The Online Library of Liberty

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• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

NOTE N.

PRIMOGENITURE.

Much has been written in recent years about the origins of medieval jurisdiction and land tenure, and the peculiar complication of tenure with personal lordship and jurisdiction which we call feudalism; we mention, almost at random, the names of Brunner, Waitz, Fustel de Coulanges, Flach, Luchaire; but there is nothing to throw doubt on the general soundness of the luminous sketch given in this chapter. Maine returns to the subject in the latter part of ch. viii. At the end of that chapter an opinion is adopted, it seems from Kemble, that “some shade of servile debasement” attached to a Germanic king’s or chieftain’s personal companions. I have never been able to discover Kemble’s authority for this supposition, or to meet with any other acceptance of it. See, contra, Konrad Maurer in “Kritische Überschau,” ii. 391.

Further observations on Primogeniture by Maine himself will be found in “The Early History of Institutions,” pp. 124, 198-205. We may add to the brief mention of “parage” at p. 205 that the “paragium” of the Norman custumals has an important part in the Anglo-Norman nomenclature of Domesday Book. Groups of co-heirs holding “in paragio,” and represented, for the purposes of the service due to their lord, by one of them who is sometimes called the senior, are common in several counties (Maitland, “Domesday Book and Beyond,” p. 145; Pollock and Maitland, “H.E.L.” ii. 263-4, 276; Pollock in Eng. Hist. Rev. 1896, xi. 228, note 65). This arrangement is a strong illustration of the practical convenience of primogeniture for the lord when feudal service was really military service. Maine’s view that primogeniture originally had an official character seems to be thoroughly accepted; it would probably be found, if we had all the facts, that the occasional examples of primogeniture in servile or inferior tenures are to be explained by the tenement having been attached to some manorial or communal office. It would seem that, whether for reasons of convenience or because men liked to imitate the fashion of their lords, the general introduction of primogeniture in England was to some extent a popular movement. In 1255 the burgesses of Leicester alleged that they were being ruined by partible tenures, and procured a charter from their lord, Simon de Montfort, which Henry III. shortly afterwards confirmed, to change the course of descent to primogeniture (“Records of the Borough of Leicester,” ed. Bateson, Nos. xxiii. xxiv., the latter indorsed “carta quod hereditas sit ad communem legem”). On the whole subject Mr. Evelyn Cecil’s book “Primogeniture: A Short History of its Development in Various Countries, and its Practical Effects,” Lond. 1895, may be studied with advantage.

Chapter VIII. Page 237.