. Cf. Tylor's Anthropology, p. 420.
page 197 note a Kamilaroi and Kurnai, p. 207.
page 197 note b Shooter's Kaffirs of Natal, p. 226.
page 197 note c A good instance may be mentioned among the Andaman Islanders, see Journ. Anthropological Inst. xii. 328, 349.
page 197 note d The Aryan Village in India and Ceylon, p. 76; Mr. J. D. Mayne in his Hindu Law and Usage, p. 188, sets forth the connection of joint-living with the origin of property very plainly.
page 197 note e Maine's Early Law and Custom, p. 252. Cf. Wallace's Russia, i. 135.
page 197 note f See Folk-Lore Belies of Early Village Life, p. 157.
page 197 note g Origins of English History, p. 404.
page 198 note a Pritchard's Polynesian Reminiscences, p. 109.
page 198 note b Polack's Manners and Customs of the New Zealanders, vol. i. pp. 204, 216.
page 198 note c Mr. Wright suggests that frequently the Anglo-Saxons occupied the Roman Villa, but I see little evidence of this, and the best authorities are against it.
page 198 note d Beda, Eccl. Hist. Bk. I. chap. xxv.
page 198 note e The exact evidence of this I have tried to trace out in my Folk-lore Relics of Early Village Life, and cf. Elton's Origins of English History, pp. 210 et seq.
page 199 note a This is fully discussed in Mr. J. D. Mayne's Hindu Law and Usage.
page 200 note a Primitive Property, p. 34, and consult Wallace's Russia, vol. i. p. 255.
page 200 note b Punjab Customary Law, vol. ii. p. 40, and ef. Mayne's Hindu Law and Usage, p. 180; Lewin's Wild Tribes of S. E. India, p. 257.
page 200 note c Taylor's Words and Places, 6th edit. P. 86, et seq.
page 200 note d Saxons in England, vol. i. pp. 65, 70.
page 201 note a Mavor's Collection of Voyages, iv. 41.
page 201 note b Land of the Midnight Sun, ii. 438.
page 201 note c Remains of Gentilisme and Judaisme (Folk-lore Society), p. 19.
page 201 note d Vol. viii. 29.
page 202 note a Origines Celticae, ii. 85.
page 203 note a A passage in Polack's New Zealanders (i. p. 27) suggests that as soon as the son was born, he, “boasting of an additional branch to the ancestral tree,” is superior to his progenitor.
page 203 note b Tupper's Punjáb Customary Law, ii. p. 188.
page 203 note c Du Chaillu's Land of the Midnight Sun, i. p. 393.
page 204 note a See Cobden Club Essays—Primogeniture.
page 204 note b Tupper's Punjáb Customary Law, ii. 188.
page 204 note c I will merely refer my readers to Ure's Agriculture of Kinross, 997, p. 57; and cf. Mason's Statistical Account of Ireland, vol. ii. p. 209, and Carew's Cornwall, p. 38.
page 204 note d But the idea spreads far beyond India. In Burmah, says Colonel Phayre, “it is considered that land cannot be alienated from the family it belongs to: there appears to be almost a religious objection to parting finally with it “—Ethnological Society, vi. 228; and one of our greatest difficulties in the Transvaal arose from the native idea that land was not saleable. See Correspondence, Parliamentary Paper, 1885 (c. 4588), p. 45.
page 204 note e This has been touched upon in Essays in Anglo-Saxon Law, p. 73.
page 205 note a Cf. also Hampson's Origines Patriciae, p. 343; and in that unsatisfactory work, Ross's Early History of Landholding among the Germans, ample evidence is collected from the laws proving the original indivisibility of family property.
page 205 note b See Leges Walliae, quoted by Mr. Elton, Origins of English History, p. 137.
page 205 note c See Sullivan's Introd. to O'Gurry's Lectures, i. p. 182. Also Brehon Law Tracts, vol. iv. p. cv.
page 205 note d Hist. Eng. Com. i. p. 66.
page 205 note e See my paper in Archaeologia, vol. xlvi. pp. 403–422.
page 205 note f I have duly discussed the archaic nature of these joint tenancies in my address to the Glasgow Archaeological Society, November 1884.
page 205 note g See Sinclair's Stat. Ace. of Scotland, vol. xiii. 310.
page 206 note a Hampson's Medii Ævi Kalendarium, i. 289. The same curious custom existed in Scandinavia. See Du Chaillu's Land of the Midnight Sun, vol. ii. p. 251.
page 206 note b Essays in Anglo-Saxon Law, p. 72; Elton's Tenures of Kent, p. 137; Spence's Court of Chancery, vol. i. 148–149.
page 207 note a English Village Community, pp. 176, 419.
page 207 note b It is curious to note that this idea seems to have occurred to Mr. Seebohm himself, for at p. 77 of his work he says, “They (the villani) possessed all the unity and indivisibility of an entailed estate and were sometimes known apparently for generations by the family name of the holders. But the reason underlying all this regular devolution was not the preservation of the family of the tenant but of the services due from the said land to the lord of the manor.”
page 207 note c Mr. Seebohm admits this when dealing with the Irish tribes, see p. 217. But indeed it is shown by many valuable examples. Grimm, Rechtsalterthümer, p. 539, says, the possession of a house was the source of all other rights; and in English law municipal rights are in many places attached to the house.
page 208 note a Hindu Law and Usage, p. 194. Compare the custom of the Andaman Islanders recorded in Anthropological Institute, vol. xii. p. 141.
page 208 note b Shillibeer's Customs of Taunton Deane, p. 42.
page 208 note c Hazlitt's Tenures of Land, p. 37.
page 208 note d ibid. 236.
page 208 note e ibid. 289.
page 208 note f ibid. 298.
page 209 note a Mayne's Hindu Law, p. 447.
page 209 note b Hindu Law and Usage, p. 187.
page 209 note c Tupper's Punjab Customary Law, vol. ii. p. 36.
page 209 note d For the Scandinavian evidence, see Du Chaillu's Land of the Midnight Sun, ii. 290.
page 210 note a Elton's Origins of English History, p. 404.
page 210 note b In Hardeman's Ancient Irish Deeds and Writings chiefly relating to Landed Property (Dublin, 826, p. 54), it is stated that “the consent of the entire tribe or family was necessary before an individual could alienate any part of the Inheritance. Deed No. xix. is a mortgage of lands belonging to Donald MacShane to Donald O'slattery. The conditions between Donald O'slattery and Donald MacShane are that it shall not be in the power of any person to redeem that land from Donald O'slattery, except Donald MacShane himself, his son or grandson. The green of Killeen is the place charged with his mortgage as is attested by Donald [ ] i.e. Sheeda and his children Finian and MacCon, and Mera, daughter of Bryan in like manner, and the children of Commeadha Mac-Loghlan, and many others of the race, who have given their permission and consent at both sides, a.d. 1502, this covenant has been entered into between them.”
page 211 note a Cf. Mayne's Hindu Law and Usage, p. 435.
page 211 note b ibid.
page 212 note a Sullivan's Introduction to O'Gurry's Lectures, vol. i. pp. clxxx-clxxxii.
page 212 note b Origins of English History, p. 190. The portions omitted from this quotation do not affect my argument.
page 212 note c Hindu Law and Usage, 462.
page 212 note d Lewin in his Wild Races of S. E. India gives an instance where eldest and youngest inherited to the exclusion of others, p. 280.
page 213 note a Maclean's Kafir Laws and Customs, p. 26.
page 213 note b Mayne's Hindu Law, p. 462.
page 213 note c In Polack's New Zealanders it is related how a certain chief, proposing to bring home a wife, the old wife objected until the chief promised “before her relations that her children only should have the inheritance,” vol. i. p. 50.
page 213 note d Notes and Queries. [I have lost this reference, but am certain of the fact].
page 213 note e Mason's Statistical Account of Ireland, i. 48.
page 213 note f Pennant's Tour in Wales, p. 406.
page 213 note g Burt's Letters from the Highlands, i. 63.